Wednesday July 31, 2019

#ChangeLawyers Public defenders are the best lawyers to hold police officers accountable 

The following editorial was written by Joshua Michtom, an assistant public defender at the Connecticut Office of the Chief Public Defender.

After a police officer in South Bend, Ind., shot and killed Eric Jack Logan last month, contentious meetings between the public and Mayor Pete Buttigieg showed that there is often a serious lack of faith that allegations of police misconduct will be fairly investigated. We can fix this: Public defenders, not law enforcement officials, should be responsible for determining whether police misconduct occurred.

The skepticism about the way investigations are currently conducted makes sense: Police departments’ internal investigations are reliably lenient. The New York Police Department, for example, took nearly 2,500 reports of biased policing from residents since 2015 and found not a single one credible. Prosecutors and state police, the two other entities most likely to carry out an investigation of police misconduct, often decline to press charges even when video evidence seems to leave little doubt that an officer’s conduct has violated departmental policy.

Even the Department of Justice, which Mr. Buttigieg initially called on to investigate the killing of Mr. Logan in South Bend, inspires little faith. Although it was traditionally the most exacting auditor of local police conduct, forcing significant reforms around the country under previous administrations, the department has explicitly abandoned that focus under President Trump. 

Beyond this poor track record, the sense that police or prosecutors will not rigorously investigate allegations of police misconduct makes intuitive sense. No court would seat a juror who was a friendly co-worker of the accused. But that’s essentially what cities are doing when the accused is a police officer and a prosecutor is assigned to investigate. Police officers and prosecutors are on the same side in practically every criminal case. They are colleagues who work in concert toward a common purpose, emotionally and professionally invested in each other’s presumed honesty and competence.

Not surprisingly, communities of color, who are disproportionately exposed to police violence and misconduct, have a much less favorable view of the police than the population overall, and little belief that misdeeds will be revealed or punished. In a 2017 Pew Research poll, 64 percent of Americans said they had generally warm feelings toward the police. But for black Americans it was just 30 percent. If mayors, police chiefs and legislatures are serious about instilling real faith in these communities, they should hand over full control of investigations to the one group of lawyers used to treating the police in an adversarial fashion, all of them experts in police rules and procedures: public defenders.

Read the story on NY Times 

Speaking Of… Citizens should hold police accountable, too

On an unseasonably warm February afternoon in 2017, Jocques Clemmons was driving through the James A. Cayce Homes, the largest public-housing complex in Nashville, when he rolled through a stop sign and into the parking lot of the building where his girlfriend and younger son lived. A big, affable father of two, he was 31 years old and, like most of the neighborhood’s residents, black.

Officer Joshua Lippert of the Metro Nashville Police Department had been watching the stop sign from his Chevy Impala, where he sat alone. The car was unmarked, but easily recognized as belonging to the department’s “flex” team. Unlike patrol officers, who respond to calls for service in a fixed geographic territory, flex officers primarily move between neighborhoods that have high crime rates, looking for misconduct and engaging on their own initiative. People in Cayce call them the “jump-out boys” for their proclivity to drive up abruptly on suspicious activity and make arrests. Like most Nashville cops, Lippert is white. He turned on his lights and followed Clemmons into the parking lot.

Clemmons’s mother, Sheila Clemmons Lee, a caregiver for the elderly and disabled, was feeding her charges lunch when her phone rang. It was Clemmons’s girlfriend, and she was screaming. At first, Lee could make out only a few words--police, shot. When she and her husband arrived at Vanderbilt University Medical Center, Clemmons was in surgery. A detective approached and asked whether her son had an arrest record. Then a doctor came out and told her Clemmons had died.

“I need to see my son,” Lee recalls saying, but the detective barred the family from viewing the body, explaining that it had to be protected as evidence. By then, the police had tweeted notice that an officer had shot a “gunman” at Cayce Homes, accompanied by an image of a revolver. “This is his weapon,” the tweet read. Lee wouldn’t see her son’s body until a week later, at the funeral home.

In his first interview with an investigator the afternoon of the shooting, Lippert said that when he pulled up, Clemmons exited the car he had been driving and fled on foot, dropping a handgun as he tried to escape. Lippert said he tried to kick the gun away, but Clemmons managed to pick it up, and raised it in his direction. Lippert then shot him from about 10 feet away, hitting him once in the hip and twice in the back.

But there were ambiguities: The first officer to arrive after the shooting didn’t see a handgun on the scene—Lippert said he’d put it in his pocket to secure the area—and a subsequent lab analysis of the weapon found no identifiable prints or DNA linked to Clemmons.

Unlike the police departments of many neighboring cities, Nashville’s didn’t have dashboard or body cameras for most of its officers. Later that night, based on footage pulled from distant security cameras, the police announced that during the chase, Clemmons had “rushed and rammed Lippert”—though they would retract that account the following week, when footage from another camera came to light showing that the two had never collided. In their investigative files, the police referred to Clemmons as the “suspect” and Lippert as the “victim,” and they obtained a warrant to search Clemmons’s cellphone and social-media accounts. Lippert’s attorneys declined to comment on behalf of their client for this article. (Later, the district attorney announced that state law enforcement would take over this investigation and those of all future cases in which officer-involved use of force results in death.)

No one doubted that police face unique risks, but the apparent one-sidedness of the department’s account of the shooting felt to many like a provocation. Lee recalls thinking the police were “dehumanizing my son and painting a picture of him that’s not true.” A police spokesman said, by email, “In critical incidents, the MNPD works to disseminate accurate information to the community as expediently as possible to inform and negate any rumor or false information.”

Lee had raised Clemmons and his three younger sisters as a single mother, and even as a child, he was protective of her and the girls. Beginning when he was 7 or 8 years old, he worked at his grandparents’ fruit stand at the old Nashville Farmers’ Market, where his outgoing personality made him a natural salesman. “The whole city knew him from the farmers’ market, especially the older folks,” his sister Aja Tate recalls.

In high school, he fell in with what Lee thought of as the wrong crowd, and ended up with a record in the juvenile-justice system. Upon graduating from high school, he moved to Knoxville to try to get a fresh start and married the mother of his first son, but later he returned to Nashville. Every few years, he got in trouble with the law again, convicted of drug possession, misdemeanor assault, and driving without a license. For the past few months, he’d been staying with Lee. A Dallas Cowboys fan, he would often watch games with her. Now Lee picked out a casket for him decorated with the team’s logo.

Two days after Clemmons’s death, on a Sunday afternoon, Lee and her family walked to a pedestrian bridge overlooking downtown. The children held hand-lettered signs. fly high, joc, read one. At the bridge’s apex, the group released 31 balloons, one for each year of his life.

As they turned back toward the base of the bridge, a clutch of young people approached. Introducing themselves as community organizers, they asked Lee for permission to coordinate a response to the shooting, and she gave them her blessing. “We’re going to get justice for your son,” one of them said—though they were only beginning to understand what justice might mean in this case, and what would be required to attain it.

Read the story on The Atlantic 

More of This How one of the most racist Jim Crow laws was finally defeated

Even More of This A watershed moment for bail reform could reverberate across the country

Bells and whistles. That’s what one Harris County commissioner called parts of a long-awaited settlement to end the county’s unconstitutional system of poverty jailing.

What are these lavish extras?

A text-message reminder system to ensure court appearances. A simple way to reschedule court dates. Open court hours so defendants can make up missed court appearances and avoid arrest.

Lavish? Not hardly, especially when you consider the draconian system that prompted the civil rights lawsuit in the first place. It was a system that jailed low-level misdemeanor defendants before they even got to trial, much less were convicted, simply because they were poor while those with means walked free. It was a system based on a myth: that money bail works better than, say, an ankle monitor or a curfew to keep defendants out of trouble and showing up to court while awaiting trial.

It was a system based on the false premise that bail is for punishing people before they even face trial. In this country, we don’t punish people considered innocent until proven guilty. The only justifications for locking them up before trial is that they are a flight risk or a present danger to the community.

It was a system that commissioners should permanently abolish today by approving the settlement.

For decades, the liberty of poor people charged with minor crimes in Harris County was often decided in two-minute bail hearings where they were not provided attorneys, were not given clear instructions on their rights and were dissuaded from speaking, lest they be shouted down or ignored.

Bail was set based on an arbitrary schedule, not on ability to pay. Sometimes, it was based on whim of a magistrate: One woman’s bond was doubled after she continued to say “yeah” instead of yes.

People with money quickly posted bond and awaited trial at home. Poor people — even those who maintained their innocence and had valid defenses — were left in jail, often until they pleaded guilty just to get out. Those who stayed locked up lost their jobs, their housing, their ability to pay child support. All that made them more likely to charged with another crime.

Chief U.S. District Judge Lee Rosenthal held that the county’s bail practices caused “irreparable” harm to “tens of thousands” of people each year, violating equal protection and due process rights. The conservative 5th Circuit Court of Appeals agreed.

The system, often supported by people who called themselves fiscal conservatives, also wasted a lot of taxpayer money. One peer-reviewed study Rosenthal cited determined that if Harris County had granted the lowest-risk misdemeanor defendants personal noncash bonds between 2008 and 2013, nearly 6,000 convictions and 400,000 days in jail could have been avoided; those released would have committed thousands fewer felonies and misdemeanors — saving the county $20 million in supervision costs alone.

Who is really guilty of wasteful spending? The judges who perpetuated the unjust system and the county commissioners who bankrolled it. Those judges, Republicans who were sued in the class-action lawsuit, were replaced by Democrats in last year’s midterm elections, but not before squandering even more taxpayer money defending the status quo for years.

In the proposed settlement, the county would agree to pay $4.7 million in legal costs for the plaintiffs, on top of the $9.1 million already spent to contest the lawsuit.

The lead lawyer, Alec Karakatsanis, and his firm, Civil Rights Corps, in Washington, D.C., filed jointly with the Texas Fair Defense Project in Austin and five lawyers who donated services from the Susman Godfrey firm in Houston.

They set out to change Harris County’s system, and they achieved a national model for ending poverty jailing. Harris County, which didn’t even track and analyze data on pretrial misconduct, will now collect it, share it with the public, study the issue and find ways to reduce no-shows in court and prevent re-offending.

Poor defendants, once deprived attorneys in bail hearings, would be provided “zealous and effective representation.”

Read the story on Houston Chronicle 

Say it Louder Taxing tampons is unconstitutional 

The following editorial was written by Erwin Chemerinsky, dean of the UC Berkeley Law School, and Jennifer Weiss-Wolf, co-founder of Period Equity and author of “Periods Gone Public: Taking a Stand for Menstrual Equity.”

If the government were to require that only men or only women had to pay a tax of several hundred dollars a year solely because of their sex, that would be an unconstitutional denial of equal protection under the 14th Amendment. Yet that is exactly the effect of the so-called tampon tax.

Currently, residents of 35 states must pay sales tax on purchases of tampons and pads because they are not deemed necessities worthy of an exemption. And that’s in addition to the roughly $5 to $10 for these products that women have to shell out each month. States collectively profit upwards of $150 million a year from taxing menstrual products. In California alone, women pay $20 million annually.

Although many states considered creating tax exemptions this spring, only one permanent exemption was approved. Over the holiday weekend, Rhode Island Gov. Raimondo signed a new state budget, which included a provision approved by the Legislature to make menstrual products sales tax exempt starting in October.

The issue also became a matter of fiscal negotiations in California. Back in May, Gov. Gavin Newsom wrote the cost of implementing a tax exemption for menstrual products into his proposed budget. The catch: It would last only for the duration of the budget, for two years. That move was backed by the Legislature, which had been trying unsuccessfully to pass a permanent exemption into law since 2016. The governor signed the budget on June .

Temporary expenditure lines — subject to the whim of the state’s leadership — are not enough. The sales-tax-exempt status of menstrual products must be made permanent in California and adopted into law in every state.

The issue is gaining traction globally. Back in 2015, Canada eliminated its national goods and services tax on menstrual products. Similar exemptions have since passed in diverse nations and economies, including Australia, India, Malaysia and South Africa.

In the United States, where sales taxes are levied by each state, bills have been introduced in 32 legislatures since 2016 to exempt menstrual products from sales tax. Five succeeded: Connecticut, Florida, Illinois and New York passed laws. Additionally, citizens of Nevada approved a 2018 ballot measure to accomplish the same. Another 10 states don’t tax menstrual products — either because they collect no sales tax at all, or because they’re included under general exemption categories.

In 2019, tampon tax bills were introduced in 22 states with bipartisan and overwhelming public support. And yet, the legislative sessions ended with a dismal scorecard. In Tennessee, legislators added insult to injury: After a tampon tax bill died there this year, a subsequent budget surplus was used to eliminate a gun ammunition tax, enabling the state to save its “hunters and shooters $500,000 annually across the state,” as one state representative explained to his constituents.

As a matter of policy, compassion and common sense, most states explicitly exempt “necessities of life” from sales tax, with food and medicine at the top of the list. In some states, necessity exemptions include things such as bingo supplies, cotton candy, erectile dysfunction pills, gun club memberships and tattoos. Menstrual products certainly rank as a necessity for most women, for much of their lives. They are essential for attending school, working and functioning in society.

But as a matter of law, the argument extends far deeper. The tampon tax amounts to sex-based discrimination in violation of the equal protection clause, both under state and federal constitutions — making it more than merely unfair or inequitable, but unconstitutional and therefore illegal.

Read the story on LA Times 

Less of This A jury of your peers? Not if you’re a Black man

The following editorial was written by Brendon Woods, the first African American to be appointed Chief Public Defender in Alameda County and is the only black Chief Public Defender in California. He is also the former president of the California Public Defenders Association.

In California, it’s hard to argue that the right to a jury of your peers includes black men. This year, we can change that.

During my 20-plus years as a public defender in California, I have handled thousands of criminal cases. I can’t tell you how often I’ve sat at the defense table with a young African American client who was excited to prove his innocence, only to see his enthusiasm replaced with hopelessness and dread once he saw the jury.

It’s difficult to tell a young man that he shouldn’t feel defeated when faced with the fact that not a single person who will be deciding his future looks like him. He is immediately confronted with the reality that he will not be getting a jury of his peers.

In theory, juries are the backbone of our criminal justice system; they are supposed to reflect the voice of our community. Yet under current California law, this is far from the case.

California law forbids people with past felony convictions from serving on juries — no matter how old the conviction, no matter if the person had successfully completed probation or parole, and no matter whether the old crime is now no longer a felony.

As a result, nearly one-third of African American men are permanently excluded from jury service. This means a jury that represents a fair cross-section of the public is out of reach. The lifetime ban on people with felony convictions also distorts the voice of the community by silencing too many of its members.

SB310, a bill currently being debated in Sacramento, would change that. Authored by state Sen. Nancy Skinner, D-Berkeley, SB310 would expand the pool of eligible jurors by allowing people with felony convictions to serve. It would move California toward a fairer and more representative jury system.

The idea that those accused of crimes can have their cases decided not by judges or legal professionals — but by their peers — is designed to lend legitimacy to our criminal justice system. This right is supposed to apply to all.

There is history behind these exclusions. Not long ago, juries were composed only of property-owning white men. Women and people of color were excluded from jury service. Jury verdicts were frequently unjust and rightly viewed with suspicion by excluded communities.

Recently, the case of Curtis Flowers received national attention as the subject of the popular podcast “In the Dark.” Flowers was tried six times for the same crime by the same prosecutor in Mississippi. The U.S. Supreme Court finally reversed the most recent conviction, concluding that the white district attorney violated Flowers’ constitutional rights by intentionally removing African Americans from the jury. In the six trials combined, the prosecutor removed 41 of 42 black prospective jurors.

Lawyers in my office recount cases in which they experience a shocking lack of diversity in juries, despite the fact that Alameda County is one of the most diverse counties in California. In two recent cases, two out of 92 identified as black and three out of 79 identified as black.

Opponents of SB310 have argued that people with felony convictions are too biased to ever serve on a jury. But this argument fails to acknowledge that the purpose of our jury selection process is to weed out bias.

Lawyers and judges are trained to identify bias and are effective every day in dealing with potential bias in thousands of prospective jurors. Members of advocacy groups, members of hate groups, prosecutors and defense attorneys, friends and family members of the litigants, and innumerable others may harbor biases — but only those with prior felony convictions are categorically excluded.

We cannot be satisfied with a jury system that shuts the door on so many Californians. Juries that accurately reflect the diversity of their communities speak with a more legitimate, just, and authoritative voice, and the entire justice system will be the better for it.

As an African American male, I am faced with the harsh reality that if I am ever arrested and charged with a crime, under current law, it is almost guaranteed that I will not have a jury of my peers. Sen. Skinner should be commended for taking up this worthy fight.

Lawyers and judges are trained to identify bias and are effective every day in dealing with potential bias in thousands of prospective jurors. Members of advocacy groups, members of hate groups, prosecutors and defense attorneys, friends and family members of the litigants, and innumerable others may harbor biases — but only those with prior felony convictions are categorically excluded.

We cannot be satisfied with a jury system that shuts the door on so many Californians. Juries that accurately reflect the diversity of their communities speak with a more legitimate, just, and authoritative voice, and the entire justice system will be the better for it.

As an African American male, I am faced with the harsh reality that if I am ever arrested and charged with a crime, under current law, it is almost guaranteed that I will not have a jury of my peers.

Read the story on SF Chronicle 

Less of This Too Lawyers are furious because immigrants are being denied court interpreters

The Trump administration has begun taking steps to eliminate in-person interpreters from "master calendar” hearings, the first appointments that migrants have in immigration court meant to inform them of their rights, next appointments, and required preparation. Instead, immigrants will be shown an orientation video with subtitles then have the potential to use a telephone interpreter.

The Department of Justice announced the change to immigration judges in June, citing a desire to increase efficiency, and were set to begin the week of July 15th, starting with courts in New York and Miami, according to Buzzfeed News. As of now, all videos have been recorded in Spanish, although there are plans to expand the program to include twenty other commonly requested languages in the near future. Sources told the San Francisco Chronicle that the orientation video was confusing and difficult to understand, and many experts fear that the change will have a detrimental effect on immigrants’ ability to defend themselves in court—or even understand what’s happening to them—all in the name of cost-cutting.

“This orientation won’t help anyone at all,” said Claudine Murphy, an immigration attorney at the Immigrant Justice Corps, a national organization that provides legal services to immigrant families. “A person can watch one of those videos, but when they show up for a hearing and the judge asks them questions, they will still be unable to understand or respond.”

Under the new mandate, immigrants will be unable to ask questions of judges during court proceedings unless they happen to have a bilingual lawyer. Judges are also allowed to try to track down an interpreter in the court house who happens to be in the building, or use telephone interpreting service that judges told the Chronicle can be “woefully inaccurate and substantially delayed.”

While some lawyers, like Murphy, are fluent in a second language and are able to explain court proceedings to their clients as they happen in real time, many cannot. For many clients, interpreters are vital for understanding court proceedings, especially those who are not yet represented by an attorney. According to immigration attorney Natalia Morozova, clients in immigration court who are unrepresented are already far less likely to make their court dates, and this is often because they do not understand what is going on.

“In the more than 15 years that I’ve been going to court with clients, I can count on both hands the number of cases that have been done entirely in English,” said Morgan Weibel, the Executive Director of San Francisco’s Tahirih Justice Center, a non-profit focused on aiding female migrants and refugees. “Right now, about 95% of our clients in removal proceedings require interpreters. It’s hard enough for non-lawyers to understand the legal jargon that is used in court settings, so imagine having to do that in a second or third language.”

This new policy follows several recently implemented migration laws such as the Migrant Protection Protocol and changes to asylum legislation, both of which make it more difficult for migrants to enter and stay in the U.S. Many are concerned that removing in-person interpreters from master calendar hearings will have the same affect.

“Individuals in court no longer have a meaningful opportunity to be heard because they literally can’t be,” said Murphy. “This is a severe due process violation.”

Read the story on Vice

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