Category Archives: Criminal Justice

Here Comes The Judge

This is why ethical, competent Judges matter.

The linked article from The Washington Post is one of many similar stories we awoke to on May 12th. The “back story” –William Barr’s frontal assault on both the rule of law and the integrity of the Department of Justice by petitioning to drop the case against Michael Flynn–enraged patriotic Americans; it outraged lawyers in particular. (Lawyers and former lawyers tend to think that the rule of law matters. A lot.)

When news broke of this unprecedented and dishonest pleading, my hope was that the judge presiding over the case–who had shown no particular sympathy for Flynn–would deny it. I assumed that Barr knew such a denial was probable. However, Barr also knew that the mere fact that the DOJ had filed such a pleading would add plausibility to the President’s multiple lies about the Mueller investigation and the wacko conspiracy theory he’s calling “Obamagate.”

In other words, no matter what the judge ruled, the mere fact that Barr submitted the pleading would be a “win/win” for the forces of obfuscation, and would become part of  Trump’s Big Lie about a nefarious “Obamagate” plot.

The judge outsmarted him. Bigly.

A U.S. judge put on hold the Justice Department’s move to drop charges against Michael Flynn, saying he expects independent groups and legal experts to argue against the bid to exonerate President Trump’s former national security adviser of lying to the FBI.

U.S. District Judge Emmet G. Sullivan said in an order Tuesday that he expects individuals and organizations will seek to intervene in the politically charged case. Having others weigh in could preface more aggressive steps that the federal judge in Washington could take, including — as many outside observers have called for — holding a hearing to consider what to do.

Sullivan also appointed a retired judge to argue against the DOJ’s request.

Judge Sullivan said he will set a schedule for outside parties to argue against the claims made in the Justice Department’s effort to drop the charges. Amicus briefs will be allowed from parties who believe they have interests that would be affected by the ruling, or from
parties or organizations with “unique information or perspective that can help the court.”

The nearly 2000 lawyers who formerly worked for the DOJ and recently signed a letter demanding Barr’s resignation would certainly qualify as having a “unique perspective.”

So would a group that identified itself as “Watergate Prosecutors,” who had filed a unique request a day earlier. They asked permission to file a friend-of-the-court brief addressing the need for independent scrutiny and oversight to “ensure that crucial decisions about prosecutions of high-ranking government officials are made in the public interest.”

“The integrity of prosecutorial decision making is a cornerstone of the rule of law,” they wrote. “Amici have a special interest in restoring the public trust in prosecutorial decision making and in public confidence in the viability of future independent investigations and prosecutions if the results of such work are likely to be subjected to reversal by transparent political influence.”

What is especially gratifying is that the Judge’s order not only allows these and other parties to file objections to the Justice Department’s move, but that such objections could open the door for adversarial proceedings in which arguments for and against Barr’s effort to dismiss the case would be heard.

Especially gratifying is the conclusion that such objections would also permit, if the judge chooses, requiring both sides to produce evidence and revisit the case for and against Flynn.

Instead of allowing Trump to use Barr’s pleading to confuse voters and sow even more distrust of the government he was elected to manage, the Judge’s move might allow re-litigation of the charges and re-airing of the evidence–something quite contrary to what Trump and Barr were hoping to accomplish.

As Jean-Luc Picard might say, “Make it so.”

Karma’s a bitch. I love it.

 

The #MeToo Dilemma

This is a hard post to write, because I want to be clear about what I am–and am not–saying.

When the #MeToo movement emerged, I applauded. Like most women, I’d encountered unwanted “approaches” from men ranging from boorish to significantly worse; like most of the women I know, I get livid when complaints about sexual assaults are dismissed with “well, what was she wearing?” or other responses blaming the victim or suggesting that the woman was somehow “asking for it.”

When #MeToo accountability began, I was saddened to learn about Bill Cosby, but the number of accusations made it plain that he wasn’t the person he portrayed on TV. And while it doesn’t speak well for my surrender to schadenfreude, I was actually thrilled with the verdict against Harvey Weinstein.

Holding predators–not their victims– responsible is long overdue.

But. (You knew there was a “but” coming…)

Taking women seriously is not the same thing as uncritically believing anything and everything any woman says. An accusation of impropriety or assault should be considered a  rebuttable presumption–true, until and unless there is probative evidence to the contrary.

In criminal law class in law school, we learn that rape is both the most under-reported and most over-reported crime. Under-reported because victims were reluctant to come forward for all of the reasons that have been highlighted by the #MeToo movement–over-reported because there were also unfair and untrue accusations leveled, sometimes intentionally, sometimes by emotionally unwell persons.

The biggest problem is determining the facts in these situations, because that they are inevitably “he said/she said.”

Lawyers who specialize in prosecuting sexual assault charges must evaluate whether evidence and testimony are consistent with the accuracy of an accusation. And that brings me to a comprehensive review of the complaint lodged against Joe Biden by Tara Reade, a former staffer, recently written by one such prosecutor. 

I really urge you to click through and read the entire column.

The alleged assault occurred in 1993. As the prosecutor notes, the 27-year delay itself is not reason to disbelieve her. But the story she tells has changed significantly since she first came forward.

As a lawyer and victims’ rights advocate, Reade was better equipped than most to appreciate that dramatic changes in sexual assault allegations severely undercut an accuser’s credibility — especially when the change is from an uncomfortable shoulder touch to vaginal penetration.

Reade said she complained at the time to Biden’s executive assistant, and to two top aides– all three adamantly deny that she ever approached them. (They didn’t simply have “no recollection.” They strongly refuted the claim). She also says she filed a written complaint with the Senate personnel office, but reporters could not find any record of such a complaint there, and when the Times asked her for a copy, she said she didn’t have it. Yet she had kept and provided a copy of her 1993 Senate employment records.

She has told wildly inconsistent stories about why she left Biden’s employ, and in the years following her stint on his staff, she has been highly complimentary of him. Evidently, it wasn’t until she had become a fervid Sanders supporter that the accusation of assault changed from “rubbed her shoulders” to digital penetration.

There’s much, much more detail in the linked article, and most of it suggests someone emotionally unstable rather than intentionally vindictive–but none of it enhances her credibility. Quite the contrary.

And as the writer notes, most men who assault women are serial abusers.

Last year, several women claimed that Biden made them uncomfortable with things like a shoulder touch or a hug… The Times and Post found no allegation of sexual assault against Biden except Reade’s.

It is possible that in his 77 years, Biden committed one sexual assault and it was against Reade. But in my experience, men who commit a sexual assault are accused more than once … like Donald Trump, who has had more than a dozen allegations of sexual assault leveled against him and who was recorded bragging about grabbing women’s genitalia.

I particularly agree with the final paragraph.

We can support the #MeToo movement and not support allegations of sexual assault that do not ring true. If these two positions cannot coexist, the movement is no more than a hit squad. That’s not how I see the #MeToo movement. It’s too important, for too many victims of sexual assault and their allies, to be no more than that.

Agreed.

The #MeToo movement was a major step forward for all women, especially but not exclusively those who have been victims of sexual assaults. If it is perceived as an indiscriminate anti-male crusade rather than a pro-justice remedial effort– if it is bullied into becoming a chorus that will automatically defend all accusations irrespective of their credibility– it will lose the hard-won and very important legitimacy that makes it effective.

 

How Do We Spell Corruption? T-R-U-M-P

Well, I suppose the headline really should read “Trump Administration,” since Trump has managed to assemble a group of people who are both magnificently inept and thoroughly dishonest.

It’s something every day–usually, thanks to the Coronavirus pandemic, buried under the propaganda and disinformation being spewed every day by the buffoon-in-chief.

NBC recently reported on a story first broken by Pro Publica.

On a Tuesday just before Halloween in 2018, a group of federal prosecutors and agents from Texas arrived in Washington. For almost two years, they’d been investigating the opioid dispensing practices of Walmart, the largest company in the world. They had amassed what they viewed as highly damning evidence only to face a major obstacle: top Trump appointees at the Department of Justice.

The opioid crisis was the most pressing public health issue facing the country before the arrival of the current pandemic. What the investigators had uncovered was proof of clearly criminal activity by Walmart–activity that played a significant part in creating and sustaining that crisis.

Opioids dispensed by Walmart pharmacies in Texas had killed customers who had overdosed. The pharmacists who dispensed those opioids had told the company they didn’t want to fill the prescriptions because they were coming from doctors who were running pill mills. They pleaded for help and guidance from Walmart’s corporate office.

Investigators had obtained records of similar cries for help from Walmart pharmacists all over the country: from Maine, North Carolina, Kansas and Washington, and other states. They reported hundreds of thousands of suspicious or inappropriate opioid prescriptions. One Walmart employee warned about a Florida doctor who had a “list of patients from Kentucky that have been visiting pharmacies in all of central Wisconsin recently.” That doctor had sent patients to Walmarts in more than 30 other states.

How did “corporate” respond? By repeatedly forbidding pharmacists from cutting off any doctor. Pharmacists were told to “evaluate each prescription on an individual basis.”  One opioid compliance manager even sent an executive an email (viewed by ProPublica, which confirmed its contents), that Walmart’s focus should be on “driving sales.”

The prosecutor investigating Walmart’s behavior prepared to indict the corporation for violating the Controlled Substances Act.  She had the support of her boss, who also believed the evidence justified what would have been an unprecedented step.(Fortune 500 companies don’t get indicted–gee, I wonder why…)

Before the Texas prosecutors could file their case, however, Walmart escalated concerns to high-ranking officials at the DOJ, who then intervened. Brown was ordered to stand down. On Aug. 31, 2018, Trump officials officially informed Walmart that the DOJ would decline to prosecute the company, according to a letter from Walmart’s lawyer that lays out the chronology of the case.

The Texas prosecutors appealed to higher-ups at DOJ, pointing out that dispensing opioids without a legitimate medical purpose is legally indistinguishable from dealing heroin.

Criminal law says if a person or entity is willfully blind or deliberately ignorant, they are as liable as if they had acted intentionally. Once Walmart’s headquarters knew its pharmacists were raising alarms about suspicious prescriptions, but the compliance department continued to allow — even push — them to fill them, well, that made the company guilty, the Texas prosecutors contended.

This wasn’t a situation where a few employees “went rogue.”  Worse, the company was a repeat offender; seven years earlier, Walmart entered into a settlement with the DEA in which it promised to improve its controls over the abuse of opioid prescriptions.

The DOJ didn’t budge, so prosecutors tried another tactic: criminal charges against individual employees. Trump officials blocked that, too. Then prosecutors tried to bring a civil case, and Trump officials blocked that.

The lengthy story at the link is detailed enough to dispel any doubts about how thoroughly this administration has corrupted the DOJ.

The news of the Walmart investigation comes at a time when the Trump administration is being assailed for legal favoritism and cronyism. Attorney General Bill Barr has inserted himself into multiple investigations of Trump friends and associates. In February, four prosecutors on the case of Roger Stone, a Trump friend and adviser, quit the case in protest after political appointees undercut their sentencing recommendation.

The Trump DOJ has also pulled back on white-collar and corporate investigations and prosecutions. White-collar prosecutions are at a record low. Walmart itself seems to have already benefited from the Trump administration’s approach to corporate misconduct. The company was the subject of a seven-year investigation into bribery allegations in Mexico and around the globe. The Obama administration sought $600 million in fines, according to The New York Times, which broke the story, but failed to reach a resolution with the company. The Trump DOJ settled the charges for $282 million in June 2019.

It certainly pays to have low friends in high places…..

 

Lies, Damned Lies and Sanctuary Cities

A week or so ago, a commenter to this blog asked for an explanation of Sanctuary Cities and States. The question was understandable, because the Trump Administration–beginning back when Jeff Sessions was Attorney General– has consistently misrepresented the issues involved.

Anti-immigration activists and apologists for the administration insist that “sanctuary” cities and states are places where the rule of law has been suspended — places where evil Democratic-controlled governments have formed alliances with “open borders radicals” (as Sessions once put it) to prevent Immigration and Customs Enforcement (ICE) agents from arresting unauthorized immigrants even when they’ve been convicted of crimes.

Back when Sessions was threatening to withhold federal grants from cities and states that dared to declare themselves Sanctuaries, Vox did one of its “explainer” columns, in an effort to dispel misunderstandings on both sides of the political divide with what it termed “the wonky truth.”

The federal government has spent the past 20 years using local government (especially law enforcement) as a force multiplier to help it find, arrest, and deport immigrants more efficiently — and for almost as long, progressives have been trying to reassert local autonomy. At this point, the line between “obstructing” federal law enforcement and simply deciding not to help isn’t as clear as one might expect.

In the courtroom, the fight over sanctuary cities is narrow and technical. Outside the courtroom, it’s a culture war.

One of the problems is that–as the article points out–“Sanctuary city” is not an official government term. In fact, it has no legal meaning.

Lots of people use the unofficial term “sanctuary city” to refer to local jurisdictions (not just cities but counties and sometimes states) that don’t fully cooperate with federal efforts to find and deport unauthorized immigrants. If that sounds vague, that’s because it is, and it gets at the tension between federal policy and local law enforcement generally used to carry out those laws.

One reason for the confusion is that local police departments aren’t legally required to assist the federal government with just any policy the federal government might want to enforce. In 1997, in Printz v. United States, the Supreme Court confirmed that the federal government “may neither issue directives requiring the States to address particular problems, nor command the State’s officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”

Immigration law is federal law. Not only is immigration enforcement not a local law enforcement priority–as the article points out, local police don’t usually get involved with the enforcement of, say, federal tax law either–most police chiefs argue that helping apprehend otherwise law-abiding immigrants is a “net negative” for local law enforcement, because it makes immigrant communities leery of police and less likely to report crimes or cooperate with investigations.

So exactly how much assistance local governments should provide in immigration enforcement is an ongoing fight. At heart, it’s been a policy fight over what local governments should do. But under the Trump administration, in particular, it’s taken on the color of law: the idea that cities are refusing to do something they’re obligated to do.

The Trump administration alleges that local ordinances or state laws that bar the sharing of information about immigrants — like California’s SB 54, which prevents jail officials from telling ICE when a prisoner will be released (in many cases) unless ICE has a warrant signed by a judge — violate the federal law. Cities and states that have passed such policies, however, argue that sharing information about when someone will be released from jail or prison is different from sharing information about their immigration status, so it’s legal for the state to put restrictions on the former.

Whatever the technical legal arguments, the real fight over sanctuary cities or states is political and cultural. As the Vox article notes, in the aftermath of Trump’s election, a number of mayors signaled their “resistance” by declaring themselves sanctuary cities. It was also a way to reassure immigrant residents that while Trump might be making them feel unwelcome in red America, they would always be welcome in America’s (almost all blue) cities.

In response, Republicans have continued to stoke fears with dishonest rhetoric about those “criminal immigrants” and blaming cities and states controlled by Democrats.

Today’s Republicans are waging war with anyone who is  “other.” Meaning anyone who isn’t a white Christian native-born male.  They’re just reluctant to put it that baldly, so they settle for exaggeration and confusion.

 

 

Extortion–And Susan Collins

Well, Susan Collins was right–sorta. Trump did learn a lesson from the Impeachment whitewash that she and the other Republican Senators handed him.

The lesson? Extortion works and I can keep doing it.

Earlier this week, Trump tweeted:

I’m seeing Governor Cuomo today at The White House. He must understand that National Security far exceeds politics. New York must stop all of its unnecessary lawsuits & harrassment, start cleaning itself up, and lowering taxes. Build relationships, but don’t bring Fredo!

This, of course, is vintage Trump, displaying both his trademark ignorance of how government actually works and his mob-godfather behavior.

Letitia James, New York’s Attorney General responded to the obvious ignorance.

When you stop violating the rights and liberties of all New Yorkers, we will stand down. Until then, we have a duty and responsibility to defend the Constitution and the rule of law.

BTW, I file the lawsuits, not the Governor.

As commentators have noted, this new threat followed a more generalized version that Trump had included in his delusional, fact-free State of the Union speech. In that speech, he threatened reprisals against sanctuary cities and states (mischaracterizing, as usual, what sanctuary laws say and do–it really is amazing how impervious he has been to learning anything in the three years he’s held office).

It also followed a previous, petty retaliation against New York, described by a Daily Kos contributor:

When the Department of Homeland Security announced on Feb. 7 that residents of New York would no longer be allowed to participate in programs such as Global Entry that speed passengers through airport security, it seemed like an act of petty vengeance. But then … petty vengeance is Donald Trump’s middle name. He just spells it with a J. So the idea that Trump would make a move designed to irritate millions of New Yorkers because their state passed laws supporting immigrants seemed absolutely believable.

But as it turns out, Trump wasn’t acting out of pure retaliation. Not at all. On Thursday Trump fired off a tweet making it clear that the real purpose behind making New Yorkers go to the back of the line was extortion—to force the state into leaving his taxes, his company, and his friends alone.

After all, it worked so well in Ukraine.

For a more in-depth discussion of this latest, astonishingly brazen effort to obtain a personal quid pro quo–threatening to withhold money meant to protect the citizens of New York unless that state dropped its multiple investigations into his criminal activities–you really should visit (or revisit, if you have already seen it) this discussion on Morning Joe.

Once again, the word that comes to mind is chutzpah.

What I find so astonishing is not the criminal behavior itself–and make no mistake, it is criminal, although I’m sure that the blowback will be dismissed with Trump’s usual “it was a joke” disclaimer (this from a man who wouldn’t know humor if he encountered it)– but the chutzpah of tweeting it out for the whole world to see. All that was missing was “Nah nah nah–you can’t impeach me! I’m protected by the spineless, dishonest, unAmerican Republicans in Mitch McConnell’s Senate.”

Yes indeed, Senator Collins. He certainly learned a lesson…