Category Archives: Criminal Justice

Speaking Of Accountability…

Here  are a couple of sobering statistics from The Brookings Institution:  A Black person is killed about every 40 hours by police, and Black people are 3.5 times more likely than white people to be killed by police when they are not attacking or do not have a weapon.

The research also  shows  that, typically, police officers aren’t charged in these killings of unarmed Black people, and even when they are, they are almost never convicted.

As the linked report notes,

In policing, people often talk about bad apples. Well, bad apples come from rotten trees, and the rotten trees are law enforcement agencies imbued with structural racism. Standard processes for holding police officers accountable, issuing civil payouts to victims of brutality, and rehiring fired officers are a few of the factors that contribute to the entrenchment of racism and police brutality.

The  report outlines some  of  the reasons for the  lack of accountability, and  makes two recommendations for improvement.  The first  recommendation is–or should be–obvious:  don’t rehire–or shuffle around– officers who have been fired for misconduct.  Those  officers should not be able to work in law enforcement again.

This recommendation is receiving bipartisan support at the federal level. It is part of Trump’s recent Executive Order and the George Floyd Justice in Policing Act that passed in the House of Representatives.

The second recommendation is one I  hadn’t previously encountered, and  as  a former Corporation Counsel who  supervised these payments, I  can tell you  that  it makes a lot of sense.  It  involves the restructuring of  compensatory payments. Currently, when a lawsuit  is brought alleging misconduct  by police, and that  lawsuit is either won by the plaintiff or settled,  payment of damages comes from the general funds of the city.  Brookings  advocates moving the source of  payment from taxpayer money to police department insurance policies.

We aren’t talking  about insignificant  funds. As  Brookings reports,

Eventually, there will be a large civil payout for the death of George Floyd. The Floyd family’s taxpayer money will be used to pay them for his dehumanization and killing. Due to qualified immunity—the legislation that often prevents officers from facing civil culpability—officers are typically immune from the financial impacts of these civil payouts. Since 2010, St. Louis has paid over $33 million and Baltimore was found liable for about $50 million for police misconduct. Over the past 20 years, Chicago spent over $650 million on police misconduct cases. In one year from period from July 2017 through June 2018, New York City paid out $230 million in about 6,500 misconduct cases. What if this money was used for education and work infrastructure? Research suggests that crime would decrease.

The report cites parallels:  In health care, for example, physicians and hospitals carry malpractice insurance. Even if the city  uses  taxpayer funds to cover the police department’s malpractice insurance premium, there are  real benefits to this approach; for one thing,  if the city’s malpractice premium goes up, the city will get valuable information  about which police officers, like which physicians and which hospitals, are responsible.

These proposals merit consideration. Another big  step forward would be the amendment  or elimination of the doctrine of qualified immunity, which I wrote  about  last  month.

Thanks to the  ubiquity  of cellphone cameras, well-meaning Americans can  no longer tell themselves that all police officers are “good guys” and anyone reporting brutality or other lawless behavior must  have deserved it. We’ve seen too much. On  the other  hand, it  is really important that we restore respect  for law enforcement, and for the officers who are following the rules and doing a  dangerous job in order  to  keep communities safe. We won’t restore that respect and encourage co-operation with law enforcement until there are structural changes that remove the “safe harbors” exploited by the bad  apples who   undeniably exist.

These approaches are worth considering–as are the suggestions for relieving police of duties more  logically discharged by social workers and/or medical personnel. (Whoever decided to label that proposed shift of responsibilities “defunding police” should be banned from engaging in any policy debate ever again…)

 

Qualified Immunity

Putting aside for the time being the unfortunately-labeled effort to “defund the police,” we should definitely consider other steps that might be taken to return a measure of accountability to the nation’s police departments.

We might begin by repealing–or at least significantly narrowing–the doctrine of Qualified Immunity.

A bit of background: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

As Ruth Marcus recently wrote in a column for the Washington Post,  that’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine dubbed “qualified immunity.” As the judge in one recent case has noted, it might just as well be called “absolute immunity.”

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

A case from 1982, Harlow v. Fitzgerald established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’” As a post on Lawfare explained,

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” Her criticism– in an opinion which Justice Ruth Bader Ginsburg joined– pointed out that the doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

It is past time for this doctrine to be dramatically limited. It is bad law and worse policy, and it insulates reckless police from the consequences of obviously wrongful behavior.

Law And Order

No mentally-competent American still believes that Donald Trump is (1) honest (2) intelligent (3) informed or (4) sane. In a way, we are probably fortunate that he is so incredibly incompetent and unable to restrain himself from broadcasting his idiocy–if he was smart and just as corrupt, he could pretend to be other than what he is. Fortunately, he is too stupid to hide what he is.

Give him credit for one thing, though: he knew enough to commute Roger Stone’s sentence rather than pardoning his creepy co-conspirator.

The difference is significant: a pardon erases the conviction of guilt. A President’s decision to commute a sentence, however, doesn’t eliminate a federal conviction or imply that the person was innocent. It doesn’t even remove the ramifications of a criminal conviction, such as losing the right to vote or inability to hold elected office.

So–since even Trump must have recognized that letting Stone off the hook via either mechanism would engender huge blow-back–why not give his old pal a pardon?

Mother Jones asks–and answers–that question.

Why the second-class treatment of a commutation instead of a pardon? Wasn’t Stone important enough for a pardon?

But wait. Someone who gets a pardon can no longer invoke the Fifth Amendment as a justification for refusing to testify in court. If Stone were called in some other case, he’d be required to spill any beans he had. But if I understand the law correctly, a commutation is more limited. The conviction stands, and the possibility of putting yourself in further jeopardy remains. Thus your Fifth Amendment rights stand.

So if you wanted to help out a buddy, but you also wanted to make sure he couldn’t be forced to provide dangerous testimony in the future, commutation sure seems like the best bet, doesn’t it?

Reactions to the commutation have reminded us that Trump has either pardoned or commuted the sentences of a long list of other truly despicable–and unambiguously guilty– men: Joe Arpaio (Contempt of Court) Michael Milken (Fraud)  Scooter Libby (Perjury) Eddie Gallagher (War Crimes) and Rod Blagojevich (Corruption) come to mind.

There is another interesting wrinkle, legally, to Trump’s latest favor to the dark side.

Seth Abramson, an attorney and commentator, has characterized Stone’s commutation as that of a “co-conspirator,” and opined that–because it amounts to a “self-pardon”–it is obstruction of justice and thus unconstitutional. Nancy Pelosi has weighed in by recommending passage of a law forbidding a President from pardoning or commuting a sentence if the conviction was for illegal behavior to protect the President–which Stone’s quite obviously was.

Perhaps the most succinct summary of the situation came from Mitt Romney–who seems to be the only Republican in the Senate with either scruples or a backbone. Romney tweeted

Unprecedented, historic corruption: an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.

There is broad recognition that another four years for this grotesque buffoon would be the end of America’s experiment with democratic self-government. Inconceivable as it seems, however, he continues to have the devotion of his base/cult. They won’t desert him and they will turn out for him.

If we want to save America in November, we’d better get massive turnout of people who come prepared to “vote blue no matter who.”

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.