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“Unchecked power that is, quite frankly, frightening.”

That is a judge’s description, as reported by the NY Times, of Justice Department’s actions in holding an American citizen in military custody in Iraq for 11 weeks without allowing him to talk to an attorney. According to the Times, the detainee refused to talk to F.B.I. interrogators without a lawyer after he was warned of his Miranda rights to remain silent and have a lawyer present,

“The individual stated he understood his rights, and said he was willing to talk to the agents but also stated that since he was in a new phase, he felt he should have an attorney present,” the department said in a court filing Thursday afternoon. “The agents explained that due to his current situation, it was unknown when he would be able to have an attorney, and the individual stated that it was O.K. and that he is a patient man.”

The filing is part of a habeas corpus action filed by the ACLU asking for access to the detainee and a ruling that his continued indefinite detention without charges is illegal. The Justice Department has argued in part that the group has no standing to bring the petition because it has no relationship with the prisoner nor permission from his relatives to represent his interests in court. The judge in the case rejected this argument, saying it was  “circular reasoning” since the government’s own actions prevented him or his relatives from having contact with the lawyers.

The judge then made the comment about frighteningly unchecked power, describing the government’s position as saying it could “snatch any U.S. citizen off the street and hold him as an enemy combatant in another country” indefinitely without letting him or her talk to a lawyer.

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Search Warrant Means There’s Evidence? Not So Much….

The recent search warrant executed at Paul Manafort’s residence has generated a lot of speculation about how much evidence of criminal wrongdoing there must have been behind the search warrant affidavit justifying the search. But as the Washington Post  points out, what few systematic studies of the search warrant process there are suggest what most police officers, defense attorneys and  prosecutors will say: in most jurisdictions, it’s incredibly easy to get a warrant. Most judges exercise little to no scrutiny at all, and the few who do can be circumvented. You just take your affidavit to another judge. The federal process is described by former prosecutor Ken White:

“In the federal system, federal agents present search warrant applications to United States Magistrate Judges for review. Magistrate Judges aren’t nominated by the President and confirmed by Congress like United States District Court judges — they are appointed by other federal judges for set terms, and have a reduced level of authority and responsibility. They do a lot of the unglamorous day-to-day work of the federal judiciary.

The magistrate judge reviews the search warrant application and, almost always, signs the warrant approving it . . .  I think that magistrates can be a little rubber-stampy at times. But probable cause is a pretty low bar.”

As the article’s author points out, the impression that warrants for no-knock raids are carefully scrutinized and waged against only people for whom there is a significant amount of incriminating evidence just isn’t true.

NY Times Discovers Unaccountability

The New York Times reports that of the 23 cases in which the Brooklyn DA’s Conviction Review Unit has asked judges to free defendants who were wrongfully convicted by their office, only a handful have asked for anyone to be held accountable. The Aug. 8 article by Alan Feuer recounts the case of Jabbar Wsahington, who spent 20 years in prison after a prosecutor intentionally withheld evidence and coaxed a witness into giving testimony that was purposefully misleading; in court, the chief of the Conviction Review Unit said: “There’s a lot of — perhaps blame is maybe the wrong word — but responsibility that goes around on that,” he said. Feuer says:

“It might seem like an obvious step for prosecutors seeking to reverse a tainted conviction to declare in open court who in law enforcement had a role in compromising the case. But assigning blame, at least in public, doesn’t happen often — even in troubled cases.”

One hopeful note in the article is that prosecutorial accountability has become an issue in the DA race in Brooklyn. Ama Dwimoh, one of six challengers seeking to defeat Eric Gonzalez, the acting district attorney, called for a sweeping review of how Mr. Gonzalez has handled bungled cases. And at the end of July, Ms. Dwimoh, who once worked in the district attorney’s office, accused her former employer of never holding anyone accountable for the many botched convictions it has helped overturn.

And, of course, accountability does not necessarily mean criminal liability. Professional discipline could be a powerful disincentive as well. And there is this:

“The accountability thing is often what stops people from embracing this process,” said John Hollway, a professor at the University of Pennsylvania Law School who studies wrongful convictions. “They think that accountability means punishment, but it can also mean improving the system.”

263 Overturned Convictions – 16 New Suspects

A fascinating investigation by Hella Winston in the Daily Beast, looking at 263 of the 2,034 known exonerations in the United States since 1989 – based on criteria chosen by Winston: “did not hinge on DNA evidence…; murder cases because murder typically has no statute of limitations, and therefore can be prosecuted at any time…: the past 11 years on the assumption that it might be easier to get information about relatively recently vacated convictions than those overturned several decades ago.” The takeaway: 263 overturned murder convictions but only 16 new suspects charged. Why?

  • In 24 cases, the true perpetrators—determined either by credible confessions and/or objective evidence—were either dead or in prison, serving a long sentence for a different crime, sometimes in another state. While neither outcome represents justice for the victims in the wrongful conviction cases, those murderers are nonetheless “off the streets.”
  • In 8 other cases, the true perpetrators appear to be beyond the reach of law enforcement because of immunity or plea deals given to them by prosecutors (these cases tended to involve violence perpetrated by gangs).
  • In another 7 cases, the person who was wrongfully convicted was convicted along with at least one or more others who, it seems fairly clear, were actually responsible.

As for there rest, Winston argues:

  • Evidence grows cold as time passes.
  • Prosecutors don’t want to admit defeat by going after a second defendant for an old crime. They don’t have much credibility when they have to concede they got it wrong the first time around.
  • Defendants who are charged decades after an old crime typically point to the evidence introduced at the first trial and say to jurors: there’s your reasonable doubt right there

 

“Why Innocent People Plead Guilty,” Redux

The Atlantic discusses the problem with plea bargaining: excessive prosecutorial power and over criminalization result in innocent people pleading guilty. The National Registry of Exonerations reports that of 2,006 recorded exonerations since the project started keeping track in 1989, 362 of those, or 18 percent, were based on guilty pleas.

The article discusses some possible solutions to make plea bargaining either more accountable or less common. They suggest the process could be altered to afford defendants more protection, or the jury trial could be simplified to ensure more people take advantage of this right.

1: Regulate the process. “Plea bargaining in the United States is less regulated than it is in other countries,” said Jenia Turner, a law professor at Southern Methodist University who has written a book comparing plea processes in several U.S. and international jurisdictions. As a result, states are independently adopting measures to inject the process with more transparency here, more fairness there. In Connecticut, for example, judges often actively mediate plea negotiations, sometimes leaning in with personal opinion on an offer’s merit. In Texas and North Carolina, along with a few other states, both sides share evidence prior to a plea.

2. More trials.  A half-step in this direction has long been practiced in Philadelphia, where bench trials—before a judge but no jury—are common. By avoiding the jury-selection process, known as voir dire, bench trials dramatically shorten the length of the proceedings while a defendant’s guilt must still be proven beyond a reasonable doubt. In 2015, excluding cases that were dismissed, only 72 percent of criminal defendants in Philadelphia pled guilty, as opposed to 97 percent federally; 15 percent pursued a bench trial.

 

3. Expand the scope of bargaining. John Rappaport, a law professor at the University of Chicago, proposes a more radical idea: If pretrial bargaining with the prosecutor is going to take place, it should embrace more than the basic exchange of guilt for leniency. Defendants should be able to bargain across the trial process itself, offering simplicity in exchange for a lesser charge. What if a defendant agreed to a trial before six or three jurors, instead of 12? Or what if the standards of evidence were downgraded, from beyond a reasonable doubt to a preponderance of the evidence?

“It’s all fairly straightforward, and wouldn’t require any real administrative framework, but it’s foreign,” Rappaport said. “If a defense lawyer approached a prosecutor and said, ‘Hey, let’s do away with voir dire and take the first 12 jurors who walk in the room,’ the prosecutor would be taken aback.”

Montana Passes Misdemeanor Expungement Law

On April 13, Montana Governor Steve Bullock signed HB 168, which gives Montana courts the power to “expunge” the records of misdemeanor convictions after completion of sentence, effective October 1 of this year. Montana is now the 30th state since 2012 to enact some form of record-closing law, or to expand an existing one. HB 168 is particularly broad compared to many other expungement statutes across the country in that is does not exclude certain types of minor offenses (e.g., Missouri‘s new expungement law excludes violent, sex, and driving offenses) or offer only limited relief (e.g., New York’s new sealing statute allows access for a variety of purposes), Montana’s law gives anyone convicted of misdemeanors, no matter how many or how serious, a one-time opportunity to clear their record entirely. The new law provides that expungement means “to permanently destroy, delete, or erase a record of an offense from the criminal history record information system maintained by the department of justice in a manner that is appropriate for the record’s physical or electronic form.” There is no exception for law enforcement, much less for licensing or employment, and only a person’s fingerprints remain “for investigative purposes.”

For all but certain specified serious crimes, expungement is “presumed” unless “the interests of public safety demand otherwise” — if five crime-free years have passed since completion of sentence, or if the petitioner is seeking opportunities for military service that are otherwise closed to him and is not currently charged with a crime. The presumption in favor of relief absent a public safety finding is similar to the new Missouri and Indiana expungement laws.

 

Two Stories About Two Systems

Two recent stories about the two different systems of criminal justice in America, for the haves and have-nots. From the Guardian, an article about the need for bail reform in California, “Wealthy murder suspect freed on bail as man accused of welfare fraud stuck in jail” –

and from the Marshall Project, a story about Kristen Anderson, a social worker at The Bronx Defenders, a public defense office serving low-income communities in New York City, who talks about the difference between her own experience with bipolar disorder and the clients she works with:

‘I was diagnosed with bipolar disorder the year I graduated from college. It happened after my first full-blown manic episode, in which I sped on a highway at over 100 miles an hour after buying a $3,000 engagement ring on a whim, planning to surprise my then-boyfriend halfway across the world. Needless to say, this plan did not come to fruition, and my spontaneity, risk-taking, and impulsivity soon morphed into terrifying psychosis. I was suddenly convinced that my reality was just a big stage and everyone was acting out a script, and I was hospitalized and prescribed anti-psychotics and mood stabilizers. About four years after my first episode, I pursued a master’s degree in social work with the intention of becoming an advocate for those like me. In a mental health policy class, I remember debating the use of physical restraints, and arguing vehemently against the practice. My classmates did not know that I myself had been strapped to ER beds and restrained in seclusion rooms.But it was in that same class that I learned about the deinstitutionalization and subsequent over-incarceration of people with mental illnesses, and began to slowly comprehend my privilege as a white woman whose circumstances had allowed her to lead a productive and fulfilling life in between episodes. Now that I am a social worker at the Bronx Defenders, I’ve met many people like Raheem: men and women of color struggling with mental illness while trying to survive in the South Bronx, one of the poorest districts in America. Many end up ensnared in the criminal justice and immigration systems instead of getting the health care they need.’

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