Court To Prosecutors Who Sent Crime Victims Fake Subpoenas Threatening Them With Arrest: Pretty Sure Immunity Doesn't Cover That

from the DA:-pretty-sure-we-can-do-whatever-we-want-without-being-sued dept

A few years ago, The Lens exposed a super-shady tactic being used by Louisiana prosecutors. In an attempt to obtain a bit more compliance from witnesses in criminal cases, the Orleans Parish District Attorney's office started issuing fake subpoenas to witnesses that contained (an also-bogus) threat of imprisonment.

Rather than do it the legal way -- using office letterhead with no threat of incarceration -- the DA's office opted for a hard sell tactic that deliberately mislead citizens. The office claimed this was fine and that no one paid attention to the big, bold print promising jail time for not cooperating.

Two weeks after The Lens exposed the practice, the lawsuits began flowing in. Some lawsuits sought copies of the fake subpoenas the office had issued. Others sued over the practice itself. Crime victims, who had been falsely threatened with being treated like criminals themselves, sued the DA. The problem with this is prosecutors are generally given absolute immunity which makes them nearly impervious to civil lawsuits.

Fortunately, a Louisiana federal court allowed the lawsuit to proceed, finding (on very narrow grounds) absolute immunity couldn't be stretched to cover every bit of this nasty, deceitful scheme.

This Court finds that granting the Individual Defendants absolute immunity for allegations of systematic fraud that bypassed a court meant to check powerful prosecutors would not protect the proper functioning of a district attorney’s office. It would instead grant prosecutors a license to bypass the most basic legal checks on their authority. The law does not grant prosecutors such a license.

The DA's office is still hoping to shut the lawsuit down. It appealed the lower court's decision, but it's not finding any receptive judges at the higher level. Again, the DA is pitching absolute immunity -- a complete, judicially-approved whitewashing of all its sins. This pitch did not perform well at the oral arguments.

It was unclear when the three-judge panel of the 5th U.S. Circuit Court of Appeals would rule, but panel members sounded clearly skeptical as W. Raley Alford III, attorney for the prosecutors, made his case.

“Threat of incarceration with no valid premise?” Judge Jennifer Elrod said at one point during arguments. She later drew laughter from some in the audience when she said, “This argument is fascinating.”

“These are pretty serious assertions of authority they did not have,” said Judge Leslie Southwick, who heard arguments with Elrod and Judge Catharina Haynes.

Tough to retain immunity without a lawful premise. As for the DA, he's not willing to back down from his assertions the fake subpoenas were a net good for the community he inflicted them upon. DA Leon Cannizzaro was filled with compassion when he falsely threatened people with arrest for not complying with a fake subpoena.

Cannizzaro also has said the warrants are rarely used to arrest victims of domestic violence or sexual crimes.

What a guy. Material witness warrants were rarely used to further traumatize victims of trauma. For everyone else though, Cannizzaro was willing to jail crime victims until they talked.

The lead plaintiff said she was jailed after declining to pursue charges against a man who shattered her cellphone during a fight. Cannizzaro’s office responded to that part of the complaint by saying the woman was legally incarcerated after avoiding legitimate court-issued subpoenas.

Oh, okay. Given the office's routine deployment of fake subpoenas, it's a bit rich to accuse them of dodging the real ones. Also, someone refusing to press charges shouldn't be locked up until they decide to assist prosecutors in prosecuting a case the crime victim has no desire to see prosecuted.

Hopefully, the appeals court will uphold the lower court's decision and prevent the prosecutors from dodging accountability completely.

Filed Under: da, fake subpoenas, immunity, law enforcement, louisiana, orleans parish

Pennsylvania Legislators Quickly And Quietly Passed A Law That Strips Power From Its Reform-Minded DA

from the dirty-deeds-done-with-amazing-alacrity dept

The residents of Philadelphia elected Larry Krasner as their new DA in 2018. Krasner promised reforms to the criminal justice system. And he delivered. He secured 33 resignations from prosecutors and staff who didn't feel they could back his reforms. Shortly after this, he received the best possible (inadvertent) endorsement for his reform efforts, one that took the form of criticism from the head of the local police union.

Krasner eliminated cash bail for nonviolent defendants and made it clear he would not tolerate misconduct or abuse by police officers. More importantly, he did more than talk. Two officers were criminally charged for performing an illegal stop of a pedestrian and Krasner secured an indictment from a grand jury against a cop who shot an unarmed man in the back.

Local law enforcement isn't happy. Neither are many politicians. As Akela Lacy and Ryan Grim report for The Intercept, moves have been made to blunt Krasner's reform efforts.

Lawmakers in Pennsylvania have quietly muscled power away from reformist District Attorney Larry Krasner, passing new legislation giving authority to the state’s attorney general to prosecute certain firearms violations in Philadelphia — and nowhere else in the state. The provision will expire in two years, or just after Krasner’s first term ends.

The bill silently sped through the legislative process. It was referred to the Judiciary committee on June 11th and signed into law by the governor on July 2nd. That's amazing turn-time for a bureaucracy. It appears there are plenty of state legislators who prefer their prosecutors to be hard-nosed punishers, rather than actual arbiters of justice who realize the normal way of doing things (cash bail, stiff sentences, over-prosecution of minor crimes) contributes very little to anyone's idea of "justice."

Krasner's office has responded by pointing out the obvious.

In a statement, Krasner’s office said the move is an attempt by the legislature to undermine the will of voters who turned out in record numbers to elect him. “District Attorney Larry Krasner was elected by an overwhelming margin to push for badly needed criminal justice reforms in one of the most highly incarcerated big cities in the country, and he has serious concerns about what Act 58 does, the potential precedent it sets, and what it signifies for the justice movement at large,” said spokesperson Jane Roh, referencing the legislation the new law amends.

Unfortunately, sometimes you have to point out the obvious to put something on the record in black-and-white -- something the legislators who hastily shepherded this bill through the state legislature can't ignore. And there's more to it than a bunch of legislators yearning to stick it to the new reformer. It appears some legislators were completely unaware targeting Krasner was the goal of this legislation.

Multiple legislators made statements to The Intercept indicating the version the House approved did not match the Senate version, which was apparently surreptitiously changed to narrow the focus of the bill to Philadelphia and Krasner in particular. The version these legislators voted for gave smaller towns better access to attorney general resources. The final bill does none of that. All it does is wrest power away from Krasner and hand it to the state's AG.

Meanwhile, the AG's office is claiming this has nothing to do with Krasner -- whose power it preempts -- and everything to do with the city's gun violence problem. But this is bullshit because the problem the AG's office and supportive legislators have with Krasner's exercise of prosecutorial discretion is that he exercises it too often.

Supporters of the legislation say Philadelphia was singled out not because of Krasner, whose office would still technically have jurisdiction over the offenses, but because the city is home to the bulk of the state’s gun violence. “The Philadelphia DA continues to have the authority to prosecute these crimes, should he decide to start enforcing the law,” Republican Rep. Rob Kauffman, who sponsored the bill and worked directly with White to craft the amendment, wrote in a statement to The Intercept. “This wasn’t done statewide because prosecuting these gun offenses doesn’t seem to be a statewide issue.”

If Krasner passes on gun cases, the AG can now prosecute instead. Prosecutorial discretion means nothing when another prosecutor can push cases dropped by a city DA. The city has found one way to undermine a DA who actually changed things. I'm sure they'll keep experimenting until they can undo the good he's done.

Filed Under: criminal justice, criminal justice reform, da, larry krasner, pennsylvania, philadelphia, prosecutors

San Francisco DA's Office Whips Up Its Own Sunlight, Releases Data Sets On Arrests And Convictions

from the make-it-trend dept

A horrifically stupid and likely-illegal raid of a journalist's house notwithstanding, San Francisco's move towards greater law enforcement accountability and transparency has been monumental. Granted, this increase's momentousness is relative. Most cities do nothing at all to increase law enforcement accountability and transparency, so any forward momentum becomes noteworthy for even exisiting.

San Francisco recently became the first city in the nation to ban use of facial recognition tech by local government agencies. The tech's problematic history and freedom-threatening growing pains should have produced similar bans elsewhere in the country, but so far, it's only San Francisco. The fact that it did it before law enforcement even started using it deserves to be applauded. Legislators are rarely ahead of the tech adoption curve… if they're even being informed at all about local law enforcement's new tech toys by the agencies they're supposed to be overseeing.

The DA's office -- the same one that issued pretty harsh words about the SFPD's raid of journalist Bryan Carmody's home -- has released a first-of-its-kind transparency tool to keep the public apprised about arrests and convictions. This open-access recordkeeping is a significant improvement over the DA's office former record keeping process, which was apparently nonexistent.

When District Attorney George Gascon first took office he was “shocked” to discover that his staff could often not answer even basic questions about caseloads or prosecution and conviction rates.

“You’d ask people around the office how many cases we have…and depending on the day of the week and who you’d ask, you would get significantly different answers,” said Gascon. “The reality is that people would keep their own Excel sheets. Some were actually in handwriting.”

The discovery prompted the launch of “DA Stat,” a transparency initiative announced Wednesday that is intended to create greater transparency by aggregating nearly a decade’s worth of data into three new statistical dashboards that are updated on a monthly basis.

As DA Gascon points out, taxpayers spend millions funding his office, but have no idea whether that investment was paying off. The stats included here will at least assure taxpayers new laws are working the way they're supposed to. For example, a 2014 measure reduced personal drug possession from a felony to a misdemeanor. This has resulted in a 33% decline in felony drug prosecutions.

It also shows that, for better or worse, the DA's office is pretty good at what it does.

In 2018, the DA’s overall trial conviction rate was 83 percent, while trials averaged 11 days in length for a total of 266 defendants.

What isn't factored into that 83% success rate is how many of those convictions were the result of plea deals. Without this number, it's tough to tell whether the office is loaded with prosecutors that only bring solid cases, or a bunch of canny salespeople able to talk defendants into giving up rather than exercising their right to a fair trial.

The good news is that factor won't be ignored. The DA's office plans to add plea numbers as soon as it can obtain reliable data from the court system, which seems not nearly as interested in participating in the new transparency.

There's a lot of data here for the public to review and make use of. The DA's office is also working with the DataSF program and hopes to publish its data sets in full by the end of 2019. Until then, members of the public can examine what's been released and judge for itself whether the office is earning its keep. And that puts them miles ahead of residents of almost every other city in the United States.

Filed Under: da, data, george gascon, san francisco, transparency

FBI, DA's Office Open Investigation Of Fatal Houston PD Drug Raid

from the this-is-not-an-anomaly dept

The Houston Police Department has a huge problem. A recent no-knock drug raid ended with two "suspects" killed and four officers wounded. The PD says no-knock entrances are safer for officers, not that you'd draw that conclusion from this raid.

The problem the PD has is its drug warriors are dirty. The raid was predicated on a tip from a confidential informant who doesn't appear to exist. The warrant contained sworn statements about a heroin purchase that never happened and a large quantity of heroin packaged for sale that was not among the things seized from the dead couple's residence. The heroin central to the raid appears to have been taken from the console of an officer's squad car and run to the lab for some very unnecessary testing.

Houston police officer Gerald Goines is the person behind this completely avoidable chain of events. After initially backing his officers, Police Chief Art Acevedo has reversed course in the face of contrary evidence he's unable to ignore. His initial defense of officers who participated in a drug raid that only turned up personal use amounts of cocaine and marijuana was perhaps understandable, given his position. But it went against the image he'd made for himself as a reformer -- someone who would clean up the department and repair its reputation.

A leaked recording of Acevedo speaking to officers after the killing of an unarmed, mentally ill man seemed to make it clear there was zero tolerance for the usual cop bullshit. Acevedo criticized his officers for needlessly escalating interactions, bullying citizens for failing to show the respect officers feel is owed to them, and teaming up on post-incident paperwork to ensure most bad deeds went unpunished.

But in the three years since that recording leaked, it appears little has changed. Officer Goines' willingness to fabricate a story to engage in a no-knock drug raid -- a narrative that included a nonexistent informant and drugs not purchased from the raided residence -- shows he had little worry of being outed by other officers, much less criticized for his lawless behavior. Here's how defense lawyer Mark Bennett phrased it after it was discovered Goines used a fictional informant and drugs from his own vehicle to craft a search warrant:

If you can't read/see the tweet, it says:

This doesn't happen if the cops don't feel safe doing it.
They don't feel safe doing it if there are honest cops around.
They always feel safe doing it.

Incidents like these aren't isolated. It's not a rare bad apple. You don't get to this point if you're surrounded by good cops. You get to this point because no one cares about smaller violations of trust or bent rules. The cops who get caught are the ones who have everything come off the rails at once. That happened to Goines: his drug raid produced death and injuries, resulting in a ton of public scrutiny and whole lot of questions Goines and the officers that enabled him aren't going to be able to answer satisfactorily.

And there will be questions. The FBI has announced it will be investigating the fatal drug raid. If Goines doesn't want to go to jail for lying to federal agents, he's going to have to provide truthful answers that will possibly see him jailed for other charges.

There's also a chance a whole lot of lawsuits will be filed against Goines and the Houston PD in the near future. The Harris County District Attorney says it's going to be looking into every criminal investigation Goines touched during his years as a law enforcement officer.

The Harris County District Attorney's Office has launched a review of more than 1,400 criminal cases spanning Houston Police Officer Gerald Goines' 34-year career.

Twenty-seven of those cases are active.

“Our duty is to see that justice is done in every case,” Harris County District Attorney Kim Ogg said. “Although the criminal investigation of Officer Goines is ongoing, we have an immediate ethical obligation to notify defendants and their lawyers in Goines' other cases to give them an opportunity to independently review any potential defenses."

One case may have already been dismissed simply because Officer Goines was present during the arrest. His fellow officers, who were unwilling to step up and report Goines for previous misconduct, will now see their work undone as the DA's office makes it way through Goines' three decade paper trail. Current prosecutions are likely to end up dismissed and any ongoing investigations he was involved in will probably be put on hold. Any one of the 1,400 cases being looked at could result in litigation that could drag his fellow officers into court to defend themselves against civil rights violation allegations.

Does this mean everything Goines did was illegal? Of course not, but the ease with which he fabricated a narrative to support a deadly drug raid suggests he's been coloring outside the lines for a long time and receiving zero pushback or criticism for doing so.

Filed Under: art acevedo, da, drug raid, fbi, gerald goines, houston, police