Wednesday October 3, 2018

#ChangeLawyer Meet the lawyer fighting government surveillance of Black Lives Matter

Civil Rights lawyer Brandi Collins was only 12 years old when she was forced to reckon with the destructive impact of surveillance on black people. It hit her while her mother’s first husband, Chester Evans, was painting her portrait at her childhood home on the Southside of Chicago.

“While he was painting me, I asked why he had been sent to jail,” Collins told me during a recent conversation in her office in Lower Manhattan. “He said, ‘The government put me there, baby girl… Because when they can’t kill you, they aim for your soul instead.’”

Before serving time for murder, Evans had been a member of Chicago’s Blackstone Rangers in the ‘70s. While it might have started as a small-time street gang, the divisive grass-roots group blossomed into a powerful pro-black force in Chicago that provided services and community outreach to its neglected community. But regardless of the group’s legitimate efforts, the FBI labeled every one of the Rangers’ 3,000-plus members as dangerous criminals and subjected young blacks like Evans to COINTELPRO, a counterintelligence program that consisted of surveillance, infiltration, and disruption.

When Evans told Collins that he believed this illegal law enforcement program led to his incarceration and derailed his life and the positive work of the Rangers, it stuck with her and influenced her later in life. Collins became a Senior Campaign Director at the country’s largest online racial justice organization, Color of Change, in 2014. Around the same time, Black Lives Matter was coalescing into a full-fledged movement. During the unrest in Ferguson around the police killing of Michael Brown, Collins heard paranoid and fear-filled anecdotes from many of the black activists who were doing work on the ground.

Collins’ friends told her that “law enforcement would intimidate activist by picking them up and driving them to another location. And they’d refer to activists by their social media handles as if they already knew who they were — even if those activists weren’t speaking at a rally or identifying themselves as a leader.”

And so began a coordinated effort between a number of civil rights organizations like CCR, journalists at Muckrack, and legal experts to reveal the extent to which the government was targeting black activists who were simply exercising their right to free speech.

Under Collins’s direction, after several years of FOIAs, court dates, and research, Color of Change has been able to acquire tens of thousands of documents.

One of the biggest takeaways is that during the Trump administration the FBI invented a “black identity extremist” catchall category that is so broad, activists fear it could be used to criminalize anyone who advocates on behalf of black people.

Most recently, Color of Change and the Center for Constitutional Rights have released internal FBI documents that appear to verify the fears activist expressed to Collins during the unrest in Ferguson. In obainted email threads, there are discussions of stakeouts, details about the travel plans of protestors, dossiers on individual activists, and what appears to be information about the use of informants. Nowhere in these documents, however, is there talk of direct threats of violence by these activist that could justify the surveillance and disruption levied against them.

OUTLINE: You learned about surveillance when you were a little girl. But when did you first see it in your own life?
Growing up in a black household, you hear the term COINTELPRO being thrown around before you fully understanding what it means. But when I finally understood the depths of surveillance on black people, I was probably older than I should have been, because I just thought it was something in the past.

I know about the man in Dallas who spent five months in prison just for being what the FBI designated as a “Black Identity Extremist.” Do you think anyone else has been charged due to that designation?
I suspect yes. But we won’t hear about it as much. Because of the blowback that came from Dallas, you might not see prosecutors charge someone under BIE again. But they’ll certainly use it as a framework to track and target people until that person — just like they did to my sister’s father.

Do you worry that you are being surveilled?
I know I am being surveilled. For awhile, I started collecting the notifications I got when my bags would be searched during air travel. At one point, I had like 40 of them. It was far too often to be random. But I work at an organization that gives me a layer of protection and privilege while I do this work.

How is the behavior of black activists changing under the weight of the surveillance?
People are retreating. People are leaving the movement. There is a lot of burn out. They’re spending a lot of extra money to avoid being tracked, like booking their plane tickets on the same day that they plan to fly. People just feel tired I think, particularly since this administration has come in. It feels like there is a war going on and you can’t go through a war and not have PTSD. I fear that if the surveillance, stalker state keep it up, our movement is going to get stalled, again.

Story by the Outline >

Perspective Don’t pretend the Kavanaugh facts are unknowable 

The following editorial was written by Caleb Mason, a former federal prosecutor, and a partner at Brown White & Osborn, a litigation firm in Los Angeles.

The strangest thing to me about Thursday’s Judiciary Committee hearing was that the veteran prosecutor Rachel Mitchell, retained by the Republicans to cross-examine Christine Blasey Ford, didn’t already have, and seemed uninterested in obtaining, a crucial piece of evidence that Ford referred to in her testimony.

Ford does not recall precisely what date Brett Kavanaugh allegedly assaulted her, but she testified that approximately six weeks afterward she saw Mark Judge—who she claims was in the room during the assault—working at the Potomac Village Safeway. “If we could find out when he worked there, then I could provide a more detailed timeline,” Ford said. That would be an important fact, indeed.

Mitchell has been prosecuting sexual-assault cases for two decades. She knows how to use determinable contextual facts to nail down a precise chronology about a witness’s narrative.

I’m a trial lawyer. I used to be a federal prosecutor, and now I do civil litigation and criminal defense. I spend my time trying to use the investigative and fact-finding tools of the legal system to resolve problems for people and companies that get in disputes. I, and thousands of others in my profession, make our living figuring out, methodically, who did what, when, where, how, and to whom, in cases where accounts are disputed, memories have faded, records have been lost, and witnesses don’t want to cooperate.

There’s nothing arcane or even particularly difficult about the investigatory steps the government could take to reach a reasonable factual conclusion about the Kavanaugh allegations. I simply cannot understand why the Judiciary Committee refuses to use the resources it has—namely, subpoena power, through which the committee can compel witnesses to testify and produce documents.

It’s common, moreover, for lawyers to investigate and litigate allegations of decades-old behavior. There’s nothing inherently unfair in a proceeding that seeks to uncover facts about such allegations.

My point is threefold: First, if an accusation is false, then it is possible to prove it false using the tools of investigation and litigation. It is nihilistic and undemocratic to throw up our hands and say “We’ll never know,” as Senator Lindsey Graham and others who should know better have been saying of the Kavanaugh allegations.

Second, while we put the burden of proof on the government in criminal prosecutions, there’s nothing unusual about turning the tables in a civil case, where a party is coming to the court seeking affirmative relief. You want a judicial declaration of factual innocence, and you want your arrest records expunged? Then it’s on you to conclusively rebut these factual allegations.

Finally, there’s nothing unusual about allegations of bad behavior causing problems for people seeking employment, housing, professional licenses, and so forth, regardless of whether the allegations led to a conviction. People face adverse professional and legal consequences from allegations of bad conduct in many contexts where there was never a conviction or a trial. 

It does a disservice to Ford, and also to Kavanaugh, who should welcome a full investigation given his categorical denials. Most troubling, it also undermines public confidence in the possibility that legal professionals can dispassionately piece together factual narratives about past events, in the face of conflicting memories and the passage of time. That confidence—the belief that the judicial process can work—is a pillar of modern civil society.

Story by the Atlantic >

More of This This man was robbed of his life by a wrongful conviction. He’s now free.

Larry McKee’s eyes lost their glimmer the second he stepped out of a car on a recent morning and recognized the Bronx corner where a street fight derailed his life more than 20 years ago.

Mr. McKee had returned to the corner in Morris Heights to make peace with his past, he said somberly, but most importantly to embrace his future. A laundromat had been replaced by a delicatessen, but other than that the corner retained the same bustling feel.

“This is where I was taken from,” he said, almost in a whisper. “It’s a hurt feeling, but I’ve got to move on.”
Mr. McKee spent two decades in prison for a murder he has long maintained he did not commit. Eight months ago, a state judge threw out his conviction on the recommendation of the Bronx district attorney’s office, which determined important evidence had never been given to the defense.

Ever since his release from the Adirondack Correctional Facility in Ray Brook, N.Y., Mr. McKee, now 47, has been learning to live in a very different world than the one he left in 1997.

A jury found Mr. McKee guilty of murder after a 16-year-old witness testified that he saw Mr. McKee shoot Theodore Vance, 29, after a fight on the corner, at 176th Street and University Avenue. 

Mr. McKee was released after a new witness came forward last year and gave a different description of the killer. The Bronx district attorney’s office, after a six-month investigation, also determined important grand jury testimony was never shared with the defense.

Mr. McKee’s lawyers argue the grand jury testimony alone would had been enough to clear him of the murder charge in the 1990s.

“He would have never gotten convicted if the jury heard the victim’s last words,” said one of the defense lawyers, Oscar Michelen. “Here the prosecutor intentionally withheld evidence that could have proven that Larry was innocent. There is no excuse.”

Mr. McKee said he never lost hope that he would get a new trial. After every legal setback, he studied court transcripts and wrote letters proclaiming his innocence to anyone who would read them.

Mr. McKee’s case remains a rarity in the Bronx. Unit investigators have received 153 review applications and have taken up 17. They have asked the convictions be vacated in only three cases, including Mr. McKee’s.

“They robbed me of a career, a life,” he said quietly. “What I wanted to do is over. You can’t fix that.”

A small circle of loved ones helped him to find a one-bedroom apartment near Yankee Stadium and to stay afloat financially until he can secure work. He has thought about getting a job in construction. For now, he is content with reconnecting with his two siblings and extended family members, and visiting the park with three nieces — ages 22, 10 and 3.

He relishes simple activities, like walking to his corner deli to buy a cup of coffee. He continues to learn what each icon is for on his iPhone. And he scratches his head when he sees people taking selfies on the street.

“I spend my days minding my own business,” he said. “I wake up. Go for a walk. I can do a lot of things I couldn’t do before. I couldn’t go and just look at Yankee Stadium. So I appreciate little things like that. My old life is over.”

Story by NY Times > 

Less of This Prosecutors are stoking fear about mass bailouts, but their arguments don’t add up

The following editorial was written by John Pfaff, professor of law at Fordham Law School.

Throughout October, the Robert F. Kennedy Human Rights foundation will be working to bail out hundreds of people from New York City’s jails.

Perhaps unsurprisingly, law enforcement officials quickly assailed the proposal.

But with an appointee of President Trump at the helm, the office has taken a quiet but decisive turn away from that mandate.

Such an aggressive response by law enforcement to what is ultimately a small-scale proposal is completely predictable. Their arguments, however, are deeply problematic.

Let’s just start with the fact that New York is one of four states in the country where prosecutors and judges cannot take a defendant’s likelihood of committing another crime into account when setting bail, which is intended solely to ensure appearance at trial.

There are two other conceptual problems with the prosecutors’ decision to stoke people’s fears of more offending. To start, all the people who the foundation will bail out were eligible for bail in the first place. Had each of them made bail at their arraignment and left the courtroom, one by one, over the course of weeks or months, no one would have said anything. It would have been the system working as it is designed to. So why is the release of a small number of them in a short window of time suddenly a cause for alarm? The most plausible explanation seems to be that each defendant making bail at arraignment was not actually the goal, that the purpose was to use unaffordable bail to ensure systematic confinement.

By talking about the harms to victims and witnesses but ignoring those faced by the people on Rikers and at Horizon—people who retain the presumption of innocence, though that should hardly matter when talking about treating people with basic human decency—the prosecutors are reinforcing the dangerous politics of punishment. Criminal justice decisions often operate under fear of the “Willie Horton Effect,” which means that any act of leniency is politically risky, since the person out on bail could commit a crime that gets sensationalized attention. Needlessly keeping someone locked up, meanwhile, remains relatively riskless for politicians, since the costs are borne by a population mostly out of sight and whose harms aren’t considered relevant in the first place.

Even if New York’s prosecutors ultimately do not impede the foundation’s efforts, their rhetoric is disappointing. Much of criminal justice reform is about making the general public think more carefully about the needless, preventable, and often counterproductive harms that the system creates, and the prosecutors’ reactive “what about public safety?!” proclamations directly undermine such efforts, and only serve to strengthen the public’s willingness to continue to cage women and teens.

Story by the Appeal > 

Less of This, Too She paid a lawyer to get her a green card. She got a deportation order instead.​

Edith Duran had always wanted to come to the US. At 17, she got a tourist visa and traveled from her hometown, Zacapa, Guatemala, to New York City. She was excited to see the things she’d only known through movies, like the World Trade Center and snowflakes.

​After arriving in the US in 2002, she decided to start a new life. She joined a church where she met her husband, and married him just shy of her 19th birthday. They found work — she cleaned homes and he did construction work — and their son, Alejandro, was born in 2009.

There was one last piece of the puzzle: She wanted legal immigration status.

A cousin recommended a lawyer. 

She met Leonard Hecht around February of 2014. He asked her a few questions: Had she been in the US continuously for 10 years? Yes. Did she have a child who is a US citizen? Yes. Well, she could apply for lawful permanent residency.

She told her husband the news, crying with joy, and cobbled together a decade of bills and tax filings that very night. She saw a future where she could go back to school and become a doctor, even if it meant graduating well into her forties or fifties.

She and Hecht worked together for four years. He helped her get a temporary work permit, a fingerprinting appointment, an interview with a immigration officer at the United States Citizenship and Immigration Services office, and hearings in immigration court.

She went into her final court hearing in June 2018. 

Her eyes were set on getting a green card.

Finally, it was time for the judge’s oral decision. He spoke up.

Duran, he said, should be deported.

Duran fell victim to a common and effective fraud that plays off the hopes and fears of vulnerable undocumented immigrants: the “10-year law,” a false promise that by virtue of living in the US illegally for a decade, an immigrant has a right to apply for legal permanent residency.

But, according to a new civil lawsuit in federal court, really what her lawyer was doing was stringing her along, draining her funds, and effectively duping her into coming out from the shadows and declaring her presence in the US to the very government agents most undocumented immigrants spend lifetimes avoiding. The lawyers, Leonard Hecht and his father, Thomas T. Hecht, both work at a law firm that Thomas founded in 1971.

That undocumented immigrants are preyed upon by unscrupulous people isn’t new. But today’s climate makes things worse.

Trump’s policies help perpetuate a cycle: As immigration policies become more restrictive and punitive, a lot of undocumented immigrants feel more pressure to seek out lawyers. “Whenever there is increased fear there’s also increased interest in trying to regulate one’s immigration status,” said Anne Schaufele, a former attorney with Ayuda, which provides legal advice and other services to vulnerable immigrant groups.

The Hechts are now being sued by 33 former clients, including Duran, who say they were sold the false dream of a green card and are now in danger of being deported.

Cases like Duran’s could have been put on hold indefinitely through a process called administrative closure. But Trump’s Justice Department has recently taken away this option from immigration judges and, additionally, is bringing thousands of frozen cases back to the courts.

Immigration judges have also been instructed to speed up their processes, which advocates say could lead to more deportations and has immigration judges worried that they will not have the time to be neutral arbiters and will instead become enforcers of Trump’s strict immigration policies.

“I feel very embarrassed and I’m so afraid,” said Duran. “But I don’t want more families in the same situation.”

Story by Buzzfeed News >

Podcast of the Week When they took my son

A 6-year-old child sleeps in a vacant office building, surrounded by strangers. An infant is taken from his breastfeeding mother. We examine the stories of two families separated at the U.S.-Mexico border and how what happened to them matches up with what the government said was supposed to happen.

Listen to Reveal Podcast >

Job Opportunity SF DA’s office hiring Assistant DA

California ChangeLawyers encourages progressive Brown, Black, and Queer lawyers to become reform prosecutors, to reform the criminal justice system from the inside out. 

Apply here >

Job Opportunity PANA San Diego hiring staff attorney

San Diego County’s refugee and muslim communities face ongoing and growing legal needs. PANA is hiring a full-time attorney to develop a legal program that will triage legal services for refugees and asylum seekers.

Apply here >

Mentors Wanted

The Youth Law Academy at Centro Legal de la Raza is currently recruiting attorney mentors for this academic year. YLA is a legal diversity pipeline program working to open the doors of the legal profession for the next generation of underrepresented attorneys

Mentorship application here >

Free for Students Law school admissions conference at Pepperdine​

This free event will provide attendees with a comprehensive overview of the law school application process. Panels consisting of law students and lawyers will share their pathways to law school and the legal profession and answer questions. Hosted by For People of Color, Inc.

October 20. RSVP here >

Free for Students How to become a United States Attorney

Informative discussion featuring Assistant United States Attorneys from the Criminal and Civil Divisions.

​October 16 from 12:15 to 1:15pm. United States Attorney’s Office, 300 North Los Angeles St - 7th Floor (Weidman Training Room)

RSVP to Julia Choe at julia.choe@usdoj.gov