Lying NYPD Officers Cost Prosecutors Sixty More Criminal Convictions

from the propping-up-the-Drug-War-with-bogus-busts dept

Fighting crimes is easier when it's not being done by criminals. A bunch of cases are being tossed in New York City because misbehaving NYPD officers left their dirty handprints all over them.

Queens County District Attorney Melinda Katz is asking a state supreme court judge to vacate the cases of 60 people which their cases were based on the police work of three former NYPD detectives who were later convicted of various crimes.

This adds to the NYPD's list of self-inflicted wounds. Earlier this year, prosecutors tossed nearly 100 cases tainted by the presence of narcotics detective Joseph Franco. Franco was charged with 26 criminal counts -- including perjury and official misconduct -- in 2019. The dismissals followed another investigation which showed Franco had lied about drug buys to secure warrants and perform arrests. Some arrestees were able to get their cases dismissed by obtaining security camera footage showing alleged drug purchases had never occurred.

One lying cop and nearly 100 dismissals. Now this: three bad cops and 60 dismissals. And these cops have some pretty impressive rap sheets.

Former NYPD Detective Kevin Desormeau was convicted of perjury after lying about witnessing a drug sale that videotaped evidence showed did not take place. He also pleaded guilty after he fabricated the facts of a gun possession arrest. Desormeau was terminated by the NYPD and there are 34 cases the district attorney says should be dismissed based on his role as the essential witness.

Former NYPD Detective Sasha Cordoba pled guilty in Manhattan to perjury relating to her fabricating the facts of a gun possession arrest. Cordoba was terminated by the NYPD. 20 cases will be requested to be dismissed based on Cordoba’s role as the essential witness.

The third cop involved in these dismissals at least wasn't in the perjury business. No, he was into darker stuff.

As alleged in court filings by the government, in February 2008, Sandino arrested a woman identified in the Information as Jane Doe 1 (“the victim”) and her boyfriend on drug distribution charges following the execution of a search warrant at their apartment. During the arrest, Sandino forced the victim to undress in front of him in the bedroom of the apartment. Later, at the precinct, Sandino told the victim that she was going to jail and would lose her children unless she had sex with him. When the victim went to the restroom at the precinct, Sandino followed her inside and made her perform oral sex. Upon the victim’s release from custody, Sandino told her that he expected her to have sex with him at a later time. Thereafter, Sandino called the victim on numerous occasions. The victim subsequently reported Sandino’s misconduct to NYPD’s Internal Affairs Bureau, which began an investigation. In March 2008, Sandino was removed from active duty.

As further alleged in the government’s court filings, Sandino engaged in similar misconduct in the summer of 2006 in connection with the arrest of another drug dealer. On that occasion, Sandino coerced a female cousin of the drug dealer, identified in the Information as Jane Doe 2, to engage in sex acts with him based on threats he made concerning the lengthy prison sentence faced by the drug dealer.

More recently, in September 2009, Sandino allegedly engaged in lewd sexual behavior in front of a female arrestee and then forced her to raise her shirt to expose her upper body.

Sandino was fired by the NYPD in 2011, one year after he racked up this federal indictment. Somehow, he's still involved with six convictions now being tossed out because of his role as a witness. That means six people have spent a long time in jail due to this bad cop's testimony that was apparently given more than a decade ago.

It's good to see all three cops are listed as "former." But it is concerning that someone like Sandino managed to remain a law enforcement officer for thirteen years when it was likely apparent long before his indictment that he was abusing his power. Meanwhile, Detective Desormeau's misconduct has affected cases dating as far back as 2014, which potentially means someone lost most of a decade as the result of a bad cop's statements in court.

The repeal of a state law that effectively denied access to police misconduct records for decades means those overseeing the NYPD -- which includes city prosecutors that frequently rely on their testimony -- can no longer effectively pretend the department isn't home to a number of bad apples. Expect more of this in the near future as this long-delayed transparency forces city officials and, hopefully, the NYPD itself, to take officer misconduct more seriously. But while we wait for a police accountability ideal that may never arrive, we can at least take some satisfaction in these reversals of unjustly obtained criminal court "wins."

Filed Under: lying, lying police, nypd

Top Court In Massachusetts Says Prosecutors Must Provide Info On Bad Cops To Criminal Defendants

from the finally,-an-obligation-that's-actually-an-obligation dept

Cops lie. Cops lie enough there's a term for it: testilying. Honest prosecutors don't want lying cops on the stand dirtying up their case with their impeachable testimony. Unfortunately, police unions are powerful enough to thwart this small bit of accountability. "Brady lists" are compiled by prosecutors. They contain the names of officers whose track record for telling the truth is so terrible prosecutors don't want to have to rely on their... shall we say... misstatements in court.

Unfortunately, these lists are often closely-guarded secrets. Judges aren't made aware of officers' penchant for lying. Neither are defendants in many cases. But they're called "Brady" lists because they're supposed to be disclosed to defendants. The "Brady" refers to Brady v. Maryland, where it was decided prosecutors are obligated to turn over possibly exculpatory information to defendants to ensure their right to a fair trial. This includes anything that might indicate the cop offering testimony might not be telling the truth.

The Massachusetts Supreme Judicial Court has ruled [PDF] prosecutors have an obligation to inform defendants of officers who have made their "Brady" lists. Two cops who made false statements in a use-of-force report were granted immunity for their testimony in front of a grand jury. The district attorney prosecuting a different criminal case handed this information over to the defendant. The cops challenged this move, claiming their grand jury immunity should have prevented this exculpatory information from being given to the defendant and discussed in open court. (h/t Matthew Segal)

The cops argued there's no constitutional duty to disclose this information (under the US Constitution or the Commonwealth's) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed. The Supreme Judicial Court says that argument is wrong under both Constitutions.

First, prosecutors have more than a constitutional duty to disclose exculpatory information; they also have a broad duty under Mass. R. Crim. P. 14 (a)(1)(iii) to disclose "[a]ny facts of an exculpatory nature." This duty is not limited to information so important that its disclosure would create a reasonable doubt that otherwise would not exist; it includes all information that would "tend to" indicate that the defendant might not be guilty or "tend to" show that a lesser conviction or sentence would be appropriate.

[...]

Second, even if prosecutors had only their constitutional obligation to disclose, and not the broad duty under our rules, we would not want prosecutors to withhold exculpatory information if they thought they could do so without crossing the line into a violation of the defendant's right to a fair trial.

The acceptable standard under the Constitution is not "see what you can get away with." This is an obligation, not a nicety to be deployed at the prosecutor's discretion.

A prosecutor should not attempt to determine how much exculpatory information can be withheld without violating a defendant's right to a fair trial. Rather, once the information is determined to be exculpatory, it should be disclosed -- period. And where a prosecutor is uncertain whether information is exculpatory, the prosecutor should err on the side of caution and disclose it.

In this case, the information was definitely of the possibly exculpatory variety. Lying cops who've admitted before a grand jury they falsified reports should definitely be considered impeachable witnesses. Whether or not the information is determined admissible at trial is beside the point.

[T]he ultimate admissibility of the information is not determinative of the prosecutor's Brady obligation to disclose it. Where the information, as here, demonstrates that a potential police witness lied to conceal a fellow officer's unlawful use of excessive force or lied about a defendant's conduct and thereby allowed a false or inflated criminal charge to be prosecuted, disclosing such information may cause defense counsel, or his or her investigator, to probe more deeply into the prior statements and conduct of the officer to determine whether the officer might again have lied to conceal the misconduct of a fellow police officer or to fabricate or exaggerate the criminal conduct of the accused.

The cops also argued their immunity from prosecution during their grand jury testimony should shield them from any adverse consequences. Wrong again, says the court. The immunity only covers prosecution for the admitted crimes. It is not a shield against reputational damage that may result from this information being made public or handed over to defendants.

An immunized witness, like others who are not immunized, may prefer that the testimony not be disseminated by the prosecutor, especially if it would reveal the witness's dirty deeds, but that preference does not affect whether the information is exculpatory or whether it should be furnished to other defendants. Once disclosed, the immunized testimony may be used to impeach the immunized witness, provided that the testimony is not being used against the witness in a criminal or civil prosecution other than for perjury. In sum, a prosecutor's obligation to disclose exculpatory information is the same for immunized testimony as for all other testimony. There is no higher Brady standard applied for a prosecutor to disclose immunized testimony.

The Court wraps this up by laying down the law: this is Brady info and it needs to be disclosed to defendants. The SJC is not fucking around.

[W]e conclude, as did the district attorney, that the prosecutors here have a Brady obligation to disclose the exculpatory information at issue to unrelated criminal defendants in cases where a petitioner is a potential witness or prepared a report in the criminal investigation. That obligation remains even though that information was obtained in grand jury testimony compelled by an immunity order. And the district attorney may fulfill that obligation without prior judicial approval; a judge's order is needed only for issuance of a protective order limiting the dissemination of grand jury information.

More broadly, we conclude that where a prosecutor determines from information in his or her possession that a police officer lied to conceal the unlawful use of excessive force, whether by him or herself or another officer, or lied about a defendant's conduct and thereby allowed a false or inflated criminal charge to be prosecuted, the prosecutor's obligation to disclose exculpatory information requires that the information be disclosed to defense counsel in any criminal case where the officer is a potential witness or prepared a report in the criminal investigation.

That's the standard in Massachusetts. And bad cops are on notice there's pretty much nothing they can do to escape the consequences of their own actions. This is as it should be. Now, if the courts could just make sure prosecutors and police departments are actually compiling Brady lists, we'd be set. At least in this Commonwealth.

Filed Under: brady lists, defendants, lying, massachusetts, police, prosecutors

Court Tells Lying Cops That Someone Asserting Their Rights Isn't 'Reasonably Suspicious'

from the but-for-video dept

A couple of lying cops who couldn't perform a traffic stop without violating the driver's rights have just seen their illegally-obtained evidence tossed and their successful drug bust busted. The Louisiana Second Circuit Court of Appeal not only finds the officers untrustworthy but also points out there's nothing reasonably suspicious about someone's invocation of their rights.

The traffic stop that resulted in the discovery of methamphetamines was clearly pretextual. There's nothing legally wrong with using traffic stops to engage in other investigations, but officers must have the reasonable suspicion to navigate away from the initial purpose of the stop. The Supreme Court's Rodriguez decision removed a lot of the leeway law enforcement officers have exploited for years.

This stop began with the accusation that the car's driver, Michael Glen Robinson, was failing to stay in his own lane. Robinson's driving was recorded by the officer's dash cam, along with the entire traffic stop. The court says it's not clear Robinson actually violated the law. From the decision [PDF]:

On two occasions, Robinson’s truck can be seen to drift toward the boundary of his lane, perhaps so far as his vehicle’s tires touching the lines marking the boundaries of the lane within less than a minute. The video does not definitively establish that Robinson crossed the boundary line.

The appeals court isn't willing to overturn the stop itself. But it has nothing good to say about the officers whose testimony was repeatedly contradicted by their dashcam recordings.

It all starts here, with the usual cop claim that the person they stopped seemed nervous.

Officer Lavrinc testified that, at this point, he tried to engage Robinson in conversation to ascertain if Robinson was intoxicated. Officer Lavrinc testified that Robinson’s “mannerisms and his demeanor were a little more intensified than that of somebody on most of the traffic stops of minor traffic violations,” and that Robinson started to get a little agitated and his carotid artery was pulsing “extremely hard.” He also stated that Robinson was sweating, his hands were shaking, and that the more he (Officer Lavrinc) spoke with Robinson, the more irritated and agitated Robinson became.

But that testimony is contradicted by the officers' recordings:

Officer Lavrinc then asked where they were headed to, and Robinson replied “to visit a friend.” Robinson then indicated he was not able to produce his current insurance card, and asked Officer Lavrinc, “What did I do wrong?” Officer Lavrinc explained that he observed Robinson “riding the line” a couple of times and asked whether Robinson had been drinking, which Robinson denied, stating “No, sir.” Thus far in the interaction, Robinson’s voice did not sound agitated or nervous.

[...]

When other officers arrived as backup, Officer Lavrinc returned to Robinson’s truck, and had Robinson step out of his truck and put his hands on it. Officer Lavrinc conducted a Terry frisk of Robinson, and Robinson asked what the officer was doing. Robinson’s voice did not sound agitated, irritated, or nervous at any point thus far either.

[...]

The video then shows Robinson leaning against the hood of Officer Lavrinc’s patrol unit and talking with Officer Lavrinc. Robinson asked “What’s the problem?” Again, his tone of voice did not sound particularly nervous or irritated.

Robinson was also calm when he exercised his right to be free of unreasonable searches.

After explaining why he had Robinson get out of his truck, Officer Lavrinc asked whether there were any “guns, knives, bombs, [or] open containers” in the truck, which Robinson denied. Officer Lavrinc retorted, “So then you don’t mind if I take a look in the truck?” Robinson denied consent to search the vehicle, stating “You don’t need to take a look in the truck.” Again, at this point Robinson still did not seem particularly agitated or nervous.

And there are more lies:

According to Officer Lavrinc’s testimony, around this time, he conducted a standard horizontal gaze nystagmus (“HGN”) test on Robinson, seeking to detect signs of intoxication. Essentially, Officer Lavrinc testified that an HGN test is conducted by holding an object in front of the subject’s face and moving it back and forth horizontally, and that he conducted the test on Robinson using a pen tipped with a blue light. Officer Lavrinc detected no indication that Robinson was intoxicated. Contrary to this testimony, Officer Lavrinc never did an HGN field sobriety test on Robinson on camera, and Robinson never left the view of the dashboard camera video from Officer Lavrinc’s patrol unit at any relevant time.

And the search Robinson never consented to occurred anyway.

Meanwhile, Officer Hackett, who had initially walked over with Officer Shane Griffith to Robinson’s location, went to the passenger side window of Robinson’s truck and leaned his head through the window and reached in with his arm. He leaned in far enough that the sole of one of his feet came off the ground as he did so, and the illuminated flashlight in his hand can be seen well inside the truck.

The officer said this was "plain view" when it clearly wasn't. He was far inside the vehicle when he saw the baggie. The baggie held Robinson's insurance card. Officer Lavrinc apparently felt this was the probable cause he needed to perform a more thorough search of the truck.

Without first asking Officer Hackett whether he had already grabbed the bag and looked at it, Officer Lavrinc entered Robinson’s truck through the driver’s side door and, after searching for a short amount of time, found marijuana in the center console.

The court says none of these justifications add up.

Moments later, Officer Lavrinc returned from searching Robinson’s truck and announced that he had found marijuana. He placed Robinson and Jones under arrest, and then the officers further searched the truck and discovered the methamphetamine. However, the plastic baggie containing Robinson’s insurance card was not seized or placed in evidence, despite the fact that the officers attempted to justify the protective search in part based on the presence of the baggie in Robinson’s truck. Thus, Officer Hackett must have known that it did not contain drugs prior to Officer Lavrinc’s protective search.

The court says neither officer is credible. Their testimony is contradicted several times by the recording.

Officer Lavrinc’s testimony that he performed an HGN field sobriety test on Robinson irreconcilably contradicts the video/audio recording from his dash camera and body microphone. His testimony regarding the actions he took after Officer Hackett informed him about the plastic baggie also appears to contradict the dash camera video. Additionally, his testimony regarding his suspicion that there were drugs and weapons in the vehicle is internally inconsistent and implausible on its face.

Lavrinc's testimony was about 90% lies and 10% logical inconsistencies.

In summary, Officer Lavrinc testified that he suspected Robinson was intoxicated, and that he believed he had reasonable suspicion that there were drugs and weapons in Robinson’s truck. Nonetheless, Officer Lavrinc testified that he was planning to release Robinson and Jones to go free in Robinson’s truck – but only after he searched the truck for a weapon to ensure the officers’ safety upon releasing Robinson and Jones. This is inconsistent, illogical and implausible. If Officer Lavrinc believed he had reasonable suspicion that Robinson was driving while intoxicated and carrying illegal drugs, why would he plan to release Robinson (to drive away in his truck) without conducting a dog sniff or a field sobriety test?

And Officer Hackett is no better. His "plain view" assertions are contradicted by his actions and statements, which were all caught on camera.

In the audio recording integrated with his police vehicle’s dashboard camera video, Officer Hackett admitted that he reached in the truck and grabbed the clear plastic bag containing Robinson’s insurance or vehicle registration to check and see if it contained illegal drugs.

This in itself constituted a warrantless search of Robinson’s truck, not a “plain view look” as Officer Hackett testified. Officer Hackett even went as far as attesting specifically that he was not searching the vehicle at this point. Finally, in glaring contradiction to his statement recorded live at the scene of the incident, he also testified that he did not touch the plastic baggie.

Cue benchslap -- one that hits Officer Hackett hard enough the trial court can feel it.

Based on this testimony in direct contradiction to the video/audio recordings from the incident, we conclude that Officer Hackett’s testimony is incredible in its entirety. The trial court committed manifest error to the extent it relied on Officer Hackett’s testimony in denying the motion to suppress.

Finally, the court says someone's insistence that their rights be respected cannot be viewed as "suspicious."

In light of these facts, and the officers' lack of credibility, these characterizations provide no support for a finding of reasonable suspicion. Indeed, La. C.Cr.P. art. 218.1, supra, commands police officers, upon detaining a citizen in connection with the investigation or commission of any offense, to fully advise the detained citizen of the reason for the detention. It is a corollary that a citizen has the right to ask for a full explanation of why he is being detained. As a matter of law, the officers’ characterizations of Robinson’s requests for this explanation cannot serve as a basis for reasonable suspicion. The same is true of Robinson’s refusal to consent to a search of his truck, and his objection to Officer Hackett’s unconstitutional search of the truck.

And with that, all the evidence is gone. The suppression motion is granted and these two lying cops are left empty-handed. One would hope this would encourage them to be better cops and respect the rights of citizens. But it will probably only deter them from activating their cameras during roadside fishing expeditions.

Filed Under: invoking rights, lying, police, reasonable suspicion

Bad Ideas: Raising The Arbitrary Age Of Internet Service 'Consent' To 16

from the want-to-piss-off-high-schoolers? dept

We all know various ideas for "protecting privacy online" are floating around Congress, but must all of them be so incredibly bad? Nearly all of them assume a world that doesn't exist. Nearly all of them assume an understanding of "privacy" that is not accurate. The latest dumb idea is to expand COPPA -- the Children's Online Privacy Protection Act -- that was put in place two decades ago and has been a complete joke. COPPA's sole success is in getting everyone to think that anyone under the age of 13 isn't supposed to be online. COPPA's backers have admitted that they used no data in creating and have done no research into the effectiveness of the law. Indeed, actual studies have shown that COPPA's real impact is in having parents teach their kids its okay to lie about their age online in order to access the kinds of useful services they want to use.

The "age of consent" within COPPA is 13 -- and that's why a bunch of sites claim you shouldn't use their site if you're under that age. Because if a site is targeting people under that age, then it has to go through extensive COPPA compliance, which most sites don't want to do. The end result: sites say "don't sign up if you're under 13" and then lots of parents (and kids) lie about ages in order to let kids access those sites. It doesn't actually protect anyone's privacy.

So... along comes Congress and they decide the way to better protect privacy online is to raise that "age of consent" to 16.

The "Preventing Real Online Threats Endangering Children Today Act" is sponsored by Republican Rep. Tim Walberg of Michigan and Democratic Rep. Bobby Rush of Illinois.

The legislation would also require parental consent before companies can collect personal data like names, addresses and selfies from children under 16 years old. That's up from 13 years old under the 1998 Children's Online Privacy Protection Act.

Because we all know that teenagers are always truthful online and, dang, are they going to totally love the idea that they need their parents' permission to use 99% of the internet. That's really going to solve the problems now, right?

Of course not. It's just going to teach more kids to lie about their birth dates when they sign up for internet accounts. Or, alternatively, it will overly punish the few honest kids who refuse to sign up for accounts until they're 16. But, hey, why should Congress care about that when they're "protecting the children."

Filed Under: bobby rush, congress, coppa, internet, kids, lying, privacy, tim walberg

FISA Court Benchslaps FBI For Its Abuse Of The FISA Warrant Process During The Trump Campaign Investigation

from the FBI-finally-uses-up-all-of-its-unearned-trust dept

This didn't take long. The Inspector General's report on the FBI's Trump campaign investigation had nothing positive to say about the FBI other than it sucked at its job. Unbelievably, this was better than the IG saying the FBI performed its job in a biased fashion as part of a concerted Deep State effort to prevent Trump from taking office. (Or from staying in it, I guess, since the prevention plan obviously didn't work.)

But there was also an aspect of the FBI's investigation that should probably be chalked up to malice, rather than stupidity: the FISA warrant process. The FBI was so very determined to keep campaign advisor Carter Page under surveillance it cherry-picked statements from cooperators and buried everything that might have suggested Page was not actually involved in a Trump-Russia conspiracy.

The Inspector General said the FBI's FISA affidavit process was so full of failure, the office would be performin an audit of the FBI's FISA application processes and procedures. That's still in the works. Until then, there's the FISA court itself, which is incredibly peeved by these findings.

An order issued December 17 by FISA judge Rosemary Collyer was released publicly -- something the FISA court rarely does without allowing the IC to perform a few rounds of declassification vetting first. Charlie Savage of the New York Times was the first to report on the order [non-paywalled link here], but the order [PDF] does a pretty good job of speaking for itself.

The order opens by making it clear Judge Collyer is incredibly unhappy with the FBI's behavior, as uncovered by the IG's investigation.

This order responds to reports that personnel of the Federal Bureau of Investigation (FBI) provided false information to the National Security Division (NSD ) of the Department of Justice, and withheld material information from NSD which was detrimental to the FBI's case, in connection with four applications to the Foreign Intelligence Surveillance Court (FISC) for authority to conduct electronic surveillance of a U.S. citizen named Carter W. Page. When FBI personnel mislead NSD in the ways described above, they equally mislead the FISC.

After detailing the OIG's findings, the court delivers its message to the FBI.

The FBI's handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.

Oof. The FISA Court just said it no longer trusts the FBI.

To earn back this trust, the court has ordered it to deliver a sworn submission that outlines the agency's efforts to ensure every application going forward will not contain material omissions or otherwise untrustworthy statements. Better, the court orders the FBI to undergo an immediate review of the December 5th order (which demanded the FBI explain the statements [or omissions] made in the Page warrant affidavits) in preparation for it to be released to the public. The last sentence of the order makes it clear any attempts to subject this soon-to-be-declassified order to further convenient omissions won't be tolerated by the Court.

In view of the information released to the public in the OIG report, the Court expects that such review will entail minimal if any redactions.

How many times must the FISA court benchslap IC members for abusing processes and powers? At least once more apparently. It's refreshing to see the FBI called out for its misconduct, but the FISA court has been soundly and serially abused for years by multiple agencies who know the real benefit of a non-adversarial system is it minimizes the number of parties capable of calling bullshit.

Filed Under: deception, fbi, fisa, fisa affidavit, fisa court, fisa warrants, fisc, lying, rosemary collyer

New York Police Union: Lying And Violating Rights Is Just Part Of Everyday Police Work

from the thanks-for-the-honesty,-idiots dept

On very rare occasions, the front mouths for law enforcement -- police unions -- will surprise you with inadvertent truthiness. Such a rarity occurred recently. It was -- as almost every union outburst is -- provoked by the introduction of the tiniest sliver of accountability.

The Bronx District Attorney decided to release its list of cops even it can't trust. What the New York Post refers to as a "naughty list" bears some resemblance to the Brady lists compiled (but rarely released) by other city prosecutors. These lists contain cops who have been caught lying in reports or in court or have had evidence tossed (usually more than once) for Constitutional violations.

These lists are supposed to make their way to criminal defendants. This rarely happens either. No prosecutor wants their star witness impeached, even if the prosecutor knows what we know: cops lie. Some more than others.

The list released to the New York Post contains some redactions (thanks to sealed cases), but at least a few officers' names were made public. Here's one snippet from the "naughty list."

Two… cops named were Sabrina Alicea and Waikiria Velez — whose statements in a June 2015 crash, which killed one and left another brain-dead — were contradicted by surveillance video, the DA’s records say.

Detective Winston McDonald made the list for lying about being robbed at knife point in early 2016 — and Capt. David Dent landed on the list after he was caught fudging transit crime numbers.

Here's where it gets fun. The Sergeants Benevolent Association, one of New York's law enforcement unions, reacted very badly to the release of the naughty list. Bear in mind this list only includes officers who've "given questionable testimony" or "had evidence tossed for unconstitutional policing."

This is how the SBA responded, cloaked in stupidity it mistook for righteous anger.

The city’s police union responded to the release by slamming the Bronx DA’s prosecution record and attacking the “anti-cop activists” who requested the lists to smear “honest, hard-working police officers.”

So, if we're to take the SBA at its word, the release of "naughty" list "smeared" "honest, hard-working" officers who… lied in court or committed Constitutional violations. Any straight reading of this assertion results in the assumption the SBA considers lying and Constitutional violations to just be part of the honest, hard work officers perform. That's a bit disturbing.

And let's be clear on something else: it's impossible to "smear" someone with a factual record of their wrongdoing. "Honest" cops don't lie. "Hard-working police officers" don't cut Constitutional corners. This is the SBA whining because some of its members have been exposed as lousy cops who do lousy things.

But if you're expecting incisive, thoughtful reactions to news of police misconduct, you don't ask police unions for input. All they've done over the past several decades is make it easier for bad cops to stay employed for pretty much forever, and attack anyone who dares to suggest not all police officers are saints or heroes. At least in this case, the SBA has made it clear hard-working officers engage in misconduct. And that appears to be just fine with the SBA.

Filed Under: brady list, law enforcement, lying, nypd, nypd seargents benevolent association, police

DOJ Says Judge Can't Order Its Lying Lawyers To Attend Ethics Classes

from the or-do-anything-to-punish-it-for-its-unethical-behavior,-apparently dept

Federal judge Andrew Hanen recently benchslapped the DOJ for lying about the central element in an ongoing lawsuit between twenty-six states and the US government over changes to immigration policies. The strongly-worded order (which, despite its accusations, never once used the word "lie") chastised DOJ lawyers for hiding information about the processing of certain immigrants -- something that happened over 100,000 times even as (a) the DOJ said no such processing would take place until February 2015, and (b) the states had obtained a temporary restraining order against this processing until the courts could sort it out.

The Court issued the temporary injunction on February 16, 2015. The timing of this ruling was clearly made based upon the representations that no action would be taken by Defendants until February 18, 2015. If Plaintiffs’ counsel had known that the Government was surreptitiously acting, the Plaintiff States could have, and would have according to their representations, sought a temporary restraining order pursuant to Federal Rule of Civil Procedure 65(b) much earlier in the process. [...] Due to the Government’s wrongful misstatements, the Plaintiff States never got that opportunity. The misrepresentations of the Government’s attorneys were material and directly caused the Plaintiff States to forgo a valuable legal right to seek more immediate relief.

Judge Hanen had limited weaponry at his disposal to punish the DOJ for its lies. The case was awaiting a Supreme Court review and Hanen's work was pretty much done. All he could do was issue an order demanding the DOJ work on its broken ethics. Hanen ordered all DOJ lawyers who might appear in court to attend mandatory ethics training and documentation confirming attendance passed on to him. This order had the potential to affect the DOJ's entire staff of lawyers, seeing as it was fighting a legal battle on 26 fronts.

The DOJ has responded to this order. It's not happy Judge Hanen has ordered it to clean up its own house. In its response [PDF], it claims the court has no power to order its legal staff to attend ethics classes… or to do anything, apparently. (via the Volokh Conspiracy)

The sanctions ordered by the Court far exceed the bounds of appropriate remedies for what this Court concluded were intentional misrepresentations, a conclusion that was reached without proper procedural protections and that lacks sufficient evidentiary support. Compounding matters, the sanctions imposed by this Court exceed the scope of its authority and unjustifiably impose irreparable injury on the Department of Justice, the Department of Homeland Security (DHS), and thousands of innocent third parties.

It's actually a two-prong argument -- one that the DOJ will be taking to the Appeals Court. One: the court can't issue this sort of order. Two: the DOJ did nothing wrong.

[T]he Government is likely to prevail on appeal, because (1) the Court’s finding of bad-faith misrepresentations is not supported by the evidence, and certainly not by clear and convincing evidence, as required; (2) the Court imposed sanctions without observing required procedural protections; and (3) the sanctions imposed place onerous administrative obligations on DHS that are unjustified by any demonstrated remedial purpose; impermissibly encroach on the Attorney General’s authority to supervise the conduct of litigation involving the United States; and improperly seek to regulate the conduct of and standards for appearance by Department of Justice attorneys before other state and federal courts in twenty-six States.

The DOJ believes that if it did do something wrong, it's up to the DOJ to decide how it's handled, or if it even should be addressed at all. The DOJ also shows a sudden (and very temporary) concern for the poor taxpayers.

The expenditures of money and manpower that the order requires of the Department of Justice are also significant. The estimated cost to the Department (and in turn, to the American taxpayer) in terms of direct expenditures and lost productivity would be between approximately $1 million and $1.5 million this year alone. See Lofthus Decl. ¶ 10. The costs over five years could total nearly $8 million. See id.; see also id. ¶¶ 11-20. These losses of taxpayer funds and productivity can never be recouped.

This is the DOJ complaining about rerouting less than $2 million of its $25-30 billion budget, which is like complaining about being told how to spend 8 cents of a $1000 windfall.

Nowhere in its response does the DOJ suggest what might be an appropriate remedy. Certainly, it's not obligated to provide the courts with suggestions for sanctions, but its filing implies the courts are simply supposed to let widespread "misrepresentation" go unpunished, if not unnoticed. The DOJ can police itself, its lawyers assert, while providing no examples of how it has done so in the past.

The DOJ claims its misrepresentations were not of the "bad faith" variety, suggesting the court should do little more than tell it to do better next time. But it's difficult to see how telling plaintiffs and the court that no immigrants were being processed under guidelines central to litigation involving 26 states is the same thing -- or nearly the same thing -- as having knowledge that 100,000 immigrants had already been processed prior to the restraining order's issuance.

Filed Under: andrew hanen, doj, ethics, lying

Federal Judge Catches DOJ Lying, Sanctions Lawyers With Mandatory Ethics Classes

from the a-small-fix-that-indicates-a-larger-problem dept

The DOJ likes to sling lawsuits and injunctions towards law enforcement agencies with histories of misconduct and deception, but it's apparently less interested in ensuring its own behavior is above reproach.

A lawsuit filed by a handful of states in opposition to the administration's new (and controversial) immigration policies have made their way through a number of courts, with one headed to the top court in the land. Meanwhile, down in Texas, a federal judge has uncovered DOJ lawyers have been engaged in a pattern of deception since the inception of the litigation. While the Supreme Court will be tackling the question of whether the administration has to play by its own rules, Judge Andrew Hanen is spending his time reprimanding the government's lawyers for their misdeeds. (via Jonathan Turley)

What remains before this Court is the question of whether the Government’s lawyers must play by the rules. In other words, the propriety of the Defendants’ actions now lies with the Supreme Court, but the question of how to deal with the conduct, or misconduct, of their counsel rests with this Court. To that end, this Court neither takes joy nor finds satisfaction in the issuance of this Order. To the contrary, this Court is disappointed that it has to address the subject of lawyer behavior when it has many more pressing matters on its docket. It is, at best, a distraction, and there is nothing “best” about the conduct in this case. The United States Department of Justice (“DOJ” or “Justice Department”) has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements. The DOJ’s only explanation has been that its lawyers either “lost focus” or that the “fact[s] receded in memory or awareness.”

These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed.

The lies the DOJ told involve a 2014 DHS directive that changed its handling of Deferred Action for Childhood Arrivals (DACA). The DOJ told the court and opposing counsel that no action under the new guidelines would commence until February 2015. These statements were made both orally (January 15, 2015) and in a filing (December 19, 2014). But in reality, the guidelines were already being used to process immigrants, resulting in over 100,000 modified DACA applications being granted or renewed by the DHS prior to either of these statements.

This was caught by the court in April 2015, but the DOJ insisted its statements weren't lies, but rather the "innocent mistakes" of poorly-informed counsel, shifting the blame towards the DHS. Months later, the real truth has come out.

Now, however, having studied the Government’s filings in this case, its admissions make one conclusion indisputably clear: the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.

[...]

In fact, the Justice Department knew that DHS was implementing the three-year renewal portion of the 2014 DHS Directive weeks before its attorneys told this Court for the very first time that no such action was being taken. Apparently, lawyers, somewhere in the halls of the Justice Department whose identities are unknown to this Court, decided unilaterally that the conduct of the DHS in granting three-year DACA renewals using the 2014 DHS Directive was immaterial and irrelevant to this lawsuit and that the DOJ could therefore just ignore it. [Doc. No. 242 at 17]. Then, for whatever reason, the Justice Department trial lawyers appearing in this Court chose not to tell the truth about this DHS activity. The first decision was certainly unsupportable, but the subsequent decision to hide it from the Court was unethical.

This isn't the DOJ lying about a minor procedural detail. This is the DOJ lying about the DACA modification central to the states' lawsuit against the US government. To purposely mislead the court and the defendants about the status of DACA applicants cannot be waved away with claims of foggy memories. It also cannot be waved away with claims that the DOJ had no idea so many applicants were already being processed using guidelines still being contested in federal court.

In its own defense, the Government has claimed it did not know before February 27, 2015, that the number of individuals that had been granted three-year deferrals between November 24, 2014, and the date of the injunction exceeded 100,000. It claims that it notified the Court very quickly after it realized that the number exceeded 100,000. This may be true, but knowing the exact number is beside the point. [...] Whether it was one person or one hundred thousand persons, the magnitude does not change a lawyer’s ethical obligations. The duties of a Government lawyer, and in fact of any lawyer, are threefold: (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled. See MODEL RULES OF PROF’L CONDUCT r. 3.3 cmts. 2 & 3 (AM. BAR ASS’N 2013). The Government’s lawyers failed on all three fronts. [...] The failure of counsel to do that constituted more than mere inadvertent omissions—it was intentionally deceptive. There is no de minimis rule that applies to a lawyer’s ethical obligation to tell the truth.

The DOJ's lies made the court's temporary restraining order a joke.

The Court issued the temporary injunction on February 16, 2015. The timing of this ruling was clearly made based upon the representations that no action would be taken by Defendants until February 18, 2015. If Plaintiffs’ counsel had known that the Government was surreptitiously acting, the Plaintiff States could have, and would have according to their representations, sought a temporary restraining order pursuant to Federal Rule of Civil Procedure 65(b) much earlier in the process. [...] Due to the Government’s wrongful misstatements, the Plaintiff States never got that opportunity. The misrepresentations of the Government’s attorneys were material and directly caused the Plaintiff States to forgo a valuable legal right to seek more immediate relief.

Unfortunately, the court is limited to what it can do in response to the DOJ's misconduct. Holding the DOJ responsible for the involved states' legal fees would result in the participating states effectively paying their own legal fees. It would be nothing more than moving around money collected from taxpayers and, thanks to federal taxes, robbing plaintiffs to pay plaintiffs. Instead, Judge Hanen has ordered that any DOJ lawyer who has -- or will -- appear in the courts of the 26 states involved in the lawsuit attend legal ethics courses. The courses will be provided by a legal agency unaffiliated with the DOJ, and the DOJ itself will be required to provide annual reports to the court confirming these courses are being attended.

This may seem like a laughable conclusion to such widespread, persistent dishonesty, but with the case currently in front of the Supreme Court, Judge Hanen only has a few options at his disposal. Awarding fees would be even more of a joke and he's in no position to find in favor of the State of Texas, much less the other 25 plaintiffs. So, this will have to do. More importantly, this opinion is on the record, in writing, and will serve as documentation of the DOJ's willingness to bend/break rules to serve its own purposes.

Filed Under: doj, law enforcement, lying, sanctions