Wednesday August 7, 2019

#ChangeLawyers A jailhouse lawyer’s relentless pursuit of justice has taken him all the way to the Supreme Court 

“For 23 years, I was a jailhouse lawyer,” said Calvin Duncan, a former inmate at the Louisiana State Penitentiary in Angola. “That was my assigned job.”

He had a 10th-grade education, and he was serving a life sentence for murder. The prison paid him 20 cents an hour to help his fellow prisoners with their cases.

He got good at it, and he used his increasingly formidable legal skills to help free several inmates. He knew how to spot a promising legal issue, and he was relentless. Seasoned lawyers sought his advice.

One issue in particular consumed Mr. Duncan. He could not understand how a Louisiana law that allowed non-unanimous juries in criminal cases could be constitutional. He would not let it go, working on about two dozen failed attempts to persuade the Supreme Court to address the issue.

The justices finally agreed in March to decide the question. They will hear arguments in the case, Ramos v. Louisiana, No. 18-5924, on the first day of their new term, on Oct. 7.

G. Ben Cohen, the lawyer who filed the petition in the latest case and many others, said Mr. Duncan had played a crucial role in identifying, shepherding and presenting the cases.

“From well before I was involved,” Mr. Cohen said, “Calvin understood that this was a winning legal issue — how to frame it, raise it and challenge the non-unanimous law.”

“The lessons that Calvin taught me were not just about the law,” Mr. Cohen said. “They were about not giving up.”

Emily Maw, a lawyer with Innocence Project New Orleans, said Mr. Duncan was persistence personified.

“He’s been on it for decades, when no one was on it and no press was reporting it,” she said. “Calvin pushed constantly. He has pushed when it was unpopular. He has pushed when no one thought it was going anywhere. He has pushed and pushed and pushed.”

If the Supreme Court agrees with Mr. Duncan’s position, Ms. Maw said, “it could save hundreds of men from life in prison.”

Read the story on NY Times 

Say it Louder The death rattle of white supremacy​

The following editorial was written by WAJAHAT ALI, a lawyer, journalist, and playwright. He is the author of the play The Domestic Crusaders, and the lead author of the investigative report Fear Inc.: The Roots of the Islamophobia Network in America.

Will America finally confront the violent death rattle of white supremacy? Or will it fail to inflict the coup de grâce, allowing the ideology of hate to revive itself into a global movement, with radicalized young men engaged in what they believe is a zero-sum war for survival?

Last year, those opening lines might have been dismissed as alarmist rhetoric and hyperbole. We no longer have that luxury.

In the past week alone, three American cities have experienced three mass shootings, with gunmen killing at least 32 people. Yesterday, police say that Patrick Crusius, 21, walked into a Walmart in El Paso, Texas, a border town with an 80 percent Hispanic population, opened fire, and killed 20 people. Several hours later, police say that Connor Betts, 24, shot and killed at least nine people in a busy downtown district of Dayton, Ohio. At the beloved annual Gilroy Garlic Festival, 19-year-old Santino William Legan allegedly opened fire on the crowd and killed three people.

The motives remain unclear in each of these cases. But the information that’s presently available is ominous.

Like a number of other recent attacks, at least two of these incidents appear to be connected to an ideological infrastructure that nurtures and mainstreams hate against people of color. The El Paso shooter allegedly wrote a four-page note to explain his deadly rampage. The author of the manifesto claimed that he was inspired to target Hispanics after reading the manifesto of the Christchurch, New Zealand, terrorist who attacked two mosques and killed 51 people in March. He wanted to kill Hispanic immigrants as an “act of preservation” to reclaim his country from “destruction,” he explained. He referred to Hispanics as “invaders with high birth rates” and expressed his fear of “shameless race mixers,” “the threat of the Hispanic voting bloc,” and the “cultural and ethnic replacement brought on by invasion.”

The manifesto expresses extreme versions of a fear that has also been expressed by prominent political figures. President Donald Trump used invasion to describe a caravan of immigrants trying to cross the border. The Fox News host Tucker Carlson has called immigrants “invaders” who “pollute” the country and make it dirtier. In the past few weeks, President Trump told four congresswomen of color, all U.S. citizens, to go back to where they came from. He stood onstage at a campaign rally while the crowd chanted “Send her back!” for 13 seconds. He retweeted Katie Hopkins, a British extremist who has called migrants “cockroaches” and called for a “final solution” for Muslims. Some Trump supporters now openly flash white-power signs in front of cameras.

Hate that was once hidden has now been given permission to come out of the closet and drop its white robes and masks. This has real-life consequences for communities of color, Jews, and immigrants. Robert Bowers, the terrorist who shot and killed 11 people at the Tree of Life synagogue in Pittsburgh, wanted to punish Jews for allegedly helping to bring “invaders”—immigrants and Muslims—into the country.

My father, a Muslim immigrant born in Pakistan who has lived in this country for more than 50 years, called me last week, worried about his grandchildren’s future. He fears that more white rage will be unleashed if Trump is reelected. My children are innocent, lovely, caramel-mocha-skinned babies born and raised in America, but my father feels that the country he’s called home for half a century will no longer welcome them. My local mosque now has an armed guard with a bulletproof vest standing outside our weekly Friday prayers. My Jewish friends say their synagogues have amped up security in the past year. We no longer feel safe in our houses of worship.

And so, I feel compelled to ask Trump supporters: Is it worth it? How many have to suffer for you to feel great again?

As America becomes a majority-minority country, the nation will experience more racial anxiety, which was the primary reason many voters went for Trump in 2016. If you have been in power your whole life, equality looks like oppression. Some white Americans feel that people of color are “replacing” them with each success, each publication, and each promotion. Those who have historically been marginalized, excluded, or cast as permanent sidekicks, though, finally feel that we have the chance to taste the American dream, which in my home tastes like goat biryani.

For them, our success is the American nightmare.

It shouldn’t surprise anyone that white-supremacist terrorism is now the No. 1 domestic-terrorist threat in America. FBI Director Christopher Wray recently said that the FBI has recorded about 100 domestic-terrorism arrests in 2019, most of them involving ties to white supremacy. The FBI, for the first time, has also identified fringe conspiracy theories as a risk factor for domestic terrorism, citing QAnon, which says that an active deep-state conspiracy is trying to take down Trump. QAnon signs and shirts now appear frequently at Trump rallies. An FBI document predicts that conspiracy-theory-driven extremists are likely to increase during the 2020 presidential-election cycle.

As a Muslim American, I have been asked for 18 years to denounce violent Muslim extremism done by terrorists I’ve never met. My loyalty and patriotism are interrogated, questioned, and treated as suspect. So what do we say to those who enable and promote a white-nationalist ideology?

First, we have to name it, calling it out as white-supremacist terrorism and prosecuting the criminals as terrorists. We must demand that our elected leaders do the same, and if they refuse, ask why they are enabling and coddling violent criminals who threaten our national security.

We need to retire euphemisms and directly address Trump’s racism, which is inciting so much pain, anger, and hate—dividing this country along racial and religious lines.

We must stop giving mainstream platforms to provocateurs of hate, because the ratings and retweets are never worth it.

We also need widespread education for law-enforcement agencies, government officials, judges, counselors, and even teachers and churches about this growing threat of white-supremacist terrorism.

Finally, people of color can no longer shoulder this burden alone. We need all Americans to step up, to stand with those targeted for violence, because hashtags and tweets won’t cut it any longer. The dangerous force of hate is coming for all Americans who are not in its grip; only by standing together can we fight it.

Read the story on The Atlantic 

More of This It’s time to allow people with felony convictions to serve on juries

Nearly 20 million people in the United States are estimated to have felony convictions. This makes up approximately 8 percent of all adults and a full third of Black men.

They are forced to contend with the maze of policies that treats people with criminal records as less deserving, erecting barriers to the personal growth that enables stability and prosperity, and excluding them from multiple arenas of civic life. 

Among these are felony disenfranchisement laws and bars on jury service, exclusions that lay bare how the criminal legal system functions as a mechanism for silencing the communities most affected by it. In addition to diminishing a sense of investment and belonging in a community, these laws compromise representation, at the voting booth and in courtrooms. 

As efforts to end mass incarceration and expand voting rights have been gathering momentum, there has been increasing attention to these consequences. The passage of Amendment 4 in Florida last year (and the continued contest over expanded voting rights)  and Democratic presidential candidate Senator Bernie Sanders’s stance that a criminal conviction should have no bearing on the right to vote (as is already the case in Maine, Vermont, and Puerto Rico) have brought renewed attention to the intersection between voting rights and criminal justice.

The bar on jury service has received less attention, but recent bills in California, Louisiana, and New York have sought to address it. All three states permanently bar people with felony convictions from serving on juries of all kinds. Another 25 states and the federal system do the same. Every other state except Maine bars jury service for people with felony records through the completion of a sentence or for some period of time following completion.

California’s bill, Senate Bill 310, would restore the right to serve on a jury. (New York and Louisiana’s bills failed to pass this year.) In an article last week for the San Francisco Chronicle, Brendon Woods, the chief public defender in Alameda County, argued for its passage. 

Woods wrote that over the course of his 20-year career, “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.”

“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,” Woods wrote. “This right is supposed to apply to all.”

Read the story on The Appeal 

Speaking of… When prosecutors exclude Black people from juries

Seven years ago, a judge ruled that prosecutors improperly excluded black jurors in the murder trial that put Marcus Robinson on death row.

Now the North Carolina Supreme Court has to decide whether that evidence of racial bias—and similar findings of systemic bias in a handful of related cases—must be taken into account in death penalty appeals.

The hearings stem from the 2013 repeal of the Racial Justice Act, a law that briefly allowed death row inmates to seek life sentences without parole if they could prove that racial bias tainted jury selection in their trials.

After Democrats passed the law in 2009, Robinson and three others won life sentences without parole.

But when pressure from prosecutors and a campaign of fear-mongering led the Republican-controlled legislature to repeal the Racial Justice Act, Robinson and the other three prisoners returned to death row.
The impending hearings, scheduled for late August, raise broad questions about the equity of North Carolina’s judicial system, said Cassandra Stubbs, executive director of the ACLU’s Capital Punishment Project, which is representing Robinson. “The importance of fairness and the integrity of the court is really on the line.”

And the hearings come at a time when the U.S. Supreme Court has been cracking down on racial discrimination in jury selection. In June, the court overturned the murder conviction of Curtis Flowers, a black man tried six times in Mississippi by a prosecutor who used all of his peremptory strikes against black jurors in each of the first four trials.
North Carolina Attorney General Josh Stein declined to comment on the hearings but stressed the importance of holding defendants accountable and providing justice for victims.

North Carolina didn’t include African-American citizens in jury pools in a meaningful way until the mid-20th century; prosecutors then often used peremptory challenges to eliminate black jurors, according to James E. Coleman, Jr., a professor at the Duke University School of Law.

Taking black people off the jury lowers the standard of proof for the prosecutor, Coleman said, because white jurors will be more willing to accept any kind of evidence if the defendant is black.

In 1986, the Supreme Court ruled in Batson v. Kentucky that qualified jurors cannot be removed from jury pools because of their race or gender. But the North Carolina Supreme Court has never agreed with defendants who argued that’s what happened in their cases.

Marcus Robinson and a co-defendant went on trial in 1994, in Fayetteville, N.C., charged with robbing and murdering a white high-school student. The victim’s family declined to comment.

County prosecutors removed 50 percent of black jurors and less than 15 percent of white ones; the jury that convicted the two defendants had just two African-American members.

More than a decade later, the state legislature passed the Racial Justice Act, allowing death row inmates to receive commuted life sentences without parole if they could prove that racial bias influenced their death sentence.

Floyd McKissick, Jr., the bill’s sponsor, said it was fundamentally about procedural fairness—not an attempt to end capital punishment, as opponents claimed.

“It brought together people who all shared the common belief that if the death penalty was to be used in cases, then it should be free of racial bias,” he said.

Lawyers for Robinson and others on death row who had been prosecuted in Fayetteville by the Cumberland County District Attorney’s office began reviewing their jury selections.
They discovered that in numerous cases prosecutors asked potential black jurors targeted and inappropriate questions. For example, in one case they asked a man if he was familiar with Bob Marley and the former emperor of Ethiopia.

In the 2001 capital murder trial of Quintel Augustine, who was charged with shooting a police officer, a Cumberland County prosecutor dismissed every qualified black juror in the jury pool. In his notes, the prosecutor described one black man as a “thug.” Another man was labelled a “blk wino,” though a white juror with a DUI conviction was still selected (“country boy — ok”). One of Augustine’s prosecutors had also attended a seminar that taught North Carolina district attorneys how to give race-neutral explanations for striking black jurors, and had a handout of accepted reasons like “hairstyle.”

A statistical analysis found that prosecutors across the state removed qualified black jurors at more than twice the rate of non-black jurors.

Read the story on The Marshall Project 

Less of This Trump has nominated 1 in 4 federal judges, and they are nearly all white men

President Trump can be a master of distraction, but when it comes to judges, his administration has demonstrated steely discipline.

In the 2 1/2 years that Trump has been in office, his administration has appointed nearly 1 in 4 of the nation's federal appeals court judges and 1 in 7 of its district court judges.

The president recently called filling those vacancies for lifetime appointments a big part of his legacy. Given the relative youth of some of his judicial picks, experts say, those judges could remain on the bench for 30 or even 40 years.

Legal observers say Trump and his Republican allies in the Senate have placed an unmistakable stamp on the federal judiciary, not only in ideology but in identity.

"What stands out to me is that President Trump is deliberately nominating the least diverse class of judicial nominees that we have seen in modern history," said Kristine Lucius, executive vice president for policy at the Leadership Conference on Civil and Human Rights. "It is stunning to me that 2 1/2 years in, he has not nominated a single African American or a single Latinx to the appellate courts.”

In all, around 70% of Trump's judicial appointees are white men. Dozens of those nominees have refused to answer whether they support the Supreme Court's holding in Brown v. Board of Education, the 1954 opinion that said racial segregation of public schools is unconstitutional.

Read the story on NPR 

Less of This Too One lawyer. 3,802 cases.

Melinda S. Cameron has been a private criminal defense attorney in Detroit for 35 years—and she hasn’t taken a vacation in a decade, she says. Nearly every day, you can find her at the Frank Murphy Hall of Justice, the city’s austere 1970s-era courthouse, asking the clerks whether any poor people need a lawyer.

Most of the judges there know her, she says, from law school or from past cases. And she always shows up to court on time, she points out.

That helps explain why judges appoint Cameron to represent more poor defendants—by more than a hundred every year—than any other private lawyer in Detroit’s felony court system, making her the highest-paid attorney doing such work. In the past five years, she has taken 3,802 cases, including 1,787 new felonies, according to data from Michigan’s Third Judicial Circuit Court. That’s more than one felony case every workday—excluding the ones involving simple probation violations, which Cameron also takes hundreds of each year.

With such a caseload, it would be impossible for Cameron to put in the hours of research, witness questioning, and strategizing with her clients that legal experts agree are needed in such serious cases. Since 2014, for example, she has only visited one client in jail, according to court receipts.

Cameron emphasized in an interview that she doesn’t take shortcuts, and does what’s best for her clients. And in a specialty—indigent defense—that is among law’s least lucrative, she’s also trying to make a living. “I know it looks like I have a gazillion cases,” Cameron told The Marshall Project. But “this is not a socialist situation.”

“The money is not there,” she said, “unless you do some volume.”

In Detroit, as in most places in the U.S., the local public defender’s office can only handle a fraction of the low-income defendants who churn through the criminal justice system daily. To fill the gap, judges hire and pay individual private lawyers like Cameron to represent the poor on a case-by-case basis.

This gives attorneys an incentive to be too friendly with judges, to accept too many cases and then to try to resolve them too quickly, often at the expense of a thorough defense of their clients, according to a new report from the nonpartisan Sixth Amendment Center, a nonprofit that analyzes state public-defense systems.

After spending nearly a year in Detroit’s courtrooms, interviewing judges and lawyers, and gathering data, the center’s executive director David Carroll says the system there is “as bad as anything I have seen in my career”—including in the deepest parts of the Deep South, where funding for indigent defense is nonexistent and relationships between judges and attorneys are notoriously cozy.

For one, Carroll says, Detroit is the only city he knows of nationally where lawyers are paid by court event: $40 for an arraignment, $110 for a plea-deal hearing, $90 for a half-day of trial, and so on, no matter how long or involved each hearing is. This encourages attorneys to stay at the Murphy Hall of Justice accumulating quick court appearances rather than doing unpaid but crucial out-of-court work such as reviewing crime-scene footage, visiting their clients’ families, and discussing their options with them even if they’re in jail.

Also, in systems where judges decide how many cases each lawyer gets and how much they’ll get paid, attorneys may feel tempted to place the judges’ expectations over what their clients need. This can mean accepting quick plea deals rather than bringing cases to trial and otherwise challenging every prosecution through what the U.S. Supreme Court has called the crucible of adversarial testing.

Lawyers across the country perceive that judges frown upon painstaking defense work that slows down their court calendars, according to dozens of attorneys interviewed by The Marshall Project in states including California, Texas and Pennsylvania.

Over time, judges and attorneys engaged in this joint mass-processing of cases can become too familiar, Carroll and other experts say. According to one survey by the Texas state bar association, 35 percent of judges there admitted they consider whether the lawyers they appoint are political supporters of theirs, and 30 percent consider whether lawyers have contributed money to their re-election campaigns.

Read the story on The Marshall Project

Watch This How companies profit from prison labor

Perspective I was sexually assaulted, and I believe incarcerating rapists does not help victims like me

The following editorial was written by Stefanie Mundhenk Harrelson, a law student and aspiring public defender at Georgetown University. Her own experiences with sexual assault inspired her to study criminal law and restorative justice solutions. 

In 2015, I was raped at Baylor University by someone I knew and trusted. In the aftermath, I wanted two things: healing, and for him not to rape anyone else. I believed that the way to achieve both was to incarcerate him. I reported the rape to the Baylor Police Department, where an officer told me that “no sane DA” would pick up my case because I had no eyewitnesses and he claimed consent. 

A Title IX investigation took four months and was more traumatic than the rape itself. I was interrogated multiple times. Despite my list of 25 witnesses who could attest to changes in my behavior after the rape and a counselor who diagnosed me with post-traumatic stress disorder, he was found not responsible for the assault and I lost my appeals. I persuaded then-Baylor president Ken Starr to meet with me. He told me he believed a “miscarriage of justice” occurred, and that he’d do something; two months later, nothing had been done. After a blog post about my experience was shared widely, Starr—a former prosecutor, onetime defense attorney for Jeffrey Epstein, and the author of a report on the Clinton administration that included a salacious section on the former president’s sexual misconduct in the Monica Lewinsky scandal—left Baylor over the mishandling of multiple sexual assault complaints. 

Reporting my rape incurred hate mail from my fellow students and threats of expulsion from Baylor’s administration. And nothing ever happened to the person who raped me. Since then, I have become convinced that the criminal legal system is not the solution to sex offenses. Now, talking about restorative justice as a solution to rape instead of incarceration has resulted  in me being called “stupid,” “naive,” “malevolent,” and a “bitch.”

Perhaps this anger derives from the fact that despite the prevalence of sexual assault and prominence of the #MeToo movement, responses to and remedies for the problem of rape remain woefully inadequate. The criminal legal system is touted as the solution to violent crime, yet it routinely fails to provide redress to sexual assault victims. In 2017, the clearance rate for rape cases was only 34.5 percent. 

But increasing prosecution rates of those accused of rape does not heal victims or center their experiences because the criminal legal system, even when it operates as the carceral machine it’s designed to be, does not—indeed, cannot—provide the response victims need and deserve. Instead, it retraumatizes victims, makes communities less safe, and perpetuates rape culture.

Research demonstrates that many victims of sexual trauma heal primarily through regaining power and control over what occurs in the aftermath of an assault, including the ability to make choices about when, how, and with whom to share their story, and the ability to limit their exposure to situations that may cause flashbacks or retraumatization.

However, the criminal legal process removes power and control from victims and places  it in the hands of entities that represent the interests of the state instead of the person harmed. Victims who do not wish to testify may even be compelled to do so via a court order, under threat of imprisonment. If one were to design a system to inflict trauma on survivors it would look a lot like our current criminal legal system

If they do testify, victims do not control their story. Instead, it is extracted from them through a series of questions and answers by the prosecutor in furtherance of the state’s interests. Victims also submit to cross-examination by a defense attorney, which can be deeply destabilizing. It triggers flashbacks to the initial trauma, and can cause the survivor to question whether their trauma is even worthy of redress. 

But most cases don’t even make it to trial. The overwhelming majority of them are resolved by plea agreement. While this may spare victims from reliving trauma, it removes one of the strongest aspects of the criminal legal system: its adversarial nature. In a plea-driven system, the government’s burden of proof is largely removed resulting in over-sentencing, disparate treatment of poor or non-white populations and wrongful convictions. In this system, what we get is not justice but instead bartering between the state and the defense over statutory elements of an offense or the length of a prison sentence. 

Even if a victim runs the criminal legal gauntlet to a “successful” resolution, the system’s response is only retribution. Justice is defined as the number of years that a perpetrator spends in a  cage. But prison is not justice nor is it a place of rehabilitation, accountability, or redemption. Prison is the infliction of trauma onto a person who has committed harm. And when people convicted of sex offenses complete their prison terms, they often face a lifetime of punishment on our swollen sex offense registries. 

Read the story on The Appeal

What does a progressive judiciary look like?

The Equal Justice Society, American Constitution Society for Law & Policy, and California ChangeLawyers co-host a presentation and panel discussion for lawyers and law students exploring how progressives can develop a pipeline to the federal judiciary from law schools through clerkships and legal careers resulting in qualified progressive jurists appointed by the President and confirmed by the U.S. Senate.
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Register here >

Apply to this immigration litigation fund
The fund supports impact litigation efforts that challenge discriminatory, unlawful, and overly punitive immigration enforcement policies and practices at any stage of the enforcement trajectory from identification and apprehension, to detention and removal, as well as efforts to exclude certain immigrants from entering the country.

A project of Borealis Philanthropy. Apply here >

Work for Lawyers' Committee for Civil Rights 

Lawyers' Committee for Civil Rights is hiring a creative, passionate, attorney to join our team as the Thurgood Marshall Civil Rights Fellow. This two-year fellowship (with a possible extension) is designed for an attorney who is has practiced law for at least two years and has a demonstrated commitment to civil rights law.

Apply here >