San Bernardino County hosts the military's most cherished clubhouse, Ft. Irwin, and several other bases, active and closed. The county population is rich in military denizens, their derelicts, offspring, misfits and buffs. With the consequent prevalence of the classic sociopathy found in these people, predation, exploitation, corruption and virtual tyranny have spread throughout our courts, law enforcement and government. Discuss the disgraceful prison and military industrial complexes here.
Posted on: January 21, 2009 9:30 AM, by Ed Brayton
Here's a very interesting case from Florida, where an appeals court has upheld a lower court ruling that threw out evidence from a breathalyzer test in a drunk driving case because the manufacturer of the device refused to release the source code and allow defense experts to analyze the accuracy of the machines.
The results of breath tests in more than 100 local drunken-driving cases will not be allowed at trial, a judge announced Tuesday.
The validity of those breathalyzer tests has been challenged for more than three years because of the Intoxilyzer 5000, a machine that uses a breath sample to measure a person's blood-alcohol content.
Manatee County Judge Doug Henderson ruled two years ago that any Intoxilyzer 5000 tests were inadmissible in trial, but prosecutors appealed. On Tuesday, Henderson told lawyers that his ruling had been affirmed by the Second District Court of Appeal and Circuit Court.
Breath analysis machines are notoriously inaccurate and this has been a problem for a very long time. Dr. David Hanson, a sociologist who has written on this issue for decades, writes:
Breath analyzers (Breathalyzer, Intoxilyzer, Alcosensor, Alcoscan and BAC Datamaster are common brand names) don't actually test blood alcohol concentration (BAC), which requires the analysis of a blood sample. Instead, they estimate BAC indirectly. Different types of machine use different techniqes and larger machines generally yield better estimates than do hand-held models. Therefore, some states don't permit data or "readings" from hand-held machines to be presented as evidence in court. South Dakota does not even permit evidence from any type or size breath tester but relies entirely on blood tests to ensure accuracy and protect the innocent.
A major problem with some machines is that they not only identify the ethyl alcohol (or ethanol) found in alcohol beverages, but also other substances similar in molecular structure. Those machines identify any compound containing the methyl group structure. Over one hundred compounds can be found in the human breath at any one time and 70 to 80 percent of them contain methyl group structure and will be incorrectly detected as ethyl alcohol. Important is the fact that the more different ethyl group substances the machine detects, the higher will be the false BAC estimate.
The National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics can have acetone levels hundreds and even thousand of times higher than that in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines.
One investigator has reported that alcohol-free subjects can generate BAC readings of about .05 after eating various types of bread products.
Substances in the environment can also lead to false BAC readings. For example, an alcohol-free subject was asked to apply a pint of contact cement to a piece of plywood and then to apply a gallon of oil-base paint to a wall. The total activity lasted about an hour. Twenty minutes later the subject was tested on an Intoxilyzer, which registered a BAC of .12 percent. This level is 50% higher than a BAC of .08, which constitutes legal intoxication in many states.
Similarly, a painter with a protective mask spray painted a room for 20 minutes. Although a blood test showed no alcohol, an Intoxilyzer falsely reported his BAC as .075.
Any number of other products found in the environment can cause erroneous BAC results. These include compounds found in lacquers, paint removers, celluloid, gasoline, and cleaning fluids.
Other common things that can cause false BAC levels are alcohol, blood or vomit in the subject's mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture.
Breath testers can be very sensitive to temperature and will give false reasings if not adjusted or recalibrated to account for ambient or surrounding air temperatures. The temperature of the subject is also very important. Each one degree of body temperature above normal will cause a substantial elevation (about 8%) in apparent BAC.
Many breath testing machines asume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. This variation will lead to false BAC readings.
Physical activity and hyperventilation can lower apparent BAC levels. One study found that the BAC readings of subjects decreased 11 to 14% after running up one flight of stairs and 22-25% after doing so twice. Another study found a 15% decrease in BAC readings after vigorous exercise or hyperventilaion.
Some breath analysis machinnes assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading.
It's about time a judge took a stand on this issue.
The Kentucky Court of Appeals today granted petitions by the Interactive Gaming Council (IGC) Interactive Media Entertainment and Gaming Association, Inc. (iMEGA) to overturn an earlier trial court ruling authorizing the seizure of domain names owned by operators of overseas gambling websites. While challenged on several additional fronts -- including on a wide range of Constitutional grounds by EFF and its fellow amici the ACLU of Kentucky and the Center for Democracy and Technology (CDT) -- the Court overturned the prior ruling based on an interpretation of Kentucky's "gambling device" forfeiture statute:
[I]t stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute a "machine or any mechanical or other device ... designed and manufactured primarily for use in connection with gambling."
The Court of Appeals suggests that the Kentucky legislature might be able to amend the statute (KRS 528.010) to cover domain names, but even if it did, the Commonwealth would likely still be out of luck. In addition to this type of domain name seizure still raising serious First Amendment, due process, and other constitutional problems, Kentucky courts (as pointed out in our joint amicus brief) also lack the authority to directly order out-of-state registrars to turn over customer domain names.
Update: The Commonwealth of Kentucky filed a notice of appeal with the Kentucky Supreme Court on January 21, 2009.
In a follow up to a 2005 story where Florida judge Doug Henderson ruled that breathalyzer evidence in more than 100 drunk driving cases would be inadmissible as evidence at trial, the Second District Court of Appeal and Circuit Court has ruled on Tuesday to uphold the 2005 ruling requiring the manufacturer of the Intoxilyzer 5000, Kentucky-based CMI Inc, to release source code for their breathalyzer equipment to be examined by witnesses for the defense of those standing trial with breathalyzer test result being used as evidence against them. '"The defendant's right to a fair trial outweighed the manufacturer's claim of a trade secret," Henderson said Tuesday. In response to the ruling defense attorney, Mark Lipinski, who represents seven defendants challenging the source codes, said the state likely will be forced to reduce charges — or drop the cases entirely.' ... What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret. It means the state has to give full disclosure concerning important and critical aspects of the case.
WASHINGTON -- The Supreme Court ruled Wednesday that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant.
The 5-to-4 decision revealed competing conceptions of the exclusionary rule, which requires the suppression of some evidence obtained through police misconduct, and suggested that the court's commitment to the rule was fragile.
Chief Justice John G. Roberts Jr., writing for the majority, said that the exclusion of evidence should be a last resort and that judges should use a sliding scale in deciding whether particular misconduct by the police warranted suppressing the evidence they had found.
"To trigger the exclusionary rule," Chief Justice Roberts wrote, "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."
That price, the chief justice wrote, "is, of course, letting guilty and possibly dangerous defendants go free."
Justice Ruth Bader Ginsburg, writing for the dissenters, argued for "a more majestic conception" of the exclusionary rule, and a more categorical one.
The rule requires more than a cost-benefit calculus to deter police misconduct, Justice Ginsburg wrote. It also protects defendants' rights, she said, and prevents judicial complicity in "official lawlessness."
The case began when methamphetamines and a gun were found after Bennie D. Herring, an Alabama man, was arrested based on police officers' mistaken belief that he was subject to an outstanding arrest warrant.
That belief was based on incorrect information in the computer files of a neighboring county's police department. The warrant had been withdrawn, but the database had not been updated.
Calling the error "isolated negligence attenuated from the arrest," Chief Justice Roberts said the lower courts had been correct in allowing the jury in Mr. Herring's case to consider the evidence. He was convicted and sentenced to 27 months in prison.
The ruling itself is relatively narrow and is arguably merely a logical extension of a 1995 decision, Arizona v. Evans, which recognized an exception to the exclusionary rule for arrests resulting from erroneous computer records kept by court employees ( as opposed to the police ).
The decision in the case, Herring v. United States, No. 07-513, may have broad consequences, said Craig M. Bradley, a law professor at Indiana University.
"It may well be," Professor Bradley said, "that courts will take this as a green light to ignore police negligence all over the place."
Chief Justice Roberts, who was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., said the exclusionary rule was unlikely to deter isolated careless record keeping and should be reserved for "deliberate, reckless or grossly negligent conduct, or in some circumstances recurring systemic negligence."
"The deterrent effect of suppression must be substantial and outweigh any harm to the justice system," the chief justice wrote. "Marginal deterrence does not 'pay its way.' "
Justice Ginsburg, joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer, wrote that the majority "underestimates the need for a forceful exclusionary rule and the gravity of record keeping violations," particularly given the heavy reliance by law enforcement on the electronic databases that "form the nervous system of contemporary criminal justice operations."
In a separate dissent, Justice Breyer, joined by Justice Souter, called for a "clear line" to be drawn between "police record keeping errors and judicial ones."
That, Justice Breyer said, "is far easier for the courts to administer that the chief justice's case-by-case, multifactored inquiry into the degree of police culpability."
The decision in the Herring case divided along familiar lines. A second case, about the role of the jury in sentencing decisions, was also decided Wednesday by a 5-to-4 vote, but it had a less predictable lineup.
That decision marked either a pause or a stopping point in a judicial march that began with the court's 2000 decision in Apprendi v. New Jersey that the Constitution bars judges from making factual findings leading to increased sentences.
The question in the new case, Oregon v. Ice, No. 07-901, was whether the requirement established in Apprendi applied to the decision whether a defendant convicted of multiple crimes must serve consecutive or concurrent sentences if the harsher punishment required a judge to find facts not determined by the jury.
Justice Ginsburg, joined by Justices Stevens, Kennedy, Breyer and Alito, wrote that the Apprendi rule did not apply to that situation "in light of historical practice and the authority of the states over the administration of their criminal justice systems."
It was undisputed in the case that some state systems that give judges discretion on this point are constitutional, including those in which judges have complete freedom and those in which they are allowed to opt for more lenient concurrent sentences.
The system used in Oregon, however, introduced an additional element in allowing judges to impose harsher sentences. The Oregon law required judges wishing to impose consecutive sentences in some cases to make factual findings about, for instance, the defendant's "willingness to commit more than one criminal offense," before imposing the longer prison terms.
An Oregon judge did so in the case of Thomas E. Ice, who was convicted of sexually assaulting an 11-year-old girl on two occasions. The judge effectively increased Mr. Ice's sentence to 340 months from 90 months.
Justice Antonin Scalia, joined by Chief Justice Roberts and Justices Souter and Thomas, dissented, saying the majority opinion was "a virtual copy of the dissents" and filled with "repeated exhumation of arguments dead and buried" in the Apprendi line of cases.
"I do not understand," Justice Scalia wrote, "why we would make such a strange exception to the treasured right of trial by jury."
As the Texas Legislature begins its session, a Houston judge is again arguing to end jail time for criminals caught with small amounts of cocaine and crack, but this time he has the support of 15 colleagues.
State District Judge Michael McSpadden on Wednesday sent a letter to the state's top officials and Houston's senators and representatives asking for a change in what he called "draconian" laws.
During the last session, McSpadden stood alone when he asked that charges for possession of a controlled substance of less than 1 gram be reduced from a state jail felony to a misdemeanor. Two years later, judges from both major political parties are joining the Republican who has been on the bench for more than 20 years.
"Sixteen of us feel that it's just unfair to be convicted for a residue amount and be labeled a felon, which changes your whole life," McSpadden said. "We're not talking about legalizing it; we're talking about making it a misdemeanor."
Harris County District Attorney Pat Lykos said the problem is multifaceted, and she is studying the best ways to solve the problems associated with drug abuse, including pre-trial diversion and residential treatment centers.
She said she was looking at the "big picture" and noted that Class A misdemeanors could still involve jail time, which wouldn't help jail overcrowding, and that small drug arrests lower other crimes in neighborhoods.
Lykos also pointed out that any drug user contributes money to criminal empires, including drug lords in Mexico and terrorists worldwide.
"Anyone who uses illicit drugs has blood on their hands," she said.
In his letter, McSpadden suggested reducing the charge and mandating drug treatment. He also recommended funding misdemeanor drug courts.
McSpadden said 25 percent to 30 percent of Harris County's 22 criminal district court dockets are felony charges for less than 1 gram of a controlled substance.
The change, McSpadden argues, would lower dockets and create uniform enforcement across the state. He noted that Dallas County police and prosecutors place a lower priority on these offenses, leading to disparate treatment between counties.
McSpadden said his concerns come from fielding complaints about the system from juries and residents.
"The 'War on Drugs' isn't working, and we as judges realize it," McSpadden said. "And the public realizes it."
During the last session, the proposal didn't make it out of committee.
Chairman of the Senate Criminal Justice Committee, Sen. John Whitmire, D-Houston, didn't return calls for comment on the proposal late Wednesday.
Judges who signed on with McSpadden include fellow Republicans Debbie Mantooth Stricklin, Jeannine Barr, Vanessa Velasquez, Denise Collins, Marc Carter, Belinda Hill, Joan Campbell and Jim Wallace.
Democrats supporting the initiative, who were all elected in November, include Ruben Guerrero, Shawna Reagin, Kevin Fine, David Mendoza, Randy Roll, Hazel Jones and Maria Jackson.
With the outlook of a bleak budget looming, Supervisor Neil Derry is calling for San Bernardino County to reconsider and possibly put a stop to the benefits it gives to Superior Court judges.
"This has been a concern, just nothing has been done about it," Derry said. "Now, we've got legal reasons for looking at it as well."
Derry has asked county counsel to review a recent court ruling that found Los Angeles County's payment of benefits to Superior Court judges unconstitutional. Los Angeles County had appealed the case to the state Supreme Court, but the court rejected hearing the case last week.
"There have always been questions about it in the past," Derry said. "Now, it seems cut and dried that we're not allowed to do it."
The benefits paid to Superior Court judges in San Bernardino County total $1.5 million, according to a letter submitted by Derry's office to county counsel. That's the equivalent of paying the salaries of 23 full-time county employees, Derry said.
Under the state Constitution, judges' salaries are set by the Legislature, but some counties, such as Los Angeles and San Bernardino, have given Superior Court judges additional benefits.
Opponents of the recent court of appeals ruling say the benefits packages keep the positions competitive so that judges don't leave their positions to work in the private sector.
"I don't disagree with that statement," Derry said. "But they are state employees, and that's the state's responsibility."
In 2007, a grand jury report urged San Bernardino County to end or significantly reduce the money it was giving to Superior Court judges.
The report noted that the county paid nearly $20,000 in benefits to 83 judges presiding over court cases in the county.
The judges were paid salaries of $171,000 per year by the state, not the county, the report found.
Several years ago, the county enacted a sunset clause phasing out the benefits paid to judges starting Jan. 1, 2008. But the clause reportedly only eliminates the benefits packages given to newly elected judges.
Derry said the county is anticipating a 5 percent to 7 percent loss in overall revenue in 2009 due primarily to declines in sales tax and property tax revenue. Given the tough budget time the county is expecting, the $1.5 million directed toward judges needs to be evaluated, Derry said.
But reconciling the issue may have deeper ramifications.
The letter from Derry's office also asks county counsel to examine whether the county would have an obligation to recover taxpayer money from the state if the benefits were deemed unconstitutional or illegal.
SAN BERNARDINO - Defense attorneys can't question an informant involved in a controversial July drug raid because a judge denied a motion Friday to reveal the source's identity.
Judge Michael Smith, during a brief hearing in San Bernardino County Superior Court, said defense attorneys could argue at a preliminary hearing next week that the informant should be identified.
Friday's hearing in San Bernardino concerned an informant who could substantiate gang allegations against four people accused of being drug dealers, who were arrested after a July traffic stop.
The four are Carl Edward Alexander, 27, Toriano Jerome Houston, 37, and Frederick Edward Williams, 30, all of Highland; and Maurice Lynell Lockett, 27, of Pasadena.
They are charged with possession of cocaine base and marijuana for sale as well as the special allegations that the sales were meant to benefit a criminal street gang.
If proven, the gang allegations could add as much as four years to their sentences.
Their preliminary hearing was scheduled for Tuesday.
The four were arrested July 2 in San Bernardino. Allegations later surfaced that San Bernardino police Sgt. Bradley Lawrence had illegally held Alexander "on ice" without probable cause justifying his arrest.
That allegation was not addressed Friday.
Smith said the judge handling the preliminary hearing could decide whether the informant's identity should be revealed.
Defense attorney Samuel Knudsen, representing Alexander, said conflicting police information makes the informant's cross-examination essential to disproving the gang allegations.
Before the hearing, Deputy District Attorney Jay Hoffman said unmasking informants exposes them to retaliation -- especially in gang cases.
Reach John F. Berry at 951-369-9514 or jberry@PE.com
In October 2004, Julie Amero, a substitute teacher in Norwich, Connecticut, was teaching a seventh grade language class. While Amero was using a laptop computer—one accessible to both students and teacher—the computer began spinning off pop-up ads for pornographic websites. Amero concedes she was checking her email and surfing the Internet while she was supposed to be teaching. Perhaps that makes her a bad substitute teacher (though she had taught at the school for a year and a half without incident). But it doesn’t make her a sex offender.
Yet in January 2007 Amero was convicted on four counts on the ambiguous charge of "risk of injury to a minor, or impairing the morals of a child." Her ridiculous prosecution is the product of a Puritanical, zero tolerance hysteria; stubborn, obstinate police and prosecutors; and a criminal justice system that hasn’t adequately adapted to modern technology.
Prosecutors in the case improbably contended that Amero—who had no prior criminal record and was seven months pregnant at the time—intentionally exposed her class of seventh-graders to Internet pornography. She faced up to 40 years in prison.
Even if Amero had knowingly and willingly exposed her middle school class to pornography, she should at worst have lost her job, and perhaps faced a fine and revocation of her teaching license. That she could have spent most of the rest of her life in prison says she was either over-charged, or was charged with a ridiculously stupid law. Probably both.
But Amero insists she never intended for her class to be an Internet-abetted lesson in sex education, and there’s plenty of reason to believe her. She says she panicked when a loop of unwanted pop-up ads from porn sites began to appear while she was using the computer in front of her students. The more Amero frantically tried to close the ads, the more they kept springing up—a problem not at all uncommon on computers lacking up-to-date firewalls and virus protection.
What’s particularly troubling about Amero’s case isn’t necessarily the technical ignorance of the police and prosecutors—though that's troubling enough—but the fact that their ignorance seems almost willful. The state pointed out at trial that the school had put filtering software on its computers. But the school had also let the licenses for that software expire. It would have taken no more than a phone call with the Best Buy "Geek Squad" to learn that if filtering software isn’t updated, it's quickly rendered useless.
Early last year, after her conviction, Amero’s case caught fire on tech blogs and Internet message boards. Computer security experts across the country quickly recognized what had happened: Amero’s computer had been infected with malware, invasive software that can take control of a computer, often redirecting web browsers to porn sites. Police and prosecutors conceded that they hadn’t even bothered to test the computer for malicious software. Dozens of tech gurus volunteered to help with Amero’s defense. When they were finally able to examine her computer, they found what they suspected—it was infested with malware.
But it gets worse. The state’s expert witness, a computer crimes investigator with the Norwich Police Department, testified that because the URLs for the offending sites were "highlighted," Amero must have deliberately clicked on them. State’s Attorney David Smith took it a step further. He told jurors that Amero actually would have had to type the URLs in for them to show up in the browser registry. Both assertions are flat wrong. Internet Explorer, the browser Amero was using at the time, requires neither a mouse click nor a typed URL to show that a link has been visited. Any address loaded by the browser will show up as "visited," even those uploaded in a pop-up window. Many of the porn addresses were hidden behind innocuous-sounding URLs, some disguised as hair styling sites. Amero would had to have been pretty determined in her mission to expose seventh graders to porn to memorize and deliberately key in sites like http://pagead2.googlesyndication.com, one of the offending porn sites.
None of this mattered to cops, prosecutors, or the media. Children had seen adult naughty bits, and someone had to pay. Amero was made a pariah. Local newspaper the Norwich Bulletin ran an editorial lauding Amero’s conviction, declaring that her “intent was apparent” and "her deeds were disgusting."
But just in case Amero's lawyers did make a convincing case she didn't mean to upload the porn sites, Amero’s prosecutors had a fall-back plan: They argued that Amero should have taken measures to block students from seeing the computer once the images started loading.
Once computer experts proved the existence of malware, however, and showed the registry testimony to be flat wrong, the “well, she should have done something” defense was all the state had left, and it's the case they pushed in the media. Fox News’ Bill O’Reilly made that argument when he took up the case on his show, insisting that Amero should have turned off the computer. The Norwich Bulletin ran another editorial saying Amero should have "taped some paper over the screen." Prosecutors said at trial that Amero should have thrown a sweater over the screen.
But computer experts say Amero’s panicked reaction—to try and close the ads instead of turning off the computer—isn’t at all uncommon. At least one student testified that Amero did try to prevent him from seeing the images by physically pushing his face away from the screen. She also told a member of the school's staff about the problem. As a substitute teacher, Amero also didn’t have a password to access the computer. The teacher who specifically logged her on told her not to turn off the computer, or she and her students would be locked out for the rest of the day.
Perhaps Amero did show bad judgment in leaving the computer on. But should that be a felony? These prosecutors were ready to ruin Amero’s life by convicting her of a reputation-destroying sex crime—and possibly sending her to prison—because in their judgment, she didn’t properly react to the consequences of the school’s failure to keep its security software up to date. At worst, Amero is guilty of not knowing much about computers. And if that’s a crime, Norwich ought to also lock up its cops, prosecutors, and the editorial board of its local newspaper. Because they’re clearly just as ignorant about technology as Amero.
It wasn’t until earlier this month, four years after the incident, that the state of Connecticut finally dropped the four felony counts against Julie Amero. But it’s something of a Pyrrhic victory. In exchange for dropping the felony charges, Amero still had to plead guilty to a misdemeanor, pay a $100 fine, and forgo her teaching license in Connecticut. It’s hard to blame her for taking the deal, even if she’s innocent. The last four years have taken a toll on her health. Amero has been hospitalized from stress and a heart condition brought on by her case.
Incredibly, some public officials in Connecticut not only refuse to admit any error, they’re still making their case in public. The same day the plea deal was announced, New London County State's Attorney Michael Regan told Hartford Courant columnist Rick Green that he’s still convinced Amero is guilty, and was prepared to go to trial again. "I have no regrets,” he said. “Things took a course that was unplanned... For some reason this case caught the media's attention.”
Amero's case offers more evidence that the criminal justice system hasn't adequately adapted to a generation's worth of technological advances. Our courts are in bad need of some significant reforms, particularly when it comes to expert testimony. It’s one thing to have two competent, qualified experts arguing over evidence that can be interpreted in several ways. It’s something else to allow jurors to consider evidence that’s objectively, provably false. That’s particularly true when it comes from the prosecution's expert witnesses, whom jurors often give more deference to because they’re seen less as hired guns, and more as objective public servants.
Here, a clueless "computer crimes investigator" was permitted to give clearly erroneous testimony in a felony trial. Jurors were instructed to give that expert equal consideration to Amero’s own expert witness, who actually knew what he was talking about. It makes you ponder how many other local police departments have a resident "computer guy" who regularly testifies in criminal trials—and is in way over his head.
The solution is to work peer review, redundancy, and double-checking into the process of admitting forensic evidence at trial. Had three or four actual tech experts had the opportunity to review the conclusions of the Norwich PD's computer “expert,” they would have quickly seen his errors and recognized the symptoms of a malware infestation—just as they did when the case hit the Internet. The crucial difference is that they would have noticed all of this before Amero was charged and convicted, not after.
The very foundation of scientific inquiry is rooted in the peer-review process. It’s really an inexcusable failure that we haven’t yet found a way to utilize peer review to ensure the accuracy and integrity of the scientific evidence admitted in criminal cases—particularly given what's at stake.
Last weekend, New York Giants wide receiver and Super Bowl hero Plaxico Burress inadvertently shot himself in the leg at a New York City nightclub and—adding incarceration to injury—now faces a three and a half years mandatory minimum sentence on each of two felony weapons charges. Burress' possession of a loaded firearm outside of his home without a permit, which is a Class C violent felony under New York state law, is more than enough to strip considerable judicial discretion when it comes time for sentencing. (According to Burress' lawyer, the handgun—a .40 caliber Glock pistol—is registered in the receiver's home state of Florida.) The judge will, however, be able to determine whether Burress gets the minimum or anywhere up to the maximum of 15 years per count.
It wasn't always this way.
New York's would-be mayor-for-life Michael Bloomberg, no stranger to the gun rights debate, persuaded the state legislature to toughen the already stringent restrictions on firearms in 2006. From 1998 until that time, mitigating circumstances and judicial discretion could be used to determine appropriate punishment for an offender. The tougher new rules are just one prong in the mayor's many-faceted approach to gun control in the Big Apple, and the nation as a whole. With Burress' surrender to authorities this week, Bloomberg now has a high-profile defendant to help showcase his tough-on-gun-crime legislation.
In recognition of this juicy score—and like any good nanny—Bloomberg used a press conference to roundly scold both the responsible and the peripheral parties to the accident, such as the hospital that failed to report the gunshot wound as required by law, and the Giants organization for apparently failing to immediately throw themselves prostrate and beg forgiveness for their rogue employee.
"[T]he Giants should have picked up the phone right way as good corporate citizens," Bloomberg huffed, "I don't care [if] there is a legal responsibility for them to [report the incident], they are a team that is here in this region..." In Bloomberg's mind, extra-legal responsibilities somehow attach themselves to the Giants via geography and the arbitrary standards of business "citizenship." (It should be noted that the Giants' front office contends that it notified the NFL who, in turn, notified the police.)
In condemning the presumed innocent wideout, the mayor felt it necessary to upbraid him as well, saying that Burress should be thrown in the "slammer" because he makes his "living in the public domain." As one journalist noted, perhaps with her tongue pressed firmly into her cheek, what the mayor meant to say was that no exceptions would be made for Burress due to his celebrity. Surely, Mr. Bloomberg wouldn't possibly make an example out of someone simply for political gain. After all, as the mayor pointedly remarked, cops and (gasp!) children are killed by gun violence in the streets of his fine city. Something must be done!
But Burress' teammate Steve Smith also lives in the public domain. Several days before the mishap at the club, Smith was robbed at gunpoint outside of his home in Clifton, New Jersey. Former Giants teammate and current NBC commentator Tiki Barber discussed the two crimes on Sunday Night Football, explaining that Burress' foolish act may have been rational, if not completely appropriate, given the dangers that NFL players such as Smith have faced.
Looking back at recent gun-related tragedies that have struck the NFL, Barber continued, "We all remember [slain Denver Broncos cornerback] Derrent Willams from a couple of years ago and even last year, and ironically [Washington Redskins safety] Sean Taylor was honored at this game, and he was [fatally] attacked at his home. A lot of people believe that if [Taylor] had a gun, he wouldn't be dead right now." Barber failed to mention an attack earlier this year which left Jacksonville Jaguars offensive tackle Richard Collier paraplegic and without his left leg due to amputation.
Such an oversight is understandable given the surprisingly high number of similar incidents, but even those numbers are not enough to convince longtime NBC Sports broadcaster Bob Costas that protecting oneself with a handgun may be a rational decision. After Barber finished recalling the recently murdered NFL players, Costas launched into a harangue against the ludicrous notion of self-defense, demanding that Tiki provide a singular instance where a player had saved his own life or averted disaster with a handgun.
While Barber agreed with Costas that Burress' actions were irresponsible, he insisted that guns are common to many players, given the violent circumstances he described and the violent neighborhoods many of the NFL's athletes grew up in. They really do rely on guns for self-defense, Barber argued. And it doesn't take any great leap of logic to understand why these athletes don't broadcast the fact. Such an admission in Washington, D.C., San Francisco, or Chicago—all cities with NFL franchises—could land a player in jail, in addition to the fines and suspensions handed down by the league (not to mention local politicians publicly chiding them as if they were irresponsible children).
Leaving aside the wisdom of Burress's actions, the criminal penalty he faces, if convicted, is inflexible and unfair. No judge in the state of New York, no matter what evidence is given, no matter how sympathetic the judge may be to a man whose teammate had a gun pointed at his head less than a week before, no matter what damage lengthy incarceration may do to the man's career, family, and reputation, will be able to lessen the sentence accompanying a guilty verdict.
Such inflexibility bothers vice president and general counsel of Families Against Mandatory Minimums (FAMM), Mary Price: "Establishing mandatory minimums for crimes that do not hold a mens rea requirement," that is, not having to prove criminal intent, "is particularly harsh."
"FAMM isn't against punishment for crimes," Price explained, "and [our objection] is not about any particular sentence for a given crime. But a judge who has all the information on a case, who has access to all the mitigating and aggravating circumstances should be able to make that decision." Mandatory minimum statutes can cause "tremendous injustices in individual cases" by preventing judges from serving their "important and necessary function in our criminal justice process."
Yet the city and state of New York have determined, in their own infinite wisdom, that there is a uniform method by which to handle each and every offense under that statute. Under this view, trained and experienced judges, who deal with criminals daily, should not be trusted with actually judging whether or not a defendant (or society) would be better served by a lighter sentence, or even probation.
There is no question that Plaxico Burress should have handled himself differently over the weekend. He improperly handled a firearm in violation of city and state law, resulting in injury, career damaging publicity, and suspension without pay from a team favored to return to the Super Bowl. But as the circumstances stand, it is apparent that his career and, more importantly, his freedom for the next three-and-a-half to seven years hang in the balance, all so Mayor Bloomberg can showcase his anti-gun fetish. An individual's actions should be judged on an individual basis by an informed judge or jury—not by an opportunistic politician.
Jonathan Blanks is a writer and researcher in Washington, D.C., and a former intern at reason.
The Riverside County public defender's office says its own study of trial outcomes in 2006 and 2007 shows jurors are deciding more often in favor of defendants, and attribute it to prosecutors overcharging criminal cases.
A ranking district attorney official says the numbers are being manipulated, and the reality is convicted criminals are still going to prison.
The defender's office review of 574 felony trials over the two-year period shows guilty-as-charged verdicts on cases handled by its office fell from 53.2 percent in 2006 to 46.9 percent in 2007.
For 392 misdemeanor trials over the two years, the guilty-on-all counts category went from 49.7 percent in 2006 to 41.8 percent in 2007.
The 2007 results from the analysis shows "Fifty-three percent of the time, the community says after trial that a felony case was overcharged," said Assistant Public Defender Robert Willey, referring to jurors' decisions.
"On misdemeanors, the community rejects the filing decision on almost 60 percent of the cases," he said.
A leading prosecutor cast doubt on the effort.
"You can create statistics by your own measure and declare victory in any situation," Assistant District Attorney Chuck Hughes said in a telephone interview. The study "concocts" statistics from a few hundred cases "while ignoring many thousands of cases" that pass through the system, Hughes said.
The public defender's office, which handles 64 percent of felony and misdemeanor cases in Riverside County, has challenged District Attorney Rod Pacheco's office criminal charging policy, saying it contributes to court congestion.
Prosecutors stand by their charging policy and said it will harm the public if they change it just to ease overcrowded courts.
The public defender's study, accompanied by sheets of case analyses, gives an unusual glimpse into the world of pre-trial offers and counter-offers by attorneys.
Those rarely appear on court records because both sides are discreet about anything that may disclose their case's weaknesses.
The study was meant to look at the effectiveness of deputy public defenders at trial and measures the ultimate outcome of their performance by analyzing defendants' sentences.
"It's not a comment on the sentence, it's a comment on the decision to go to trial," Willey said.
Positive vs. Negative
The study claims "positive" trial outcomes for felony defendants went from 39.5 percent in 2006 to 50.2 percent the following year. The positive results in misdemeanors went from 57.2 percent to 58.8 percent.
"Positive" results, under terms of the defense-generated study, does not necessarily mean an acquittal. For most of the cases reviewed, it meant sentencing was better than what either the district attorney's office or a judge offered a client as a plea-bargain before trial.
If there was no offer, the case was considered positive if the sentence was still better than what could have been expected from the defendant's exposure on the original charges, Willey explained.
The study also has a category of "negative" for when a sentence was longer than what a prosecutor or the judge had offered, and "neutral" for cases in which there was no offer from a prosecutor or a public defender's offer went unanswered.
Under terms of the study, Hughes said, the public defenders can claim a positive result because a client got less of a sentence than what the district attorney's office sought.
"But they are ignoring the fact that it's still more than they ever wanted," he said.
An example of a negative outcome was a gang case in 2007. The public defender's office opted not to counter or accept a prosecutor's offer of three years. The defendant was convicted and sentenced to seven years.
A case classified as a positive outcome was the six-count forgery and burglary case against Jason M. Brown, 32, of Riverside.
Two counts were dismissed and Brown was acquitted of the others after jurors heard expert testimony that Brown was not a bad-check passer, but actually the victim of an Internet scam.
The one-year jump in positive results "could be affected by overcharging ... asking for more than what the case deserves," said professor Stanley A. Goldman of Loyola Law School.
Several factors can affect such results, Goldman said.
"Usually there is a new filing deputy or a new policy," he said. Or the district attorney is no longer dealing on cases that "would have been dealt with previously."
Hughes said the aim of releasing the study results go beyond an internal performance review.
"(Public Defender) Gary Windom is just trying to persuade the public that the district attorney offers are too high," Hughes said. "I don't think we should give sweetheart deals just to avoid a trial."
Under an evaluation used by the state attorney general's office, Riverside County district attorney's conviction rate was 94 percent -- the highest for large-population counties in the state -- for dispositions of felony adult arrests.
The 2006 report, the most recent available online, covers all cases, not just the ones that go to trial.
"I don't think our community wants us to give felons a slap on the wrist instead of what they deserve," Hughes said.
FILING IMPACT
Public Defender Gary Windom has said prosecutors are over-filing charges and making settlement offers that are not realistic, leading defendants to choose trial rather than accepting terms. That leads to court congestion, Windom has said.
"One over-filed charge can block the ability to settle a case," Willey said. "It can force everything in the case to go to trial. That is why the filing decision has such a tremendous impact."
Most cases filed in Riverside County do settle before trial. Recently released numbers from the state Judicial Council show 15,773 felony dispositions in fiscal year 2006-07 and 13,533 of those were pleas of guilty before trial.
"We do make efforts to resolve cases before preliminary hearings," Hughes said. "Naturally we disagree sometimes as to what the punishment the defendant should receive, and those cases go to trial."
Judicial Council numbers show Riverside County brought 15,773 felony cases to an end in fiscal 2006-07, and resolved 583 of them with jury trials. It used 280 misdemeanor jury trials as a way to conclude 23,038 of those cases.
In San Bernardino County, there were 20,038 felony cases resolved, but just 151 felony trials. The report said 41,215 misdemeanor cases were finalized, 108 of those by jury trial in fiscal 2006-07.
Riverside County's felony trial count appears to be second only to the 2,098 held in Los Angeles County, the state's most populous. Among the state's large-population counties, Orange County did not report a number for the study.
According to the report, there were 154 more felony and misdemeanor trials than the previous fiscal year in Riverside County.
Even a small increase can have serious consequences for an overcrowded system, Willey said. He said it would have taken three more courtrooms to handle that additional load.
Crowded Courts
Riverside and San Bernardino county courts have the worst backlogs in the state. New judges have not been added quickly enough to meet the needs of their growing populations.
With 76 judge and commissioner positions in fiscal 2006-07, Riverside County had a caseload of 6,618 per judicial position, while San Bernardino County, with 84 judges and commissioners, had 6,160 filings for each position.
San Bernardino County, however, has not faced the problems of Riverside County in terms of backlogged cases and dismissals due to lack of a judge to hear a criminal trial that has reached the end of constitutional speedy trial limits.
Prosecutors in San Bernardino County have said they take court congestion into consideration when reviewing whether to file a criminal case. Riverside County district attorney officials believe that could compromise public safety.
Defense attorneys should lose far more cases then they win, said Deputy Public Defender R. Addison Steele II.
"Prosecutors get to choose what gets charged and what gets pursued at every single trial," he said. "If they can't win, they should dismiss. If it has problems, they should deal it."
Reach Richard K. De Atley at 951-368-9573 or rdeatley@PE.com
Public Defender Trial Data Study
The study looked at results, then broke down the outcome in terms of the defendants' sentences, measured against any pretrial offer from prosecutors or the judge. A defendant could be convicted and sentenced to prison but still have a "positive" outcome if the time was less than any offer.
2006 Felony Outcomes, 256 trials*
Results: Guilty as charged: 138 or 53.2 percent, All not guilty or dismissed, 25 or 9.6 percent; partial guilty, 80 or 30.7 percent, other results,13 or 6.1 percent.
Results: Guilty as charged: 153 or 46.9 percent, All not guilty or dismissed, 42 or 12.4 percent; partial guilty, 97 or 29.8 percent, other results** 26 or 11 percent.
Results: Guilty as charged, 90 or 49.7 percent; All not guilty or dimissed, 49 or 26.8 percent; partial guilty, 29 or 16.4 percent; other results** 12 or 6.6 percent
Results: Guilty as charged: 89 or 41.8 percent, All not guilty or dismissed, 56 or 25.5 percent; partial guilty, 43 or 21.0 percent, other results** 24 or 11.4 percent.
Political-action committees are formed to raise and spend money on candidates.
They often are created to advance a political agenda or further the interests of businesses or industries.
The PAC in this week's spotlight is Friends of Mike Ramos.
Ramos is the district attorney of San Bernardino County. He has said he plans to run for re-election in 2010.
The following is a summary of some of the financial donations this year.
Contributions received from:
Larry W. Allen, Superior Court judge - $150
Lorenzo Balderrama, deputy district attorney - $250
Patrick L. Christianson, deputy district attorney - $150
Dennis Christy, deputy district attorney - $150
Braswells Health Care - $1,000
Arrowhead Credit Union - $2,500
$2,500 from Gresham, Savage, Nolan and Tilden, the law firm representing a Lake Arrowhead developer who was being investigated by the district attorney.
Lewis Investment Company - $2,500
Mitsubishi Cement Corp. - $5,000
San Bernardino County Safety Employees Association - $7,000
Manuel Lora Lew Rockwell.com Tuesday, Nov 18, 2008
When one walks into a business, most often you are greeted. As part of treating customers as their very livelihood, companies usually enact policies that make it a requirement for employees to acknowledge the arrival of a client or customer.
Imagine, however, if instead of getting a "hello" or "good morning," the manager of the store asks you to greet him. Further, imagine if the manager holds you at gunpoint and threatens you with imprisonment. Assuming you could escape, chances are that you’d never go back to that store. Yet this is what happens in the courts.
Virtually everyone in the courtroom has to rise when the judge enters. Failure to do so might result in contempt of court – you can get a fine or be sentenced to jail time for your audacity. This is, of course, absurd. First of all, government courts are financed through taxation. People who do not use the system at all, for example, still have to pay. This is a form of redistribution, also known as socialism. Aside from the fact that the resources to run the system are extracted aggressively, often the accused are victims rather than victimizers.
Laws and ordinances regulating peaceful drug or firearm possession or usage, municipal codes regulating assembly, zoning, prostitution and gambling, for example, violate no rights and therefore have no victims. Thus, when an innocent person is brought (violently or through the threat thereof) to one of those government courts, the last thing one expects is to be further humiliated by having to stand for the judge. If anything, the judge should be kissing the defendant’s feet and begging for forgiveness.
We should not be surprised that the state does whatever possible to ascertain its aggressive political power in every instance; the courtroom is not an exception. Perhaps in the old days it was customary to rise for the judge. So what? Today, however, I see this not as a gesture of respect but as a demand for obedience. The judge, a state bureaucrat, has no authority over anyone. Prove that the judge and the court deserve any respect. After all, they were the ones (along with the legislative and executive branches) to kidnap people from their homes, families and places of employment, only to be dragged to face "justice." Show that, especially in the case of victimless crimes, the defendant should stand for the judge. The concept of contempt of court, so long as the state holds a monopoly over this institution, is a farce. I believe it is the court, along with all the thugs it employs, who is in contempt.
Anyone willing to show the violence of the court by refusing to obey is a hero. Rising for the judge is bowing to the state.
By Michael J. Carter, IPS News. Posted November 7, 2008.
As prisoners across the country spend decades awaiting execution, the psychological effects are devastating.
SEATTLE, Washington, Nov 4 (IPS) — The length of time convicted murderers wait for their execution is steadily rising in the U.S., raising concerns that more will suffer from the mental illness known as "death row syndrome.”
The United States' 3,300 death row inmates can now expect to wait an average of 12 years from the day of their sentencing to death by lethal injection or electric chair, a doubling of the time gap in the mid-1980s, according to the U.S. Bureau of Justice.
This increase is mainly due to mandatory appeals introduced after capital punishment was reinstated by the Supreme Court in 1976 after a four-year suspension. These reforms have led to lengthier appeals, according to the Washington-based Death Penalty Information Center.
The 667 death row inmates in California can expect to wait nearly 20 years.
California's last execution was in January 2006. A month later, a judge halted the execution of Michael Morales, already on death row for 25 years, calling for measures to ensure no unnecessary pain during a state killing. The temporary moratorium put in place then has not yet been lifted.
In other death penalty states, inmates have also sometimes waited a quarter of a century or more to know the date of their execution, reprieve or exoneration.
On Sept. 16, Jack Alderman was executed in Georgia for killing his wife in 1974 after spending 33 years on death row.
In April, Renardo Knight had spent nearly 25 years on death row before his conviction was reversed due to evidence tampering.
Last year, Carey Dean Moore was moved from Nebraska's death row after waiting 27 years for the electric chair. The state's Supreme Court ruled this method of execution -- the only one on its statute books -- was unconstitutional.
Typically, death row inmates wait out the years for their punishment alone in solitary confinement, spending 23 hours a day in their cells. They are excluded from prison training and recreation programs. Visits and exercise privileges are restricted.
A few states, such as North Carolina, California and Georgia, allow varying levels of communication between death row inmates.
"There is a distinct syndrome associated with solitary confinement," Stuart Grassian, a psychiatrist and former professor at the Harvard Medical School of Psychiatry, told IPS.
In published research he has found that in the most sever cases this can lead to "agitation", "psychotic" and "self-destructive" behavior.
The healthy "often" became mental ill. There was a "severe" deterioration in the condition of those already mentally sick.
Grassian said the long appeals process of the condemned was "most worrisome".
"There is an enormous agony in endlessly, and helplessly, waiting while others decide whether you live or die.
"Generally, over time, the inmate learns he cannot afford to actually befriend his fellows; they keep disappearing into the death chamber. The horror of all that, the endless tedium and tension, often proves unbearable."
Rights activists say an illustration of the mental damage being done is seen in the case of Raymond Riles, on the Texas death row for the past 33 years. No execution date has been set because he suffers from delusions and paranoia. But in 1975, there were no mental health barriers in the way of his sentencing.
They also suggest "death row syndrome" may have played a role in the decision of 131 death row inmates since 1976 abandoning their appeals and "volunteering" for a quick execution.
"Many inmates in these circumstances cannot stand it any longer, fire their attorneys, drop their appeals, and hence "volunteer" for execution, said Grassian.
Seventy-five percent of these "volunteers" had a history of mental illness, according to John Blume, professor of law at Cornell University.
Rights activists have also raised concerns at the difficulties inmates with "death row syndrome" may face when their appeals succeed and they are given a lesser sentence and transferred to cells in the general prison. Only Missouri does not segregate death row inmates from the rest of the prison population.
The problems of adaptation and regaining their mental health may be more acute when they are exonerated and leave prison. So far this year, four death row inmates have been exonerated, bringing to 130 the number since 1973.
Experts question the reasoning behind the austere, often mentally damaging conditions on death row.
"The rational is that these inmates have nothing to lose and therefore they are potentially the greatest security risk," Grassian said.
But it had been proven that they were "less violent and disruptive than many other groups".
Ronald Tabak, a New York-based lawyer experienced in capital punishment issues, agreed.
"They tend to be less dangerous than other prisoners," he told IPS, adding: "There is no public sympathy for those who are sentenced to death."
Despite the growing debate about the "death row syndrome", the Supreme Court has yet to hear a case on the issue.
But two justices -- Stephen Breyer and John Paul Stevens -- have questioned the constitutionality of the long delays between conviction and the carrying out of executions.
The issue was "an important undecided one", Breyer said in 1995 during a ruling on the case of Clarence Allen Lackey. Lackey, who was executed in 1997, served almost 20 years on death row before his sentence was carried out.
So far this year, there have been 30 executions in the U.S., the most recent in Texas on Oct. 30.
Arthur J. Jones, 30, left his job as a public defender in Miami last week because of the low pay. He said the large caseload he faced could lead to mistakes.
MIAMI — Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.
Mr. Jones speaking about a client, foreground, who tried to flee because he was worried that a judge might revoke his bail after state attorneys discovered he had prior convictions.
Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, many of the government-appointed lawyers say that state budget cuts and rising caseloads have pushed them to the breaking point.
In September, a Florida judge ruled that the public defenders’ office in Miami-Dade County could refuse to represent many of those arrested on lesser felony charges so its lawyers could provide a better defense for other clients. Over the last three years, the average number of felony cases handled by each lawyer in a year has climbed to close to 500, from 367, officials said, and caseloads for lawyers assigned to misdemeanor cases have risen to 2,225, from 1,380.
“Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases,’ ” said David J. Carroll, director of research for the National Legal Aid and Defender Association.
The Miami-Dade case, which is being closely watched across the country, was appealed by the state, which says that defender offices must share the burden of falling revenues. On Friday, the Florida Supreme Court sent the case to an appellate court for a ruling. If the judge’s decision is upheld, it will force courts here to draw lawyers from a smaller state office and contract with private lawyers to represent defendants, at greater expense.
But such lawsuits are just the most overt sign of the burdens that lead harried lawyers in Michigan to talk openly about “McJustice” and in New York to make dark jokes about the plea bargain “assembly line.”
“In my opinion, there should be hundreds of such motions or lawsuits,” said Norman Lefstein, a professor at the Indiana University School of Law and an expert on criminal justice.
“I think the quality of public defense around the country is absolutely deteriorating,” Mr. Lefstein said, asserting that unless states spent more on lawyers, the courts would force them to delay trials or, as has happened in a few cases, threaten to drop charges against unrepresented defendants.
The most immediate impact of the rushed justice, Mr. Lefstein and Mr. Carroll said, is that innocent defendants may feel pressure to plead guilty or may be wrongfully convicted — which means the real offenders would be left untouched. Appeals claiming inadequate defense are very difficult to win, experts say.
In a 1963 decision, Gideon v. Wainwright, and subsequent cases, the United States Supreme Court ruled that poor criminal defendants are entitled to government-paid representation.
Here in the 11th Judicial Circuit of Florida, the defenders’ office has had its budget cut by 12.6 percent in the last two years, said the elected chief defender, Bennett H. Brummer, and the workload has climbed by 29 percent over the last four years.
State Senator Victor D. Crist, chairman of the Criminal and Civil Justice Appropriations Committee, is a vocal critic of the Miami-Dade lawsuit, saying Mr. Brummer is “blowing things out of proportion.”
Mr. Crist said the judicial system had faced smaller cuts than other parts of government. Although no defendant should be denied due process, he said, the courts, state’s attorneys and public defenders must all tighten their belts. He said defenders’ offices could increase efficiency by, for example, more carefully choosing which cases require depositions and other time-consuming actions. He said they should impose fees on clients, even if the sums were low or payment was delayed.
Legal defense is a right, Mr. Crist said, but “quality education is a right as well, and proper policing and safety in the community and maintaining standards in our prisons.”
Mr. Brummer countered: “There’s a race to the bottom here. As the loads worsen, the more experienced lawyers leave. But the cases continue to come in.”
This puts defenders like Arthur J. Jones, 30, on a treadmill of frustration. In his Miami office on a recent morning, Mr. Jones looked over a printout listing 155 current clients. He spent a frantic morning in court, handling arraignments and plea bargains for 23 offenders, a majority of whom he had never met before. His cases involve lesser felonies like cocaine possession, burglary and grand theft.Mr. Jones, in between hushed conversations with clients in the hallway or the holding pen, said he wished he had more time to investigate cases and could go to trial more often, rather than accepting the police version of events and then, after a short discussion, helping his clients make a life-altering deal.
“I’d love to have time to visit the crime scene and do more legal research,” Mr. Jones said.
In Missouri, the system has not added staff members in eight years, while the annual number of cases has grown by 12,000, said J. Marty Robinson, the director of the state’s public defenders. “We’re on the verge of collapse,” he said.
Mr. Robinson appealed to an oversight commission, and beginning last month, defenders in more and more counties are declining misdemeanor cases and others that are unlikely to result in incarceration.
In Kentucky, the state public advocate, Ed Monahan, filed a lawsuit that would allow defenders to turn down cases they cannot ethically handle. “Since Gideon, I don’t remember a time when the challenges to adequate representation have been so great,” Mr. Monahan said. In Kentucky as elsewhere, though, some senior legislators say that public defenders must share the fiscal pain.
Similar lawsuits are pending, or offices have turned down clients this year, in Tennessee, Minnesota, Maryland and Arizona.
In New York City, financing from the city and state for criminal defense declined by $2.7 million this year, from a budget of just over $90 million. Meanwhile, the annual number of cases has climbed to 226,000, from 210,000 in 2006.
The city’s Legal Aid Society is promoting a bill before the City Council that would set caps on the number of clients each lawyer could take on. But this would require a significant increase in funds at a time when both city and state face large budget shortfalls.
The hurried processing of even misdemeanor pleas can have serious consequences for the accused, noted Deborah Wright, president of the Association of Legal Aid attorneys, the union for New York defenders. Even if they get no jail time, such defendants still get a criminal conviction, which can affect immigration status and some public benefits.
Michigan requires counties to protect the indigent without providing state funds, resulting in large disparities. In some counties, those charged with misdemeanors are not even offered a lawyer; in others, the judge hires one for a flat fee, creating a conflict of interest and incentives to skimp on defense, according to a recent report by the National Legal Aid and Defender Association and the Michigan Bar Association. County and state officials acknowledge the problems, but counties say they cannot fix them without funds from a state government that is already reeling.
On the positive side, Mr. Carroll of the defender association said that Nevada, Louisiana and Montana had recently acted to shore up public defenders.
In Miami, as elsewhere, cases involving serious felony charges, potentially involving prison terms of decades or life, more often go to trial. Amy Weber, who has worked in the office for five years, handles about 50 serious felony cases at one time — too many, she said. “The stakes are a lot higher and the cases involve lots of witnesses, lots more discovery,” she said.
On one day in April, Ms. Weber had 13 cases set for trial, so she had to arrange for delays in all but one. That same day, James A. Simons, 59, who was in jail on child pornography charges, was offered a plea: one year in prison. Ms. Weber said she simply had no time to discuss the offer with him, but that he would have accepted it and ended his case.
Not receiving an immediate agreement, prosecutors gathered more evidence and rescinded the one-year offer. Mr. Simons ultimately had to accept a five-year sentence. “My client suffered and it makes me feel terrible,” Ms. Weber said. “You try to tell yourself you can only do what’s possible.”
Her colleague, Mr. Jones, left his $44,000-a-year job on Monday for private practice, saying he could not support his children and pay off school loans on that salary. A few weeks earlier, he had to tell a 53-year-old man who was charged with grand theft, for stealing a few locks from a Home Depot, that the state was offering five years because earlier convictions made him a “habitual offender.” In a discussion in a holding pen, his client asked, “Won’t they take one year?” Mr. Jones went back to the prosecutors, who calculated that the minimum sentence, under a scoring system here, would be 2.6 years. But Mr. Jones had no time to check their math.
The man was already resigned to taking that sentence when the prosecutors discovered their calculations were mistaken: the correct minimum was 366 days.
“You see how easily accidents can happen?” Mr. Jones said. “He easily could have gotten three years instead of one.”
UPDATE: Tuesday, November 4, 2008. A mistrial was declared today after a jury deadlocked in the case of a Border Patrol agent accused of murdering Francisco Javier Dominguez Rivera without provocation. U.S Border Patrol Agent Nicholas Corbett faced charges of second-degree murder, manslaughter and negligent homicide. Three eyewitnesses testified the 22-year-old was shot as he was kneeling to surrender for Corbett to arrest him and the three others. It was the second mistrial in the case.
Article and photo by Brenda Norrell
TUCSON -- US Border Patrol agent Nicholas Corbett is on trial for the murder of Francisco Javier Dominguez Rivera, 22, from Morelia, Mexico. Eyewitnesses said the border agent shot the youth in cold blood, without provocation.
At a shrine in front of the courthouse, family members and supporters are gathered to remember the youth and speak of the impunity that US Border Agents are operating under, as they murder people of Mexico. On Wednesday, Roy Warden, who previously burned Mexican flags with the Minutemen at human rights marches here, gathered with others in front of the courthouse to harass and yell at the family and their supporters.
This is not the first time a person from Mexico has been murdered in cold blood by US Border Patrol agents at the US/Mexico border. This time, there were witnesses when Border Agent Corbett shot the youth in the chest at close range on Jan. 12, 2007, in the Sonoran Desert near Douglas, Arizona.
Family and supporters said there is a poisonous atmosphere of racism in the United States. "We are talking about a poisoned atmosphere against immigrants," Isabel Garcia, cochair of Derechos Humanos, said during an interview outside the federal courthouse. Garcia compared today's racism toward migrants with the pre-Civil Rights era in the south. Garcia said border agents are murdering and getting away with murder. "We are living in really, really, dangerous times," Garcia said. "This case is about accountability, this case is about impunity. That is the bottom line."
Attorneys are presenting their final arguments today, Thursday, Oct. 30, 2008. Corbett is charged with second-degree murder, manslaughter and negligent homicide. His first trial ended in a mistrial after another jury deadlocked.
Listen online to today's interviews from the street, outside the courthouse, at the shrine for Francisco Javier:
A retired San Bernardino County Superior Court judge was publicly admonished Monday by the state Commission on Judicial Performance for making inappropriate comments to attorneys.
Paul M. Bryant Jr. was accused by the commission of making the comments on five instances since 2005, including calling two attorneys "obnoxious" and saying a prosecutor had "rocks for brains."
Bryant retired in January after 20 years as a Superior Court judge.
In an interview Monday, he said that for 18 years preceding his retirement he was a judge at West Valley Superior Court in Rancho Cucamonga.
According to the commission, in late 2006 or early 2007, Bryant told Deputy District Attorney Mary Izadi words to the effect that she had "rocks for brains" while refusing to accept a proposed plea bargain.
In February 2007, Bryant said Deputy District Attorney Kent Williams said, "One of the dumbest things I've ever heard a lawyer say," about the possibility that the judge could review an entire box of new documents that day.
Bryant later made a sarcastic comment about Williams' command of the English language, according to the commission's admonishment.
Also that month, Bryant said the District Attorney's Office "wimp(s) out" for not filing criminal charges against people who fail to appear in court when ordered to appear, according to the commission.
A public admonishment is the third-most severe of five levels of discipline that can be taken against judges, a commission spokeswoman said.
In 2007, there were 37 instances of discipline in the state, five being public admonishments, said Victoria Henley, spokeswoman for the commission.
Since his retirement, Bryant has often served as a retired judge on assignment, usually in civil courts in San Bernardino, said Brad Campbell, spokesman for the Assigned Judges Program of the Administrative Office of the Courts.
The public admonishment against Bryant will not preclude him from filling in on assignment in the future, Henley said.
In an interview Monday afternoon, Bryant said: "It was a great honor to serve the community as a Superior Court judge for the past 20-odd years."
He referred specific questions about the disciplinary procedures to his attorney, Heather Rosing.
She did not immediately respond to a call seeking comment on Monday afternoon.
The public admonishment against Bryant was the fifth instance of disciplinary action taken against a county judge in the past 10 years and the 11th instance since 1960, according to the state commission's Web site.
LOS ANGELES (AP) --A federal judge in Los Angeles has barred the Mongols motorcycle gang from selling or distributing its trademarked logo after authorities arrested dozens of its members in six states.
U.S. District Court Judge Florence-Marie Cooper granted an injunction requested by prosecutors late Tuesday that prohibits gang members, their family members and associates from licensing, selling or distributing the logo.
The order, however, did not include language that would prohibit Mongols members from wearing or displaying the logo. Prosecutors are seeking to take control of the gang's trademarked name.
At least 61 members were arrested under a racketeering indictment that accuses some of murder, attempted murder and drug sales.
An American flag waves within the razor wire-lined compound of Camp Delta prison, at the Guantanamo Bay U.S. Naval Base, Cuba, June 27, 2006.
Oct. 23, 2008 | When Army Lt. Col. Darrell Vandeveld began his work in May 2007 as a prosecutor at the Guantánamo Bay military commissions, the Iraq war veteran was one of the most enthusiastic and tenacious lawyers working on behalf of the Bush administration. He took on seven cases. In court hearings he dismissed claims of prisoner abuse as "embellishment" and "exaggeration." Once, when a detainee asked for legal representation only for the purpose of challenging the legitimacy of the military commissions, Vandeveld ridiculed the request as "idiotic."
So it came as a shock in mid-September when Vandeveld announced that he was resigning as a prosecutor because he had grave doubts about the integrity of the system he had so vigorously defended.
In the days following his resignation -- now testifying, remarkably, for the defense counsel in one of his own cases -- Vandeveld said that he went from being a "true believer" in the military commissions to feeling "truly deceived" about them. His deep ethical qualms hinged foremost on the fact that potentially critical evidence had been withheld from the defense by the government.
Vandeveld says he was pressured explicitly by superiors not to talk about his work at Guantánamo. Until now, the details of his story have largely been kept from public view. He maintains that he is not ready to speak at length about his decision to resign, but in several e-mail exchanges with me this week, as well as in a series of recent e-mail exchanges he had with others involved in the military commissions, a picture emerges of a man who struggled through an intense crisis of conscience. When he took action, he was ridiculed and bullied by his bosses for questioning the fairness of the system. The military also subjected Vandeveld to a mental-health evaluation after he decided to resign, perhaps aimed at undercutting his credibility.
Vandeveld's story reveals the painful struggle of a devoutly religious Catholic who became increasingly disturbed by a process he came to view as fundamentally unjust. Unable to confide in his family and friends because so much of the information in the cases he was working on was classified, he took the unusual step of confiding in his opposing counsel. He also consulted a priest online.
Vandeveld is at least the fourth prosecutor to resign from the highly criticized military commissions, but his account is perhaps the most stark and will surely cast a lasting pall over the process. On Tuesday, the Department of Defense announced that it was dropping charges against five detainees whose cases Vandeveld was prosecuting -- though not the controversial case that prompted his resignation.
That case, the one that ultimately provoked Vandeveld's change of heart, was supposed to be a slam dunk for the government. But as Vandeveld would come to discover, it was plagued by problems.
Mohamed Jawad, a young Afghan who allegedly fought with the Taliban, was accused of throwing a grenade into a vehicle carrying U.S. troops, gravely injuring two of them and their translator. Unlike most of the other men charged before the military commissions, who are accused of seemingly abstract crimes like "providing material support for terrorism," Jawad was charged with "attempted murder in violation of the law of war." There were witnesses to the attack and Jawad had reportedly confessed. It was the kind of coldblooded act the government hoped would capture the public's imagination.
Yet, problems arose in the case as soon as Jawad entered the Guantánamo courtroom last March. To begin with, it turned out that Jawad was only 16 or 17 at the time of his alleged offense. Under both U.S. and international law, he should never have been detained with adults, and he should have been provided educational opportunities, as well as contact with his family. He appeared emotionally distressed, holding his face in his hands and asking why he was at Guantánamo.
His defense counsel, Maj. David Frakt, told the court that Jawad was a homeless, illiterate teenager who had been drugged and forced to fight with Afghan militia, then abused by the United States and transported halfway around the world to Guantánamo where he was imprisoned for five years without charge and was now being used as a guinea pig to test a new system of military justice. He said that Jawad was deeply traumatized by the experience, to the point that he might be incapable of aiding in his defense.
In the beginning, Vandeveld was openly dismissive of the story.
"What you have heard is a series of exaggerations," Vandeveld told the court. "It's clear from what you've seen here today that he is able to assist in his defense."
But over the next six months, as more information about the case came to light, Vandeveld began to have misgivings.
Initially Vandeveld did not believe that Jawad was a juvenile at the time of his arrest. Because Jawad did not know his birth date (which is common among Afghan villagers), and had at times given different ages for himself, the United States did not record him as a juvenile. However, in the process of examining Jawad's prison records, it emerged that Jawad had undergone a bone scan at Guantánamo in 2003, estimating his age to be 18, which would have made him 17 at the time of the alleged crime.
"Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him," Vandeveld said in a declaration shortly after his resignation. "I am bothered by the fact that this was not done. I am a resolute Catholic and take as an article of faith that justice is defined as reparative and restorative, and that Christ's most radical pronouncement -- command, if you will -- is to love one's enemies."
Vandeveld also had not believed that Jawad had been mistreated by his American captors. But once again, evidence obtained in the process of discovery revealed a different story. Frakt asked the government to provide a copy of prison records on detainee movements at Guantánamo. In May, Vandeveld gave Frakt a stack of them.
The records showed that in mid-2003, Jawad had been removed from a Pashto-speaking wing in the detention center and isolated, as well as deprived of comfort items such as books or mail. In September 2003, after prolonged isolation, his mental health deteriorated. Interrogators observed Jawad talking to posters on his wall. Then, on Christmas day 2003, Jawad tried to commit suicide, first by banging his head against the metal structures in his cell, then by hanging himself.
They also showed that during a 14-day period in May 2004 -- several months after the suicide attempt -- Jawad was moved from cell to cell 112 times, an average of less than every three hours. These movements, which intensified between midnight and 2 a.m., turned out to be part of a sleep deprivation program known in Gitmo parlance as the "frequent flier program." The goal of the program was to disorient detainees and make them more compliant. The records, however, give no indication that Jawad was interrogated at this time.
Initially, Vandeveld did not realize the prison records showed that Jawad had been subjected to a regime of sleep deprivation -- the records consisted of many pages of detainee movements, much of it handwritten. The sleep deprivation was pointed out to him by Frakt, who had carefully scrutinized the records. However, Vandeveld had noticed the detainee's attempt at "self harm." Shortly thereafter, he told Frakt that he wanted to broker a plea agreement that would have given Jawad a minimal sentence and some rehabilitation before sending him home to Afghanistan.
In an e-mail exchange with Frakt on May 22, Vandeveld wrote: "If I ever thought this job required me to do anything I considered unethical, I'd be out the door."
"I appreciate that and I believe you," Frakt replied. "You may have to take back your comments about Jawad's complaints being embellished and exaggerated. It looks like he was telling the truth. Did you notice that he tried to commit suicide in 2003?"
"I did notice that saddening episode ... which is one of the reasons I am pushing for a plea in this case, and why I wanted to get this information in your hands asap," Vandeveld replied.
In a subsequent e-mail the same day, Vandeveld wrote, "BTW, I will correct my misstatements on the record the next time we're in session. I know I am obliged to do so."
A few days after that exchange, Frakt filed a motion with the court to dismiss the charges against Jawad based on evidence that he had been tortured.
When Vandeveld responded to Frakt's motion, he argued that although Jawad had suffered some abuse at Guantánamo -- an unusual admission by a government prosecutor -- the remedy was not to dismiss the charges, but rather to consider the abuse in mitigating the accused's punishment.
According to Vandeveld, when his superiors saw that he had conceded that Jawad had been abused, they were furious. They reprimanded him and made him withdraw the motion and resubmit it, conceding nothing regarding prisoner torture or abuse.
The new motion he submitted stated: "Jawad ... suffered no ill-effects from his alleged sleep deprivation."
As the summer wore on, Vandeveld began to have more doubts. A series of photographs emerged from the time of Jawad's arrest: They showed a naked and terrified teenager undergoing a strip search and medical examination.
Then, in late July, Vandeveld stumbled across a report that was sitting on a colleague's desk about an investigation into the death of an Afghan taxi driver named Diliwar who had been killed in U.S. custody. Investigators had come to Guantánamo to interview detainees who were held in Bagram at the time, and took a statement from Jawad.
In his statement, Jawad said that while at Bagram, he was made to wear a black bag over his head and that he was shackled and forced to stand for prolonged periods of time. If he sat down, guards would beat him, grab him by the throat and stand him up again. At one point, he said, they shackled him to the door so he was incapable of sitting down.
Vandeveld immediately informed Frakt about the report and said he was deeply disturbed by the abuse. Equally disturbing to him was that there seemed to be no system in place to provide such evidence to the defense.
"I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain 'procedure' for affording defense counsel discovery," Vandeveld wrote in a statement after his resignation. "One would have thought that after six years since the Commissions had their fitful start, that a functioning law office would have been set up and procedures and policies not only put into effect, but refined."
Vandeveld also said that he had feared retribution if he was perceived as being too cooperative with the defense. He cited another officer who was perceived to have done so and subsequently received a mediocre Officer Evaluation Report.
"I didn't express my concerns to Brig. Gen. Hartmann or Col. Morris before asking to be reassigned," Vandeveld told me by e-mail on Wednesday, "largely because I knew both are highly-indoctrinated ideologues whose likely response would have been to have my security clearance revoked as a punitive and preventative measure. (This concern is not happenstance; I could give examples were I not bound by my clearance itself.) The hostile, dismissive way I'd seen [another concerned officer treated by superiors] was enough for me to conclude my reservations would not be well-met."
Vandeveld's fears in this regard had a potentially devastating effect on the fairness of proceedings in Jawad's case: For example, Vandeveld said he did not provide the defense with information the government had about another suspect in U.S. custody who had confessed to the same crime Jawad is alleged to have committed. Nor did Vandeveld provide the defense with a report by a U.S. government intelligence analyst stating that Jawad may have been forcibly recruited into a militia group that targets young men, sexually abuses them and drugs them before forcing them to engage in violence -- a report that appears to have corroborated part of the defense counsel's case.
By August, Vandeveld was in despair. He had concluded that Jawad was in dire need of rehabilitation and he desperately wanted to broker a deal, but he could not persuade his superiors in the prosecutor's office.
Unsure of what to do, he consulted a priest online. In an Aug. 5 e-mail to the priest, which was first reported by the Los Angeles Times, Vandeveld wrote: "I am beginning to have grave misgivings about what I am doing, and what we are doing as a country. I no longer want to participate in the system, but I lack the courage to quit. I am married, with four children, and not only will they suffer, I will lose a lot of friends."
The priest, Father John Dear, known for his social activism, encouraged Vandeveld to quit. "God does not want you to participate in any injustice, and GITMO is so bad, I hope and pray you will quietly, peacefully, prayerfully, just resign, and start your life over," Dear wrote.
Vandeveld said he still didn't feel comfortable quitting. "One of the precepts of serving as a soldier is that one 'never quits,'" he told me. So he instead asked to be reassigned, to Afghanistan.
In the days after consulting with Father Dear, Vandeveld continued to try to broker a plea deal for Jawad. In an e-mail to Frakt, he complained that he had no pull in the prosecutor's office and that the chief prosecutor, Col. Lawrence Morris, seemed to have personal animus toward Frakt.
In early September, Frakt suggested in an e-mail that Vandeveld write a letter to the Convening Authority of the military commissions detailing his efforts to work out a reasonable pretrial deal for Jawad, and explaining that he was repeatedly overruled.
Vandeveld responded: "Let me think about that some more; I have to consider the impact on my family." In mid-September, he tendered his resignation.
Reprisal from the prosecutor's office was swift.
Vandeveld was directed to undergo a psychological evaluation. He was ordered to stay at home and prohibited from coming into his office pending his official release from military service.
"Those in charge of [the Office of Military Commissions] saw my actions as an abrupt volte face, an aberration borne of emotion, and were hence concerned about my mental well-being," Vandeveld told me. "As I've said before, the humiliating experience of undergoing a mental health assessment quickly showed that their concerns were unfounded."
In what may be an effort to prevent Vandeveld from testifying for the defense -- and possibly providing additional damning information about the government's conduct at Guantánamo -- the Pentagon on Tuesday announced that it was dropping charges against five of the detainees whose cases Vandeveld was working on. The prosecutor's office insisted that the announcement was unrelated to Vandeveld's allegations and that there were no plans to drop charges against Jawad.
Vandeveld is now back home, with his wife and children in Erie, Pa.
"Now that I'm home in Erie, far removed from DC not only in distance, I'm regaining my bearings and sense of self," he said by e-mail. "I've learned, to my immense surprise and gratitude, that outside the Commissions and military bubble, there are many, many fine people whose views are sincere and supportive. I've also heard from my buddies from my time in Iraq, all of them expressing fundamental support -- the connection doesn't get any deeper than that."
Jawad, meanwhile, remains at Guantánamo, going into his sixth year of confinement. The next hearing for his case is scheduled for Dec. 9.
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