Law Enforcement, Race and the Gun Culture – Part VIII

This is the ninth part in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here, Part IV is here, Part V is here, Part VI is here and Part VII is here.

In Part VII, I focused on the excessive prison population, resulting from ever-longer sentences, the huge number of people, particularly of color, caught up in the drug wars, and both the human and financial costs resulting therefrom.

In earlier posts, I spent a great deal of my focus, on the denial of the right to trial by jury, a proper defense and the criminal behavior of many prosecuting offices in withholding exculpatory evidence. I spent relatively little time on the Supreme Court as a major miscreant in denying the accused a fair trial and in allowing proper remedies against the abuse of the criminal justice system.

I did mention the Supreme Court decision in CONNICK, DISTRICT ATTORNEY, ET AL. v. THOMPSON where the innocent defendant was convicted of murder and spent 14 years on death row as a result of the DA’s office withholding a crime lab report that exonerated him. A jury awarded one million dollars to the defendant (I million for each year served) but SCOTUS by the usual 5-4 vote decided that the 14 years wrongfully incarcerated entitled the victim to zilch. -0- Nothing.

And that is where the problem begins but doesn't end. There is good reason why the founders wrote in the 5^th amendment:

…nor shall be compelled in any criminal case to be a witness against himself...

so as to prevent coerced confessions. But the amendment has been distorted to keep miscreants (particularly white collar affluent ones) from having to answer questions in court or even before investigative bodies. To be sure the danger of being held in contempt is, in a sense, a means to force an accused into answering questions under threat of contempt of court. But is that what the founders had in mind? Or did they try to prevent the use of the 3^rd degree, whether physical or mental, to extract confessions. I suggest the latter. But it is the latter that is so frequently used to extract confessions, and it is the latter that the courts have allowed, even though it has been shown again and again that such confessions are unreliable.

Thus the Innocence Project has found:

...in about 30% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.

These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences.

Since DNA evidence is more often than not available to prove the innocence of the convicted, it may be assumed that the number of innocent in our jails or on death row is much higher than 30%.

It is for that reason that the SCOTUS instituted the Miranda rule, which I suggest is entirely inadequate to prevent the large number of cases that result in convictions of the innocent from false confessions.

Thus what prompted me to address this issue came through a rather circuitous route. I refer the reader to my blog posts of October and November of 2013 entitled "The Supreme Court vs. the Constitution," "The Supreme Court vs. the Constitution (Discussion),"

and "The Supreme Court vs. the Constitution(Addendum)," where I reproduced a discussion of a book by that name by one Gerald Walpin, which resulted from my negative review of Walpin’s book, his response, and my reply, all of which can be found on the Amazon website (See here).

Fourteen months later, out of curiosity, I returned to the Amazon website to see what other reviews had been posted and found one written under the pseudonym RUTHEE, which among other things attacked the Supreme Court, not for the Gore decision, or the United decision, or the many other recent decisions of the court that ignored precedent and made decisions for blatantly political reasons, but for instituting the Miranda rule in 1966. See Miranda v. Arizona.

Allow me to share RUTHEE’s review with you here, and I will share my response, as it appears on the Amazon website, in my next post.

Both liberals and conservatives promote their ideologies by evoking America's most important document. (sic) the Constitution, but very few have read it, understand its intent and its impact on American civil life.

Gerald Walpin comes to the rescue with this indispensable book. In “The Supreme Court vs. The Constitution,” in elegant prose coupled with meticulous research, he demonstrates how justices have based critical decisions on politics and a desire to implement a particular agenda. In his own words: “You don’t have to be a lawyer to understand how Supreme court Justices have substituted their own elitist vision for constitutional guarantees that protect the average American’s security and values.”

One particular egregious example is the passage of the Miranda law. How many times have we seen a movie or a column on a criminal being told his “Miranda rights?” Have you wondered why violent criminals have these rights which exclude confessions from admissible evidence?

Gerald Walpin reminds us “…the primary function of government…is to render security to its subjects. And any mischief menacing that security demands a remedy commensurate with the evil.”

Until the Miranda Law, the Supreme Court held that a confession obtained while the defendant was in custody was admissible, without any specific required procedures, as long as evidence showed that it was freely given and not induced by fear or threats.

Nonetheless, in 1966 five justices, outvoted four colleagues, and in Miranda v. Arizona Supreme Court, ruled that persons in custody must, prior to interrogation, be clearly informed they have the right to remain silent, and that anything the person says will be used against that person in court. Failure to adhere to this will result in dismissal of the case even against hardened and dangerous criminals.

Gerald Walpin demonstrates how the law and its practice violates the intent of the Constitution and quotes Justice Sandra Day O'Connor, dissenting almost two decades later in 1985: “The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced’ and ”when the admission is not coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievable lost to the fact finder.”

This is one of the many gems in this book. There are many, many more.

Mr. Walpin has written many excellent columns on the debates in our judicial system- on Race and the Law and the Supreme Court, the misuse of the 14th Amendment to foster illegal immigration, New York's "stop and frisk" decision, NSA surveillance, to name a few.

The Supreme Court vs,(sic) The Constitution makes the debate about original intent and practice intelligible for non lawyers. It is highly recommended.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Law Enforcement, Race and the Gun Culture – Part VII

This is the eighth post in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here, Part IV is here, Part V is here and Part VI is here.

In the third part of this series I wrote:

I will come back to this in another context, but for now allow me to express my disappointment that our President, in his sixth State of the Union address did not speak about this subject. It is one of the few areas where he might be able to find common ground with Republicans.

I urge the reader to return to Part III and read the relevant portion.

I cannot resist noting that in raising this issue, I did so well before the New York Times picked it up. But since they finally did, allow me to refer my readers to the Times article entitled “Unlikely Cause Unites the Left and the Right: Justice Reform” and their editorial entitled “A Judge’s Idea for Grand Jury Reform.”

Even the American Legislative Exchange Council (ALEC) which has been the frequent target of liberal ire has joined in calling for reform.

I quote from their website: 

The United States currently incarcerates 1 in nearly 100 American adults. America’s incarceration addiction grew during the late 1980s and early 1990s as state and local governments passed “tough-on-crime” legislation. For example, California’s “three strikes” law called for mandatory sentencing of repeat offenders, and New York adopted the “Broken Windows” strategy that called for the arrest and prosecution of all crimes large and small.

I do need to interject at this point that the “Broken Windows” strategy, which is a cornerstone of the NYC policing strategy of Police Commissioner William Bratton, is one that I support, even though that was a factor in the untimely death of Eric Garner, but a minor violation should not bring about an arrest. A citation, like a traffic ticket, is the proper approach, and certainly, even in the absence of proper identification, the violence by the police can never be justified, particularly in dealing with what should be no more than a misdemeanor.

ALEC sets forth as its solution:

Research and practice over the past two decades by stakeholders across various jurisdictions shows that there are better ways to protect our communities than mass incarceration. States still need to be tough on crime, but in ways that emphasize personal responsibility, promote rehabilitation and treatment, and allow for the provision of victim restitution where applicable. Community supervision programs and strategies that serve as alternatives to incarceration can effectively hold offenders accountable while providing them with an opportunity to get back on their feet. These policies are proven to reduce the rate at which offenders return behind bars, in turn cutting the crime rate, protecting our communities, and achieving the best public safety return per taxpayer dollar.

ALEC members have approved model policies that help maintain public safety and reduce criminal justice spending:

▪                Recidivism Reduction Act

▪                Swift and Certain Sanctions Act

▪                Community Corrections Performance Incentive Act

▪                Community Corrections Performance Measurement Act

▪                Earned Compliance Credit Act

▪                Justice Safety Valve

We tend to assume that overcrowding and abuse of inmates in our prisons is likely to be most prevalent in jurisdictions that are illiberal. But, regretfully that is not the case.

The Bloomberg Administration managed to get a consistently favorable press. But now that it has been replaced, its atrocities are coming to light. The New York Times reports that at Riker’s Island under the Bloomberg Administration:

...brutality spiked … An influx of inmates with mental illnesses, a breakdown in discipline and a lack of interest by top officials in the Bloomberg administration all culminated in the crisis facing Rikers today. The rise in brutality by guards has been particularly stark. During Mr. Bloomberg’s last term in office, use of force by officers against inmates jumped by 90 percent.

ALEC reports that:

California’s prison population is one of the largest in the country.

leading to:

...a three-judge court rul(ing) that California must reduce its prison population by approximately 40,000 in two years

and at a cost of $9.3 billion and a cost per inmate: of $45,006

According to the Huffington Post: 

Since 1980, higher education spending has decreased by 13 percent in inflation adjusted dollars, whereas spending on California's prisons and associated correctional programs has skyrocketed by 436 percent. The state now shells out more money from its general fund for the prison system than the higher education system... 

Fifty-five percent of the growth of corrections spending is the result of the state simply putting more people in jail. Over the past three decades, the number of inmates in California facilities has increased eight times faster than the size of the overall population. 

The report notes that, while the average salaries for employees of the state's world-renowned higher education system have stagnated or even dropped with regard to inflation, prison guards have seen sustained salary increases. Correctional officers in California typically make somewhere between 50 and 90 percent more than comparable jobs in the rest of the country.

In Colorado:

Twelve of Colorado’s 21 facilities had inmate population above design capacity in 2011.

In Massachusetts:

The total custody overcrowding rate for DOC facilities as of June 25, 2012 was 146%. The overcrowding rate for medium security facilities was 155%.  

In my home state of New Jersey the Dept. of Corrections has an:

Annual budget: $1,000,000,000. 

Average annual cost per inmate: $34,600

And this is while our bridges are falling down and our roads are crumbling.

But the human costs are even greater, not only for the incarcerated but for their families and particularly their children. According to the Urban Institute: 

More than half of the 1.4 million adults incarcerated in state and federal prisons are parents of minor children. The vast majority of incarcerated parents are male (93%) and are held in state prisons (89%). Among the men held in state prison, 55 percent report having minor children. Among the women, who account for 6 percent of the state prison population, 65 percent report having minor children. Over half (58%) of the minor children of incarcerated parents are less than 10 years old.

Great distances typically separate children from their incarcerated parents. Women are housed in prisons an average of 160 miles from their children, while men are an average distance of 100 miles away. These distances serve as a barrier to prison visits by family members. More than half of incarcerated parents report never receiving a personal visit from their children  Contact in the form of phone calls and letters often proves problematic as well. The number of calls or letters per prisoner is typically limited by corrections policy. The high cost of collect phone calls, reflecting surcharges imposed by telephone companies or the departments themselves, can make this form of contact quite expensive. Despite these barriers, nearly 60 percent of mothers and
 40 percent of fathers report having weekly contact with their children while incarcerated. 

See here. 

For which credit goes to the inmates and their families, not to our policies.

As pointed out above, keeping in touch by phone is made almost impossible. The New York Times reports: 

For most people, talking on the phone is cheap. But for many families with a loved one behind bars, astronomical phone bills mean they have to choose between covering their living expenses and staying in touch.

The problem is that prisons and jails give companies like the industry leader, Global Tel Link, monopoly contracts in exchange for a share of the proceeds...

Global Tel Link, for example, charges $9.50 to make a $50 deposit, and $5 to issue a refund when someone is released from prison or jail. It’s hard to understand why Global Tel Link’s fees are so high, given that the company has 57 percent of the state prison market and its smaller competitors charge far lower fees.

The good news is that the Federal Communications Commission has new rules that will cap the cost of interstate calls at 21 to 25 cents a minute starting on Feb. 11. The F.C.C. also proposed to limit the account fees, but a federal court suspended that proposal after the phone companies sued.

So we can see that there is money to be made from the families of those incarcerated. Of course they want more in prisons.

But even beyond that we have had a trend toward privatizing prisons. The ACLU reports: 

Private prison companies, however, essentially admit that their business model depends on locking up more and more people... ” As incarceration rates skyrocket, the private prison industry expands at exponential rates, holding ever more people in its prisons and jails, and generating massive profits. 

And while supporters of private prisons tout the idea that governments can save money through privatization, the evidence that private prisons save taxpayer money is mixed at best – in fact, private prisons may in some instances cost more than governmental ones. Private prisons have also been linked to numerous cases of violence and atrocious conditions. 

Isn't it time we did something about it? And what better time than when the Right is for reform.

Why are we not seeing action at least on this front?

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Law Enforcement, Race and the Gun Culture – VI

This is the seventh in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here, Part IV is here and Part V is here.

I have not had the time to prepare continuation of this series since I published Part V on February 9^th.

Rather then allow this series to remain fallow I thought I would share with you some articles on the subject that I have come across. I reproduce them without comment.

From Amnesty International:

In the early morning of November 2, 1983, Darrell Cannon was taken from his home by a battery of now notorious white Chicago police detectives to a remote area on the far southside of Chicago where he was interrogated about the murder of a drug dealer… When Cannon persisted in denials, the detectives forced him into the back seat of their car, pulled down his pants, and repeatedly shocked him on his genitals with an electric cattle prod.

 The physical and mental scars that the victims like Darrell Cannon carry will never be healed, but with this reparations ordinance, at least they will finally begin the path to closure. Instead, Chicago Mayor Rahm Emanuel and several other Chicago Alderpeople will not support the reparations efforts.

Again from Amnesty International: 

Between 1972 and 1991, Chicago police under the direction of former Commander Jon Burge systematically tortured more than 100 people of color on Chicago’s South Side. During Burge’s reign of terror, over 110 African American and Latino men and women were subjected to electrical shocks on their genitalia or other body parts with a handmade shock box or cattle prod, suffocation with plastic bags, beatings with rubber objects or telephone books, and mock executions. The vast majority of the torture survivors were also subjected to verbal abuse where they were repeatedly called racist slurs and epithets throughout their interrogations.

 These heinous acts of torture were committed in order to extract confessions; confessions that were used to wrongfully convict scores of people. Eleven survivors of Chicago police torture were sent to Illinois’ infamous death row. This history of brutality is why Chicago has been dubbed by some as the Abu-Ghraib of the Midwest.

 Today, many of Burge’s torture survivors and their families continue to suffer from the psychological effects of the torture they endured. They have never received adequate compensation or assistance. Because of the statute of limitations, survivors have no legal recourse to obtain any redress, whatsoever. Moreover, there are approximately 19 survivors of torture under Jon Burge who continue to languish behind bars. They have never received evidentiary hearings to present evidence that substantiates their claims that they were tortured into confessing.

From the ACLU Civil Liberties Reporter: 

When I was 14, my grandfather sat me down for “the talk” – not the birds and the bees, but “the billy clubs and the bullets.” I brushed him off. I thought that in my majority-black hometown of Newark, racism would not reach me. Little did I realize that a healthy fear of the police would become a survival skill for a young black man.

My wake-up call came at 16.

As I noticed former friends slipping into the traps of my South Ward neighborhood, I was determined to be different. I joined debate club and the law academy, and played on the baseball team at University High School, and I never had run-ins with the police. 

But walking home one evening down Hawthorne Avenue my junior year, I spotted a Crown Victoria with tinted windows creeping up behind me. Unsettled, I sped up, hoping to reach the safety of my house. Instead, my quickened pace prompted the car to cut in front of me. Two Newark Police Department officers emerged. One was black. The other was not. He had his gun drawn.

“Get on the wall,” one yelled.

Terrified, with my arms up against the metal grate of Bragman’s deli, I asked, “What have I done, sir?”

“Where are you coming from?” an officer growled.

“Baseball practice,” I answered as an officer looked through my book bag.

One officer chastised me for presenting a school ID instead of an “authentic” one, which I didn’t have at 16. Finally, the cops told me to take a seat on the curb while they ran a check on my ID. For what seemed like an eternity, drivers passed and stared until the police finally let me go. Those slow moments were some of the most embarrassing, humiliating, and terrifying of my life.

Even with my grandparents’ lessons in the unwritten rules of conduct awaiting me because of my inherited blackness, I was shocked to be subjected to unprovoked harassment by minority police officers. I now felt unsafe in my neighborhood, and not because of the killings, carjackings and crime festering in my part of Newark. I felt scared because, for the first time in my life, I knew police abuse could happen to me and I realized that I was lucky my encounter with police only robbed me of my dignity.

It’s one thing to be scared of criminals. It’s another thing entirely to be scared of the people who are supposed to protect you. My appearance branded me a menace, even though I hadn’t done anything illegal. After being treated like a second-class citizen by the police, you start to believe you are one.

While I didn’t have strong feelings about the police before I was wrongly stopped and frisked, being abused the way I was made me want to avoid any contact with cops. Why would a Newarker who suspects illegal activity go to the police when he lives in fear of those same officers every day? A community that doesn’t trust the police is one where criminals can run amok, safe in knowing that the citizenry and police are at odds.

Abusive stop-and-frisk policies have no place in a democracy. As a kid, I faithfully believed that routine racial profiling would not happen to me the way it had to my grandfather. Now, seeing “the talk” through the lens of personal experience, I know better. I hope that one day, if I tell my own grandchildren about the dangers of interacting with police, they will be able to brush off my warnings because police abuse will have truly become a thing of the past.
My story is not an anomaly. The more of us who come forward to share what we’ve been through, the closer we’ll get to having a powerful voice in shaping the Newark Police into a department that respects everyone’s human rights, no matter what they look like.

Michael Hobbs is a lifelong Newarker who works at the Brick City Development Corporation. He shared his story at the launch of Newark Communities for Accountable Policing (N-CAP) on Sept. 25, 2014.

I share these stories with you without comment at this time.

When I find the time I will continue with the analysis of the American Justice System. I regret to say that the more research I do, the more disturbed I get. Please keep reading, and if you can find the time let me have your comments.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Law Enforcement, Race and the Gun Culture – V

This post is the sixth in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here and Part IV is here.

In my post entitled "Law Enforcement, Race and the Gun Culture – Discussion" I posted comments from two of my readers and my responses, but in looking back I see that I failed to quote one comment that I should not have overlooked, because it was very complimentary.

That comment came from Albert Nekimken of Vienna, Virginia and it read:

These are very hard-hitting, well-written blog posts. The malfunctioning of the grand jury system disturbs me the most.

Nekimken made this comment after my second post. He could not know that there are even worse things in our criminal justice system, than the failure of the “grand jury system.”

In my last post I discussed how prosecutors, instead of seeking justice as they are supposed to do, seek convictions regardless of guilt, and treat each conviction as though it were “another notch in their gunbelt." I pointed out that many innocent people are convicted, even though the prosecuting attorney has evidence in his possession highly probative of innocence, if not absolute proof thereof.

The stories of innocent people facing the nightmare of conviction and incarceration should chill the blood. The average reader will say ‘that couldn’t happen to me’. But it could! The numbers are astounding. But since numbers never seem to reach the conscience adequately, (they are cold statistics) I urge the reader to acquire and view the CNN documentary: “An Unreal Dream – The Michael Morton Story”. For information on that documentary, see here. This was a dramatic story, but it is not so different from so many others. I quote from CBS News: 

Morton's nightmare began in 1986, when his wife Christine was bludgeoned to death in their home in Austin, Texas. Despite no direct evidence linking him to the crime, he quickly became the prime suspect. At his trial, Williamson County District attorney Ken Anderson painted a picture of him as a violent, sexually depraved murderer who showed no remorse for his crime…

They literally pulled my son out of my arms, 'cause he was screaming for me. And, you know, the little hand is out. And ... he's being pulled away. And that was one of the worst parts…

For a short video on the case click here.

Unfortunately, the Supreme Court in the usual 5-4 decisions, actually reversed a decision granting another innocent man, who had served 14 years in prison an award of $14 million, $1 million for each year served. The Supreme Court held that he is entitled to - NOTHING.

But the injustices of our criminal justice system don’t stop there. In theory, one is innocent until proven guilty. But in practice that is hardly true. Pleading not guilty can be dangerous. There is an enormous penalty for insisting on a fair trial.

It is known as plea-bargaining and it is the method that prosecuting attorneys use to extort guilty pleas.

In a research paper on the subject entitled: “Plea and Charge Bargaining” the author finds:

In plea bargaining, a defendant is faced with a charge at arraignment. Typically this is the maximum charge or punishment that the defendant will be held to if he or she goes to trial. The prosecutors will present the defendant with an opportunity to plead guilty to a lesser charge or to the original charge with less than the maximum sentence.

What this means in practice is that defendants who plead guilty to the lesser charge, will get a lighter sentence, but if they chose to go to trial and are convicted, they will face the full penalty of “the maximum charge or punishment”.

This is a difficult choice to make. Going to trial is always a throw of the dice. It is impossible to predict with any kind of certainty, or even probability, what the outcome of a trial will be. It is “a throw of the dice”.

This is particularly true for the indigent or poor defendant who does not have access to highly competent counsel. It is even truer for those who cannot raise bail, and are incarcerated pending trial or other disposition. They might end up spending a year in jail pending trial, while if the charged offense is not that serious, a guilty plea might get them free in less time. The pressure to get out of jail, and/or to avoid the risk of long jail time is too great to make going to trial a plausible alternative.

Not surprisingly, the research paper cited above estimates that “about 90 to 95 percent of both federal and state court cases are resolved through this process” and that is confirmed by the website of a DA’s office in Texas where it is stated: "At least 90-plus percent of all criminal cases are disposed of by plea bargain agreements."

Not surprisingly the paper finds: “The majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas.”

The paper makes no attempt to explain this discrepancy, but I would suggest while in some cases racial prejudice may be a factor. More likely it is a question of economic status. It is logical to assume that those who have no difficulty raising bail and of hiring the best defense counsel are in a better bargaining position than the poor defendant, who the DA knows cannot put up a good defense at trial, and therefore there is less need to offer inducements for a guilty plea. As is well documented, Blacks are generally in a lower economic status than whites.

But where the injustice becomes even clearer is where accomplices get disparate sentences where one of them “cops a deal”, sometimes “called accomplice testimony. It's when a person involved in a crime agrees to testify against the other participants in exchange for a reduced plea.” See here. 

In effect this means that if one of the people charged agrees to give testimony in accordance with the prosecutors wishes, he gets a lighter sentence, which is quite an inducement to give such testimony, whether true or not. The DA gets his conviction, and one who may be guilty gets off with a light sentence, or even with probation.

It should be obvious that such testimony is highly dubious, and accordingly “New York law says that testimony of an accomplice, standing alone, is insufficient proof against the defendant.  There must be some form of corroboration that connects the defendant to the crime on top of the co-defendant testimony.” See here. But this is not true in other jurisdictions. Under “federal law… accomplice testimony is enough," (Ibid) and it varies from state to state.

According to the Cornell Law Review, Vol72:800 @p.802 (The link for this doesn’t work – For those who might want to go to the source, Google Cornell Law Review, Vol. 72:800 and then chose: "Accomplice Testimony Under Contingent Plea Agreements")

Accomplice plea agreements tend to produce unreliable testimony because they create an incentive for the accomplice to shift blame to the defendant or other co-conspirators. Further, an accomplice may wish to please the prosecutor to ensure lenient prosecution in his own case. Nevertheless, courts held that the testimony of accomplices who receive lenient treatment is not per se unreliable. Federal courts have allowed convictions based on uncorroborated testimony of accomplices to stand where the testimony is not “incredible or unsubstantiated on its face.” Convictions have been sustained even when the accomplice is an admitted perjurer.

How much this stacks the deck against the accused can bee seen from the fact that if counsel for the defense where to offer an inducement to a witness to testify on the defendants behalf, not nearly as beneficial as a lower sentence, or even probation, the attorney could be disbarred and prosecuted for subornation of perjury.

The deck is stacked against the accused in every way, and if the accused is indigent or poor, the likelihood of his being able to put up a proper defense, (with all the required investigations and the expenses involved therein) are dim indeed.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Law Enforcement, Race and the Gun Culture – IV

This is the fifth in this series if you count the Discussion post. I recommend that you read or re-read Part I here, Part II here, Part III here and the discussion here. 

While killings by police have been prominent in the news lately, it is but the tip of the iceberg. Brutality, and even simply disrespect, are equally unacceptable, and under the last mayor, Michael Bloomberg, and his police commissioner, Raymond Kelly, respect for the law hit a low ebb.

This took many forms. The Civilian Review Board, set up as a body independent of the police to take complaints about the police, investigate them and then send them to the Commissioner, was frequently ignored.

According to the New York City ACLU:

Of the cases referred to an administrative trial during this period, consistent with the CCRB’s recommendation, 64 percent resulted in no disciplinary action. (Emphasis added)

But I think that what has happened is that there has been far too much emphasis on police officers as being the main problem.

Law enforcement policy is made at the top and the outrageous policy of "Stop and Frisk" in NYC came right from the top, the mayor and the police commissioner. It was denounced for its racial profiling, but that was not all that was wrong with it. It was an outrageous violation of our Constitutional protections, and had it not targeted men of color, I suspect it would have been challenged much sooner and much more vigorously.

Amendment IV of the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I cannot think of a more egregious violation of that portion of the Bill of Rights then for a person to be stopped on the street without cause, entirely at random, and to be forced to submit to a body search.

This was not done by rogue police officers, but on the orders of the mayor, Michael Bloomberg, and his police commissioner, Raymond Kelly.

But the media, and even civil rights and civil liberties groups, have spent far too much time on the misconduct of the police. There are far more egregious parts of our Law enforcement apparatus.

Among these are the offices of the District Attorneys. As I set forth in my post "Law Enforcement, Race and the Gun Culture – II," When a DA wants an indictment he gets one, but DAs, who by the nature of their work need the cooperation of the police, rarely want to indict a police officer, and so we see the charade of a presentation to a Grand Jury, which in accordance with the DAs wishes, fails to indict. The Abner Louima case was an exception, but that was so egregious that it could not be ignored, but nevertheless was to the credit of the Brooklyn DA, whose office handled it, and the prosecuting attorney, Loretta Lynch, who represented the people in court, and who has now been nominated for Attorney General of the US.

But it may be that this case was so egregious that it could not be ignored.

But District Attorney offices are a very large part of what is wrong with our Criminal Justice System, not just for their failure to prosecute police officers who commit crimes, but worse their putting the winning of convictions, over seeking justice. Thus under our system of law, a defense attorney only has the responsibility to present his clients case, while the DA’s office is charged with seeking justice.

Unfortunately, this is rarely the case, with DAs seeking convictions, rather than justice, and failing to turn over exculpatory evidence to the defense, as they are required to do by law. It is but the tip of the iceberg that is revealed in cases where convictions have been overturned, e.g. for every case overturned there are many false convictions that are not. I  quote from the Innocence Project: 

In 1985, John Thompson, a 22-year-old father of two, was wrongfully convicted of murder and sent to death row at Angola State Penitentiary in Louisiana. While facing his seventh execution date, a private investigator hired by his appellate attorneys discovered scientific evidence of Thompson’s innocence that had been concealed for 15 years by the New Orleans Parish District Attorney’s Office.

 Thompson was released and exonerated in 2003 after 18 years in prison, 14 of them isolated on death row. The state of Louisiana gave him $10 and a bus ticket upon his release. He sued the District Attorney’s Office. A jury awarded him $14 million, one for each year on death row. When Louisiana appealed, the case went to the U.S. Supreme Court. This spring, Justice Clarence Thomas issued the majority 5-4 decision in Connick v. Thompson that the prosecutor’s office could not be held liable.

The requirement that prosecutors must turn over exculpatory evidence to the defense was settled by the Supreme Court in 1963 (Brady v. Maryland, 373 U.S. 83), which held that:

… prosecutors (must) disclose materially exculpatory evidence in the government's possession to the defense. "Brady material" or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused-- evidence that goes towards negating a defendant's guilt, that would reduce a defendant's potential sentence, or evidence going to the credibility of a witness.

 If the prosecution does not disclose material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be suppressed. The evidence will be suppressed regardless of whether the prosecutor knew the evidence was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence from the defense.

But this requirement is observed more in the breach than in its observance. The Innocence Project has found and I quote: 

Such violations have led to an incalculable number of wrongful convictions. Because of the often covert nature of prosecutorial misconduct, it is impossible to estimate how many innocent people have been affected. Furthermore, the vast majority of felony cases are resolved through plea bargaining and never go to trial. Prosecutors may have engaged in misconduct in those cases as well.

 In at least 63 of the wrongful convictions later overturned through DNA testing, innocent defendants alleged prosecutorial misconduct in their appeals or civil trials. Examples of misconduct include eliciting perjured testimony; destroying, concealing or fabricating evidence; making improper and inflammatory statements and more.

 Recent studies of these and other cases have shown that prosecutors are rarely found at fault, and even when they are, they are very rarely disciplined for it. A USA Today investigation found that only one federal prosecutor has been disbarred, even temporarily, for misconduct in the past 12 years despite 201 documented cases of violated laws or ethics rules. The federal prosecutor in that one case was suspended from practicing law for just one year. A study conducted by the Northern California Innocence Project supports these findings. In that study, over 700 California prosecutors engaged in misconduct from 1997 to 2009 and only seven of them were disciplined.

With no penalties for deliberately seeking wrongful convictions is it any wonder that prosecuting attorneys build careers around getting as many convictions as possible, without regard to guilt or innocence.

Most of the cases where exonerations have been obtained have been through DNA evidence. How many innocent people may be incarcerated, though innocent, where DNA evidence cannot prove their innocence, is impossible to tell.

According to the Innocence Project: 

There have been 325 post-conviction DNA exonerations in United States history. These stories are becoming more familiar as more innocent people gain their freedom through post conviction testing. They are not proof, however, that our system is righting itself.

 The common themes that run through these cases — from global problems like poverty and racial issues to criminal justice issues like eyewitness misidentification, invalid or improper forensic science, overzealous police and prosecutors and inept defense counsel — cannot be ignored and continue to plague our criminal justice system.

 •     Twenty people had been sentenced to death before DNA proved their innocence and led to their release.
•     The average sentence served by DNA exonerees has been 13.6 years.
•     About 70 percent of those exonerated by DNA testing are people of color.
•     In almost 50 percent of DNA exoneration cases, the actual perpetrator has been identified by DNA testing.
•    Exonerations have been won in 38 states and Washington, D.C.

For those who still think that justice is colorblind I call attention to the fact that with “people of color make up about 30 percent of the United States’ population, they account for 60 percent of those imprisoned” and 70% of those wrongfully convicted. (See above)

But what makes it even worse is that Parole Boards expect prisoners to express remorse for their crimes, which is rather difficult for the innocent to do. This dilemma is dramatically illustrated in an Iowa Law Review article at pages 524 & 527, where the prisoner, being innocent, could not express remorse for something he did not do, but as the case unfolded, and again I quote:

Goodman had always maintained his innocence and continued to do so in the aftermath of his conviction. Still, more than a decade later, when appearing before the Utah State Board of Pardons and Parole in 2000, Goodman “admitted his culpability for the murder in order to curry favor with parole officials.

But much later:

… in discussing the case … in the weeks following the disclosure of the DNA test, lawyers from the Utah State Attorney General’s Office noted Goodman’s admission of guilt at his 2000 parole hearing as one reason for their hesitancy to declare his innocence.

Thus the convicted innocent found himself damned if he did, and damned if he didn’t, a common occurrence in our crazy quilt system of “justice”.

How Kafkaesque such situations are! But we take pride in our pretense of evenhanded justice.

We have long claimed to believe that:

"It is better that ten guilty persons escape than that one innocent suffer", and this is enshrined by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s, which we claim to adhere to.

But as I have set forth above, in practice it is far from true. In future posts I will illustrate just how we have come to practice the opposite.

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