Wednesday July 29, 2020

Say it Louder Mr. President, stay out of our cities

Marilyn J. Mosby is the state’s attorney for Baltimore City. Larry Krasner is the district attorney for Philadelphia.

Desperate times produce desperate measures. President Trump, sliding in the polls, flailing as covid-19 cases surge, has sought a distraction by sending federal law enforcement officers into Portland, Ore. Scarier to us than even the Orwellian sight of federal agents in military fatigues assaulting citizens and bundling them into unmarked vehicles is that Trump has spoken of sending federal agents to Baltimore and Philadelphia. We were elected to prosecute violations of the law in these cities. We strongly believe that the actions in Oregon are illegal. Should the president proceed with his plan in our cities, his agents will be prosecuted to the fullest extent of the law.

A spate of irrational federal actions on Trump’s behalf have played out in recent months. While many rightly mocked the faux indignation of Chad Wolf, the acting secretary of homeland security, as he toured walls of graffiti in Portland, the actions of the Department of Homeland Security were more serious. Peaceful protesters were assaulted, detained and taken in unmarked vehicles to undisclosed locations. The scenes were reminiscent of 1930s dictatorships.

Portland officials — including the mayor, who was among a group tear-gassed on Wednesday — have roundly criticized these actions. The state attorney general has sued the federal government, alleging that the Trump administration has violated the civil rights of Oregonians. The lawsuit criticizes federal agents’ heavy-handed tactics. One protester, whose statement is included in the lawsuit, said: “Without warning, men in green military fatigues and adorned with generic ‘police’ patches, jumped out of an unmarked minivan and approached me. I did not know whether the men were police or far-right extremists, who, in my experience, frequently don military-like outfits and harass left-leaning protesters in Portland. My first thought was to run. I made it about a half-block before I realized there would be no escape from them.”

We will not wait for a lawsuit to be filed. Should Trump send federal agents who engage in the same illegal vigilante activities, unlawfully assaulting and kidnapping people, they will face criminal charges from our offices. The authority of city officials to prosecute federal law enforcement officials is clear. While 28 U.S. Code § 1442 provides that federal law enforcement officers may remove such charges to federal court in limited circumstances, it does not stop the local prosecution. We do not believe that the agents in Portland came close to meeting the standard required to prevent local prosecution, and officers exhibiting such behavior in our cities are similarly unlikely to meet this threshold.

Read the story on Washington Post

Speaking Of… Federal agents arrested a lawyer mom without reading her rights

An Oregon lawyer says she was arrested by federal agents who refused to identify themselves or read her her rights during protests in Portland on Tuesday.

Attorney Jennifer Kristiansen, 37, was arrested after participating in a protest outside a federal courthouse in Portland, as city officials continued to demand the agents leave the area.

Kristiansen was at the protest as part of the "Wall of Moms," a group of mothers who are attempting to act as a human shield blocking officers from assaulting protesters participating in ongoing Black Lives Matter demonstrations against police brutality and racial injustice.

Kristiansen said that the agents who arrested her wore badges that read "Police DHS" but refused to provide any other identifying information. She later reportedly discovered that the agents were from the U.S. Marshals Service.

After being arrested, Kristiansen was criminally charged with assaulting an agent and failing to obey their orders, while also being issued an order to not return to the protest area. She pled not guilty to the charges, saying that an assault did take place but insisting she was the victim rather than the perpetrator.

Kristiansen said she was injured and left badly bruised when she was assaulted physically, and possibly sexually, by one of the agents arresting her. The arrest happened shortly after she placed her arm between a different agent and fellow protesters claims the agent was attacking with a baton.

Read the story on Newsweek

More of This Police answer to us. What will be do with that power?

Chesa Boudin is the San Francisco DA.

The failure of both Congress and state legislatures to respond to the murder of George Floyd with any meaningful action reminds us that our nation’s attempts at reform can often amount to nothing. We need to look elsewhere for reform — to local prosecutors.

As the police killings of Mr. Floyd, Breonna Taylor and Rayshard Brooks have demonstrated, the police typically don’t answer to the federal government or state legislatures; they are accountable to local prosecutors, who make decisions about if, when and how to charge officers. Demanding that prosecutors charge police officers who kill without justification is a crucial step, but it is only the beginning.

Local prosecutors must use the power and discretion afforded them to carry out sweeping reforms that will protect the public — especially Black communities — from police violence. Our system’s integrity depends on it.

We should start with the basics: Police officers are unlikely to be held accountable if the prosecutors investigating and potentially prosecuting them feel indebted to them. And police unions remain one of the most powerful sponsors of prosecutor elections nationwide. Together with three other elected and former district attorneys, I recently pledged to never accept endorsements or contributions from law enforcement unions, and called on the California State Bar and the American Bar Association to cure this conflict of interest by prohibiting prosecutors from taking money or support directly from police unions.

We know what can happen when prosecutors get too cozy with the police. The refusal to prosecute the police after the deaths of Stephon Clark in Sacramento in 2018 and Sean Monterrosa in Vallejo, Calif., in June are just two local examples of the system’s failure. Similarly, it took intense public pressure before prosecutors brought tepid, third-degree murder charges against Derek Chauvin — later amended to second-degree murder — who kept his knee on George Floyd’s neck for nearly nine minutes, even though the case had compelling cellphone footage.

Read the story on NY Times

More of This The bar exam is a relic of a racist past. The pandemic is proving that.

Pilar Margarita Hernández Escontrías is a co-founder of United for Diploma Privilege and a graduate of the University of California, Irvine School of Law.

Twice a year, recent law school graduates nationwide prepare for the bar examination, the biggest test of would-be attorneys’ lives. “Bar prep,” the shorthand for the two months of exhausting 12-hour days of study, costs upward of $3,000 and culminates in thousands of applicants filing into convention and conference centers in major cities for two days.

The spread of COVID-19 has made this traditional arrangement unsafe and, frankly, unethical. Nonetheless, 23 states are still opting for in-person bar exams next week, placing applicants at risk for contracting COVID-19 while mandating that applicants sign liability waivers releasing state bars of all legal culpability should the applicant become ill as a result of an in-person exam. The sad reality is that many will need to risk their lives to take an exam that some have called “an unpredictable and unacceptable impediment for accessibility to the legal profession” that does nothing to protect the public.

Recognizing the impossible situation in which many bar applicants find themselves, I co-founded United for Diploma Privilege, a grassroots coalition of recent law graduates, lawyers, law professors, and legislators pushing for attorney licensure reform that would do away with the bar exam, instead granting automatic licensure upon graduation from law school and completion of moral character and fitness applications. This path to licensure is called diploma privilege. What began in California in March quickly spread, and we are now a nationwide movement with advocacy teams in almost 40 states.

As a vocal advocate for diploma privilege, I often get asked how the profession can maintain minimum standards of competency if we were to do away with the bar exam. Envisioning what the legal profession would look like without the exam generates such collective anxiety that it’s almost as if we, as a profession, are uncertain as to what our identities would be without a standardized test.

Last year, the American Bar Association reported that 85 percent of attorneys nationwide are white, 5 percent are Black, 5 percent are Latinx, 2 percent are Asian, and 1 percent are Native American. The abysmal numbers reflect a grim reality: There exist numerous structural barriers to entry into the legal profession if you are not white, and the bar exam is one of them.

Lawyers have stopped asking themselves why such an exam was necessary in the first place. It’s time to see the bar exam for what it truly is: the relic of a racist club.

Read the story on Slate

Less of This In the age of Black Lives Matter, 95% of prosecutors and judges are white

While the nation continues to reverberate from the growing movement to stop the widespread victimization of Black people by the police, less attention is being paid to two other prongs of the criminal legal system: prosecutors, and the trial judges who are supposed to safeguard the rights of the accused, ensure a fair trial takes place, and act as a check against excesses by police and prosecutors alike.

Two nationwide studies of the racial demographics of the nation’s state judges and prosecutors in recent years revealed glaring disparities between the people who make criminal justice decisions and the communities they are supposed to serve. In a country where just over 13 percent of residents are Black—and 39 percent are people of color—in 2015, 95 percent of elected prosecutors were white. Among state trial judges, who are present in every part of the criminal justice process from signing warrants to determining parole terms, as of 2016, fewer than 2 in 10 state trial judges were people of color. In 16 states, fewer than 1 state judge in 10 was a person of color.

The lack of representation of Black and other people of color on state courts undermines the courts’ legitimacy, said Vanderbilt University Law School Professor Tracey George, co-author of the 2016 “Gavel Gap” study funded by the American Constitution Society for Law and Policy. “The representation problem,” she told The Appeal, undermines both the courts’ perception of legitimacy and “its real legitimacy when it doesn’t reflect the communities that it serves.”

“This isn’t something that is occurring because George Floyd was murdered by police. This has been happening since the foundation” of the criminal legal system, Adam Foss, the founder and executive director of Prosecutor Impact and a former Boston-area assistant district attorney, told The Appeal. The racial disparity in state trial courts’ makeup also is a “sign that there’s some problem in the selection method,” which is depriving people from underrepresented groups from becoming judges, George said.

Read the story on The Appeal

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