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School Money for Kids Who Need It Most, a Childhood Trauma Ted Talk, Kids in Gangs, and Pitchess Jail Teacher’s Sex Conviction

February 19th, 2015 by Taylor Walker

MOST CA SCHOOL DISTRICTS FAILING TO USE NEW BUDGET $$ TO RAMP UP SERVICES FOR FOSTER KIDS

Prior to a 2013 funding approach overhaul, California education budget allocation was severely inequitable, often giving more money to affluent school districts while short-changing schools—and kids—that needed the state dollars the most. The new budget system, the Local Control Funding Formula, is a weighted funding approach that allows districts (rather than the state) to decide how a portion of their funding is spent. The new formula aims to level the playing field for high-needs students, including foster kids, who are severely underserved by school districts.

The Local Control Funding Formula allocates more money for high-needs kids, and requires districts to set up goals and action plans for helping these students overcome barriers with regard to attendance, suspensions and expulsions, and interactions with school police.

A year into the Local Control Funding Formula implementation, a new report has found that, overall, California districts are failing to take advantage of the new system to analyze and address the needs of students in foster care.

Foster kids have the worst educational outcomes—including the lowest graduation rates—among high-needs student groups, which are comprised of kids from low-income households, kids with disabilities, and English-learners. In California, kids attend an average of eight different schools while in foster care. Nationwide 67% of foster kids have been suspended at least one time. Just under half of foster kids in the US battle emotional and behavioral problems, and a quarter of former foster kids (now adults) have PTSD, a rate twice that of war veterans.

According to the report, LA Unified was the only school district that had established baseline suspension data to measure the district’s progress in that area. No schools figured out the baseline data for expulsions. Only Temecula established a goal specifically targeting the expulsion of students in the child welfare system. And again, only Temecula set aside money expressly for lowering the rates at which foster kids get suspended and expelled.

Only two districts, including LAUSD, identified the baseline data for foster kids’ school attendance. Only 9% of districts named goals, and just 11% cited spending money on helping foster kids with attendance issues.

The report, authored by Laura Faer and Marjorie Cohen of Public Counsel, which focuses solely on districts’ implementation of the funding changes with regard to students in foster care, examined data from 64 California districts in which 55% of the state’s students in foster care are enrolled (the districts had to have at least 150 kids in the child welfare system).

Among other recommendations, the report calls on districts to get serious and analyze data, create goals, and, you know, earmark that extra money to help disadvantaged kids, as intended. The report lists some worthy things to put the money toward, like restorative justice, Positive Behavior Interventions and Supports, and trauma-informed systems.

Fix School Discipline has a good roundup of the report’s main points. Here are some clips:

“Foster youth in California are disproportionately subjected to suspensions, expulsions and contacts with the juvenile justice system, all of which compound and exacerbate the trauma most have already experienced,” said Laura Faer, Statewide Education Director for Public Counsel and co-author of the report. “Improving school climate for foster youth means putting a stop to school removals and referrals to police and developing a school environment that supports their social, emotional and mental health. Developing a positive and trauma-informed school environment must be a top priority this year for districts that serve foster youth.”

[SNIP]

…very few districts analyzed the needs of foster youth or created specific strategies for addressing their challenges, which include barriers to enrollment, lack of transportation, disruptive school changes, multiple, disconnected system players, absence of a single and constant adult supporter, and exposure to high levels of trauma, all of which severely impact learning and behavior. However, in response to the new law and the efforts of organizations calling on and working with districts to prioritize school climate improvements, a large number of districts articulated promising overall school climate approaches…


AND WHILE WE’RE ON THE TOPIC OF KIDS AND TRAUMA…

Center for Youth Wellness founder Nadine Burke Harris explains the link between childhood trauma and long-term health issues in a TED talk (that everyone who hasn’t already, should watch).


NEW REPORT FINDS VERY DIFFERENT TEEN GANG INVOLVEMENT NUMBERS THAN LAW ENFORCEMENT ESTIMATES

There are more than one million kids in gangs across the nation, according to an interesting report that will be published in the March issue of the Journal of Adolescent Health. That number is based on a sample of 6,700 surveyed kids and teenagers, and is three times higher than the number estimated by the law enforcement-based National Youth Gang Survey (NYGS).

According to the report, the turnover rate for gang membership was 37% within a year period, a rate that contradicts the notion that when kids join gangs, they never leave them.

The report also found that 30% of young gang members were girls.

The study’s lead author, David Pyrooz, is an assistant professor of criminal justice at Sam Houston State University.

The Juvenile Justice Information Exchange has more on the report’s findings, as well as why Pyrooz says the study’s gang population estimates are so far away from law enforcement numbers. Here’s a clip:

Law enforcement, the study said, puts more emphasis than the study did on older gang members and those involved in violent acts in determining the total number of gang members.

And while law enforcement relies on several factors, such as participating in violent acts or wearing gang colors, the researchers in the new study determined gang membership solely by youths identifying themselves as gang members.

“We’re picking up on this sort of dark figure of this hidden population of gang members in the U.S. that just aren’t going to be identified in law enforcement databases,” Pyrooz said.

“These are the guys who are more peripheral to the gang. They aren’t necessarily involved in deep-end gang activities, whereas law enforcement is picking up on those guys who are the deep end, those individuals who are committing crimes at high rates. They’re involved in lots of violence. They’re extremely embedded in the gang, hanging out on more of a daily basis, whereas we think we’re picking up on the entire picture as opposed to just that core element of the gang population.”

Pyrooz said most youths who join gangs do so at around ages 12 or 13, and the peak age for gang membership is 14.


LA COUNTY JAIL TEACHER CONVICTED OF SEX WITH INMATE STUDENT

A former LA County Pitchess jail teacher, 33-year-old Lisa Nichole Leroy, was sentenced to three years of probation and 40 hours of community service after pleading no contest to having sex with an inmate in a jail classroom.

LA County District Attorney Jackie Lacey’s office has further information on the case.

Posted in ACEs, DCFS, District Attorney, Foster Care, juvenile justice, LA County Jail, LASD, PTSD, Trauma | No Comments »

Longtime LA Sheriff’s Investigator Sues for Alleged Retaliation Over Refusal to Falsify Job Applications & to Campaign for Paul Tanaka

February 18th, 2015 by Celeste Fremon


DEMANDS TO FALSIFY EMPLOYMENT DOCUMENTS & TO SUPPORT A CERTAIN CANDIDATE FOR SHERIFF

A longtime background investigator for the Los Angeles Sheriff’s Department has filed a lawsuit alleging that he was severely retaliated against when he refused to falsify employment applications for unqualified applicants who were reportedly favored by then-undersheriff Paul Tanaka.

In the lawsuit filed last Friday in Los Angeles Superior Court, plaintiff Ban Nyegen, who has been with the sheriff’s department since 1996, alleges that, at the end of 2012, he began getting requests to alter LASD employment applications so that certain job applicants who “failed basic requirements” would be able to “pass through the background process.” Nyegen was reportedly told by a sergeant in the personnel bureau that the orders to falsify documents came from then-undersheriff Paul Tanaka.

When Nguyen refused whitewash documents for the specially designated applicants, he alleges that the applications in question were given to other background investigators, who were presumably more willing.

The lawsuit further alleges that, sometime after he refused the orders to doctor the background checks, Nguyen was approached by LASD Captain Kevin Hebert who asked him to support Tanaka’s campaign for sheriff and actively campaign for him. Again, Nguyen declined.

(Previously, WitnessLA reported in depth on a pay-to-play scheme within the department involving Paul Tanaka’s previous campaigns for mayor of Gardena.)

Subsequent to his refusal to agree to campaign for the former undersheriff, Nguyen’s complaint states that Hebert moved him out of his position as a senior background investigator to another far less desirable entry level position in personnel.

The complaint describes other retaliatory actions including the filing by Hebert of “an unwarranted internal affairs investigation against the plaintiff.”


NGUYEN GOES TO BACA WHO DECLINES TO INTERVENE

Near the end of 2013, according to the lawsuit, Nguyen told then Sheriff Lee Baca about the demand to “lie about or conceal damaging background information concerning Tanaka connected applicants,” and the retaliation that occurred when he would’t comply, or support Tanaka’s political campaign. Rather than helping matters, the lawsuit reports that after Nguyen went to Baca the retaliation got worse, and he was warned by another captain, Judy Gerhardt, that “he was not allowed to go beyond the chain of command again with his complaint, and she refused to transfer plaintiff out of the hostile workplace.”

(Note: by August of 2013, Paul Tanaka had been forced to retire, but reportedly he still had much behind-the-scenes influence in certain quarters, long after that.)

Nguyen alleges that, as part of the retaliation for his having reported to Baca, he was required to fill in as a bailiff at various court locations six times a month, and was given make-work projects by Captain Gerhardt “that prevented him from being able to do any meaningful work,” according to the lawsuit.

Eventually, the work-place stress got to Nygen and he took a medical leave

And in November 2014, of course, Jim McDonnell defeated Paul Tanaka for the office of Los Angeles County Sheriff.

Sheriff McDonnell was sworn in on December 1, 2014, with a strong message of reform.


RETALIATORY PATTERNS

Nyegen’s lawsuit has many things in common with other reports by department members who have alleged to us, and in still active lawsuits, that refusal to go along with wrongdoing, or any attempt to report alleged departmental wrongdoing, resulted retaliation. With some people the retaliation included unwarranted internal affairs investigations and, in certain cases, physical threats.

According to the reports we have received most recently, in some cases the retaliation is still occurring.

Posted in Jim McDonnell, LASD, Paul Tanaka, Sheriff Lee Baca | 17 Comments »

Mandatory Minimums, Prop 47, Anti-homelessness Rules, and Sex Offenders Killed in CA Prisons

February 18th, 2015 by Taylor Walker

US ATTORNEY GENERAL ANNOUNCES FEWER MANDATORY MINIMUMS SOUGHT FOR DRUG CRIMES

In August 2013, US Attorney General instructed federal prosecutors to stop seeking mandatory minimum sentences for low-level, non-violent drug offenders, as part of a new “Smart on Crime” initiative. On Tuesday, he reported on the results of his push for fewer outsized sentences for these non-violent drug crimes.

According to Holder, in the year after Holder announced the new initiative, there were almost 1,400 fewer federal drug trafficking cases, a decrease of 6% over the previous year. And prosecutors sought mandatory minimum sentences in half of low-level drug cases, down from two-thirds of such cases.

Here’s a clip from the announcement on the Attorney General’s website:

The figures announced Tuesday were compiled by the U.S. Sentencing Commission at the request of the Justice Department to measure the impact of several reforms implemented in 2013 through Attorney General Holder’s “Smart on Crime” initiative. Those reforms—aimed at restoring fairness to the criminal justice system and at confronting the problem of America’s overcrowded prison system—instructed federal prosecutors to exercise greater discretion in selecting drug cases to bring to federal court. The data suggests prosecutors heeded that call, as the overall number of federal drug trafficking cases dropped by six percent in FY2014.

While the sheer number of drug cases went down, the data also showed that federal prosecutors have prioritized more serious cases. Holder pointed to a rise in the average guideline minimum sentence, from 96 months in FY2013 to 98 months this past year. That suggests the severity of offenses prosecuted in FY2014 was slightly higher.

Most important of all, Holder said, was the trend observed with respect to mandatory minimums. After several years in a row that saw federal prosecutors pursue such mandatory sentences in roughly two-thirds of drug cases, last year’s rate dropped to one-in-two. The Attorney General said this showed that the department was succeeding in reserving these strict sentences for the worst types of offenders rather than imposing indiscriminately.

“This figure, perhaps more than any other, shows the significant impact that our policy reforms are having,” said Attorney General Holder. “These are extremely encouraging results.”

Advocates say these steps forward are great, but much more can be done. There are still tons of federal prisoners serving preposterously long sentences for drug offenses. Weldon Angelos, for instance, is serving a 55 year sentence for selling weed while carrying a firearm. (Weldon is the face of the Koch brothers’ criminal justice reform campaign. We pointed to the campaign, and Weldon, here.)

In a dramatic contrast to Weldon’s case, back in California, Governor Brown is reviewing a controversial parole board decision to release a former Mexican Mafia leader (turned informant) serving a life sentence for two murders.


THE RUSH TO HELP PROP 47-ERS IN CALIFORNIA COUNTIES

Jill Jenkins is a paralegal at the Alameda County Defender’s Office. She works in an office that has worked its way through nearly everyone seeking to reduce their convictions through Proposition 47, which lowered certain low-level felonies to misdemeanors. But Jenkin’s connection to the important new law runs deeper than her job. Jenkins herself, is a former felon who had her conviction commuted to a misdemeanor by Prop. 47, and her criminal record expunged.

But not all Prop 47-ers will share Jenkins’ good fortune. It is critical that those still serving time for their felony convictions have a place to live, and are connected with other resources to help them reenter their communities, upon their release.

Not all counties have been able to move as quickly as Alameda, either, and are struggling under the towering workload and the law’s three-year deadline.

The San Jose Mercury’s Malaika Fraley has more on the issue. Here’s a clip:

The difficulties that people with felony convictions face are profound, said Lenore Anderson, executive director of Californians for Safety and Justice and co-author of Proposition 47. They have a difficult time getting jobs, promotions, federal student loans, certain housing and public assistance, teaching credentials, and more.

Because the maximum punishments for misdemeanors are much lower than for felonies, many offenders were released from jail or prison once their offenses were reclassified under the new law.

Counties like Los Angeles and Orange still have a long way to go to reduce convictions for all of their Proposition 47-eligible offenders who are currently incarcerated, Anderson said. But defense attorneys in the Bay Area hit the ground running the week it became law and are largely done addressing that population.

[SNIP]

In an Oakland courtroom last fall, inmates were doing arm pumps and flashing big smiles at the news that they were being released. Social workers rushed to their side to hand out referrals for community-based organizations offering emergency shelter, mental health services, rehab programs and job training to help with the transition.

“They were thrilled because a lot of people didn’t even know why they were coming in to court,” said Sascha Atkins-Loria, one of a team of social workers deployed by Alameda County public defender Brendon Woods to help Proposition 47 clients.

“Eighty percent seemed overjoyed because they didn’t know they were getting out,” Atkins-Loria said. “Another 20 percent seemed like they didn’t know where they were going to stay tonight.”

Legislative analysts say that lowering the prison population through Prop 47, and thus eliminating some of the costly use of out-of-state private prisons, could save California $20 million. The analysts said, however, that their estimate may be off without the usual four-year prison population estimates from Governor Jerry Brown. The governor, in turn, says that it will be difficult to predict prison population numbers without knowing the long-term Prop 47 effects.

The LA Times’ Paige St. John has the story. Here’s a small clip:

Coupled with a $36-million project to expand three existing prisons, the analysts say California could potentially reduce its use of private overflow prisons and save $20 million “under almost any scenario.”

However, the report notes, the assumption is uncertain and lawmakers should demand a more detailed accounting from Brown’s administration. Without long-term projections, the report states, “it is impossible for the Legislature to make an informed decision” on prison spending.

Another important question, aside from how much money Prop 47 will save, is how those extra dollars will be used.

State money saved by Prop 47 will be be split three ways. Sixty-five percent will go to mental health and drug rehab programs for criminal justice system-involved people, 25% will fund efforts to reduce truancy and help at-risk students, and 10% will be spent on establishing trauma recovery centers for crime victims.

But Prop 47 does not tell counties what to do with the money they save (the Center on Juvenile and Criminal Justice estimated LA could save $100 million to $175 million per year).

Here’s what Californians for Safety and Justice (the group behind Prop 47) has to say about the Prop 47 money and where it will be invested:

When is the money available?

State savings will be available in 2016, whereas county savings are already being realized.

The state savings from Prop. 47 come from fewer people being sent to state prison. To determine those amounts, the state will calculate how many fewer people are sent to state prison each year because of the felonies reduced by Prop. 47…

Who decides where the state savings go?

Savings from reduced incarceration within state prisons will be distributed by a grant process run by three different state agencies:

The Board of State of Community Corrections will evaluate grant proposals and distribute 65% of the funds for mental health and drug treatment; the Department of Education will distribute 25% for programs in K-12 schools focused on at-risk students; and the California Victim Compensation Program will distribute 10% for trauma recovery services for crime victims.

Savings achieved from reduced incarceration within county jails are not distributed by Prop. 47 but rather by local government bodies. Local advocates may advocate for those savings to be reallocated to crime-prevention strategies and programs that best serve the needs of that particular community.

Can the money go to law enforcement or jails?

The savings from Prop. 47 are intended to go to programs that prevent crime, reduce recidivism and aid crime victims. Any public agency may apply.

The law is focused on investing savings in prevention approaches that reduce the cycle of crime for people (especially those with drug or mental health problems) at risk of committing misdemeanors addressed in Prop. 47.


REVERSING HARMFUL ANTI-HOMELESS RULES IN CALIFORNIA

Fifty-eight cities in California have together authorized hundreds of ordinances that target homeless people, criminalizing things like sitting, sleeping, standing, and food-sharing, according to a report expected to be released this week by the Policy Advocacy Clinic at UC Berkeley. The report predicts another 100 city rules against homelessness within the next ten years. In 2013, more than 7,000 homeless Californians were arrested for vagrancy-related offenses.

In an op-ed for the LA Times, the Western Regional Advocacy Project’s Paul Boden, and UC Berkeley Policy Advocacy Clinic director, Jeffrey Selbin, point to a “crucial” Right to Rest bill (part of a three-bill package called the Homeless Bill of Rights) being pushed by advocates that would begin to undo some of the anti-homeless rules plaguing California cities. Here’s how it opens:

Anti-Okie laws. Sundown towns. Ugly laws.

These old vagrancy laws recall shameful periods in our history when communities selectively persecuted and punished migrants, people of color and the physically disabled. The U.S. Supreme Court struck down California’s anti-Okie law, which made it a crime to bring anyone indigent into the state, in 1941. In a 1972 case from Jacksonville, Fla., the Supreme Court invalidated a local vagrancy ordinance because it encouraged arbitrary arrests, criminalized innocent activities and placed unfettered discretion in the hands of the police.

But those rulings weren’t the end of vagrancy laws. In their latest iteration, they target homeless people. After homelessness began skyrocketing in the 1980s, cities responded with laws that criminalize basic life activities conducted in public like standing, sitting, resting or sleeping, and even sharing food with homeless people. As the crisis worsened in California — 22% of America’s homeless population now lives in the state — cities have piled on more and more vagrancy laws…

Although arrests are only the tip of the enforcement iceberg, more than 7,000 Californians were picked up for vagrancy in 2013 according to police agency reports to the FBI. Vagrancy arrests increased 77% in California from 2000 to 2012, while arrests for “drunkenness” and “disorderly conduct” declined by 16% and 48% respectively. In other words, vagrancy laws increasingly are being used to punish people’s status — being homeless — rather than their behavior.


HIGH RATE OF SEX OFFENDER DEATHS IN CALIFORNIA PRISONS

An investigation by the AP’s Don Thompson revealed that since 2007, male sex offenders comprised 30% of inmate deaths in California prisons, while only making up 15% of the total prison population. Thompson’s investigation also found the mortality rate of California inmates to be twice as high as the national average.

According to jails expert James Austin, president of the JFA Institute, those numbers will not go down until the state lowers its prison population much further than the 137.5% of capacity mandated by a panel of three federal judges.

Here’s a clip from Thompson’s story:

The deaths — 23 out of 78 — come despite the state’s creation more than a decade ago of special housing units designed to protect the most vulnerable inmates, including sex offenders, often marked men behind bars because of the nature of their crimes.

In some cases, they have been killed among the general prison population and, in others, within the special units by violence-prone cellmates. Officials acknowledge that those units, which also house inmates trying to quit gangs, have spawned their own gangs.

Corrections officials have blamed a rise in the prison homicide rate on an overhaul meant to reduce crowding. As part of the effort, the state in 2011 began keeping lower-level offenders in county lockups, leaving prisons with a higher percentage of sex offenders and violent gang members.

Violence and homicides won’t decline unless the state goes well below the prison population level set by the courts — 137.5 percent of the system’s designed capacity, said James Austin, president of the JFA Institute, a Washington, D.C., consulting firm that works on prison issues.

“Until the state gets its prison population below 100 percent of capacity, you’re going to have this,” he said.

Overall, 162 California prisoners were killed from 2001 to 2012, or 8 per 100,000 prisoners — double the national average over the same time period and far higher than that of other large states, including Texas, New York and Illinois, according to federal statistics.

Posted in Department of Justice, Edmund G. Brown, Jr. (Jerry), Reentry, Sentencing, The Feds | No Comments »

Are LA’s Foster Care & Juvie Justice Kids Being Over Drugged?….When Experts Recant in Criminal Cases….The Flawed Science of Bite Mark Evidence…..TAL’s Series: “Cops See Things Differently”

February 17th, 2015 by Celeste Fremon



As you know, we’ve been following San Jose Mercury News reporter Karen de Sá’s important series on over drugging in California foster care system.

Then, late on Tuesday, the LA Times’ Garrett Therolf reported that the kids overseen by LA County’s juvenile probation system plus LA County’s foster care children are being drugged in greater numbers than was originally thought.

Here’s are some clips from Therolf’s story:

Los Angeles County officials are allowing the use of powerful psychiatric drugs on far more children in the juvenile delinquency and foster care systems than they had previously acknowledged, according to data obtained by The Times through a Public Records Act request.

The newly unearthed figures show that Los Angeles County’s 2013 accounting failed to report almost one in three cases of children on the drugs while in foster care or the custody of the delinquency system.

The data show that along with the 2,300 previously acknowledged cases, an additional 540 foster children and 516 children in the delinquency system were given the drugs. There are 18,000 foster children and 1,000 youth in the juvenile delinquency* system altogether.

If we are reading this right, that means that more than half of LA County’s kids in the juvenile justice system are being given psychotropic medications. Is that possible?

State law requires a judge’s approval before the medication can be administered to children under the custody of the courts, but a preliminary review showed no such approval in the newly discovered cases.

Child advocates and state lawmakers have long argued that such medications are routinely overprescribed, often because caretakers are eager to make children more docile and easy to manage — even when there’s no medical need.

We’ll get back to you as we know more on this disturbing issue.


NEW CALIFORNIA LAW HELPS IN CASES WHEN EXPERTS REVERSE TESTIMONY

A new California law, which took affect in January, makes it easier to get a case overturned when experts recant. But will it help the man whose case inspired the law?

Sudhin Thanawala of the AP has the story.

Here’s a clip:

This much is not in dispute. William Richards’ wife, Pamela, was strangled and her skull smashed in the summer of 1993. A California jury convicted Richards of the slaying after hearing now-recanted bite-mark testimony.

But California judges have disagreed about whether that change in testimony was grounds for tossing Richards’ conviction. Now, almost two decades after Richards was sentenced to 25 years to life in prison, his attorneys are hopeful a new state law inspired by his case will set him free.

The law, which took effect in January, makes it easier for a defendant to get a conviction overturned when experts recant their testimony. It prompted attorneys for the 65-year-old Richards, who has always maintained his innocence, to again ask the California Supreme Court to throw out a jury’s guilty verdict.

Legal experts say the law will impact a wide variety of cases where experts later have second thoughts about their testimony. And it gives attorneys fighting to exonerate their clients an important new tool.

“More and more, experts are reconsidering their opinion not because they have pangs of guilt, but because in fact the science changes,” said Laurie Levenson, a criminal law professor at Loyola Law School. “You want a legal system that recognizes that reality.”

A San Bernardino County jury convicted Richards in 1997 of first-degree murder following expert testimony that a mark on his wife’s hand was consistent with a unique feature of Richards’ teeth. That expert, a forensic dentist, later recanted, saying he was no longer sure the injury was even a bite mark.


AND WHILE WE’RE ON THE SUBJECT OF THE SCIENCE OF BITE MARK MATCHING….

According to the Innocence Project, 24 people have been exonerated after they were either convicted or arrested because of the analysis of a bite mark analyst.

Director of special litigation for the Innocence Project, Chris Fabricant, who specializes in bite mark evidence, estimates that there are still hundreds of people in prison today due to bite mark testimony, including at least 15 awaiting execution, writes the Washington Post’s Radley Balko.

Balko’s story on the flawed “science” of bite-mark matching, and those who still go to great lengths to defend it, is both important and alarming.

Here’s how it opens:

Before he left the courtroom, Gerard Richardson made his mother a promise. “I told her that one day she’d see me walk out of that building a free man,” he says.

Her response nearly broke him. “She said, ‘Gerard, I’ll be dead by then.’”

Richardson, then 30, had just been convicted for the murder of 19-year-old Monica Reyes, whose half-naked body was found in a roadside ditch in Bernards Township, N.J. The year was 1995, and Richardson had just been sentenced to 30 years in prison.

There were only two pieces of evidence implicating him. One was a statement from Reyes’s boyfriend, who claimed to have heard Richardson threaten to kill her. But that statement was made only after police had shown the boyfriend the second piece of evidence: a finding from a forensic odontologist that a bite mark found on Reyes’s body was a match to Richardson’s teeth. Dr. Ira Titunik, the bite mark expert for the prosecution, would later tell jurors there was “no question in my mind” that Richardson had bitten Reyes.

“I thought it was crazy,” Richardson says. “There was no way it was possible. The FBI looked at hairs, fibers, blood, everything the police found at the crime scene. None of it came from me. Just this bite mark.”

Two decades later, DNA technology was good enough to test the tiny amount of saliva in the bite found on Monica Reyes body, resulting in the overturning of Richardson’s conviction.

Here’s Part 2 of Balko’s series on bite mark evidence telling how the bite mark matchers went on the attack when subjected to scientific scrutiny as American courts across the country welcomed bite mark evidence


THIS AMERICAN LIFE TAKES ON THE DIVIDE IN AMERICA ABOUT POLICING AND RACE

After the conflicts caused by events in Ferguson, along with the death of Eric Garner in New York, and other controversial shootings by police, Ira Glass and the producers of This American Life noted that there seemed to be a huge divide in the nation about how people view the issue of race and policing.

The TAL producers originally intended to a single show on the issue of these intense differences in views. But they ran across so many relevant stories, that they devoted two shows to the complex tales that they found.

In the first episode This American Life looks at one police department—in Milwaukee-–which had a long history of tension with black residents, and a chief of police committed to changing things. But although some things change, others do not. And nothing is simple. When an unarmed black man is killed by police in controversial circumstances, the battle lines form, and the two groups opposing groups agree on only one thing: they want the chief out.

By the show’s end, we glimpse change in Milwaukee, yet it comes not in steps, but in inches.

A week later, in the second hour of stories about policing and race, This American Life reporters tell about one city where relations between police and black residents went terribly, and another city where they seem to be improving remarkably.

We highly recommend both programs. They are designed to start conversations.

Posted in children and adolescents, FBI, Foster Care, How Appealing, Innocence, juvenile justice, law enforcement, Probation, race, racial justice | No Comments »

The Odd Case of 3 LASD Deputies Charged With Mortgage Fraud & Their Dramatic Acquittal

February 16th, 2015 by Celeste Fremon



JUDGE SAYS NOT GUILTY IN FEDERAL CASE AGAINST THREE SHERIFF’S DEPUTIES ACCUSED OF “BUY & BAIL” MORTGAGE FRAUD

The federal trial of three Los Angeles County Sheriff’s deputies for conspiracy to commit bank fraud ended last Thursday in a manner that no one saw coming.

Midway through the proceedings against Billy, Benny and Johnny Khounthavong,—who in addition to being LASD deputies are also brothers—U.S. District Court Judge Manuel Real stunned court observers by abruptly entering a verdict of acquittal, after announcing that no reasonable jury could find beyond a reasonable doubt that the Khounthavon brothers were guilty.

The basics of the case are as follows: the three Khounthavong brothers were charged with making false statements to two different banks so that they could buy one house in Corona, CA, while simultaneously dumping another house in Chino, CA, for which they had paid too much in 2006 during the real estate boom, and which was, by 2011, disastrously under water.

The feds alleged that the brothers lied to Flagstar Bank, making their collective financial situations appear better than they were so they could qualify for a loan to buy the Corona House. At the same time, according to the prosecution, they had painted their financial status as far more dire to Bank of America, their primary mortgage holder on the underwater Chino house, so they qualify for a “short-sale”—which is the term for selling a loan-encumbered property for less than the amount of the remaining mortgage.

The allegations were slightly more detailed, but that’s the gist of it.

Yet, after Assistant U.S. Attorney Margaret Carter finished putting on her case late last week, before the defense could call its own witnesses, Judge Real announced the startling acquittal in what is called a Rule 29 ruling.


RULE 29

In brief, here’s how Real’s action works: In every federal criminal trial, the defense has the right to make what is known as a Rule 29 motion. This is when the defendant’s attorney stands up and says to the judge: “Your honor, I move for a judgment of acquittal on the ground that the prosecution has failed to present sufficient proof from which any rational juror could conclude beyond a reasonable doubt that my client is guilty on each and every count.” Or similar words to that effect.

The motion is generally made just after the prosecution has finished putting on its case (and before the defense puts on its case). But sometimes it can come at the end of both presentations, just before the case goes to the jury.

In most instances, the Rule 29 motion is pro forma, a legal ritual.

Yet, even if those at the defense table know they are sunk, the motion is nearly always made.

And it’s almost never granted.

For one thing, in order to acquit under Rule 29, the judge is required to see the evidence in the most favorable possible light for the prosecution before taking such a huge step. You see, unlike a jury verdict of not guilty, a Rule 29 acquittal cannot be appealed. So Rule-29-ing a case, as they say, is a big deal.

Yet, last Thursday, before the defense put on any witnesses, Judge Real—–who has a reputation for generally being pro-government, and a lengthy record for, shall we say, quirky behavior—announced that the prosecution led by Carter, had not made its case against the Khounthavong brothers.

And that was that.


JUDGE QUESTIONS UNDERPINNINGS OF PROSECUTION’S CASE

“It represents a complete failure of proof when a judge enters a judgment of acquittal,” said Adam Braun, who was Benny Khounthavong’s attorney. “We were grateful that Judge Real made the correct decision.” Braun added that now the brothers mostly wanted to rebuild their lives. “It was a nightmare,” he said. “They’ve been through the wringer. My client has a four-month old baby.”

Had the brothers been convicted they could have been sentenced to up to five years in federal prison.

Thom Mrozek, spokesman for the U.S. Attorney’s office, declined to comment on the details of the case yet said, “We are disappointed with the judge’s ruling, but we accept the outcome.”

According to Braun, Real said when he announced his decision, that there was no evidence to support an attempt to deceive the banks on the part of the brothers; no evidence that any of the banks were harmed; no evidence that the brothers themselves caused the errors in question on the loan application.

During the trial, bank representatives reportedly confirmed that none of the brothers had ever had any direct interactions with bank officials about the matters in question, and neither of the banks had complained to the feds, according to testimony. In fact, according to Braun, the B of A representative told the court that, from the bank’s point of view, a short sale was actually preferable to a foreclosure, which would have been the brothers’ other legal way of getting out from under a crippling mortgage that they felt they could no longer afford. (The payments on the $492,298 mortgage for the new 3,900-square-foot Corona house, where the three brothers now live, are substantially less than the payments for the $740,000 the Khounthavongs still owed on the underwater Chino house, although the two houses are comparative in size.)

The crucial witness for the prosecution in the case, according to Braun, was the Khounthavongs’ real estate agent, who was also their loan broker. The agent/broker was evidently given immunity by the prosecution because she had her own legal issues.

It seems in certain kinds of real estate transactions in California, a real estate agent cannot also act as a loan broker, because they are both incentivized functions, involving commissions, and thus present a conflict of interest. This agent, however, was reportedly attempting to do both, and in so doing to collect two healthy commissions for her trouble. “When the bank brought up that she couldn’t be the loan broker,” explained Braun., “she whited out her signature and had a subordinate sign in her place,” then reportedly went ahead and collected the two commissions. “She committed undisputed bank fraud, but the government gave her immunity,” said Braun.

Yet, when the broker/loan agent testified at trial, she stated that the primary misrepresentation on the loan documents—namely an incorrectly high valuation for the underwater Chino house, which was crucial to the prosecutors’ case—was actually a number that the agent had personally filled in without discussing her choice with the brothers. When the brothers signed the 160-page loan docs in front of a notary, according to Braun, they just signed in the designated sections with only a cursory glance at the rest of the lengthy paperwork.

After the real estate agent/broker appeared to get the brothers off the hook for at least a part of the charges, prosecutor Margaret Carter asked to treat the woman as a hostile witness, and things reportedly went downhill from there with the judge, who had already been questioning some of the witnesses on his own.


THE OTHER LASD INDICTMENTS

The case against the Khounthavong brothers was a bit of an outlier to begin with, coming as it did in a group of 18 indictments unsealed in December 2013, the majority of which pertained to either brutality in the jails, or obstruction of justice—as in the case of the six who were found guilty last July, for hiding federal informant Anthony Brown from his FBI handlers, and the case of James Sexton who was found guilty of similar charges in September 2014, after being acquitted of those same charges earlier in the year.

Then in February 2014, two more LASD deputies were indicted, also for jail brutality, specifically for allegedly using illegal force against an inmate and then covering up the incident with false reports that resulted in a false prosecution initiated against the victim.

(In addition to the case against the Khounthavongs, the other outlier case involved a deputy named Richard White Piquette, who was charged with illegally building and possessing an assault rifle. Piquette took a deal and pled guilty to building the rifle in April of 2014.)

The alleged mortgage scam involving the Khounthavong brothers was reportedly discovered by accident when the feds were looking into one of the brothers who was stationed at the department’s chronically-troubled Men’s Central Jail. According to those with knowledge of the case, the FBI reportedly hoped the MCJ Khounthavong would help them out with their investigation into deputy brutality at the facility where he worked, but the deputy reportedly proved unwilling or unable to give the feds what they wanted.

Dominic Cantalupo, attorney for one of the other brothers, told Victoria Kim of the LA Times that the fraud charges were brought after the MCJ Khounthavong refused to cooperate with investigators and give information on other deputies in the jail investigation.

It is difficult to say what Judge Real thought about the rumored provenance of the case against the Khounthavong brothers. Yet, at the end of the unexpectedly truncated court proceedings, he reportedly asked federal prosecutor Carter, “Where was this coming from if the banks weren’t harmed? Where was it coming from?”

Posted in FBI, LA County Jail, LASD, U.S. Attorney | 7 Comments »

Happy President’s Day – Check Back for More News Tonight

February 16th, 2015 by Celeste Fremon

Posted in Life in general | No Comments »

New Bureau of Children’s Justice, the CORRECTIONS Act, $8.3M for Wrongful Death in Jail, and Jefferson High Scheduling Update

February 13th, 2015 by Taylor Walker

NEW CALIFORNIA DOJ BUREAU TO TACKLE CHILDHOOD TRAUMA, SEX TRAFFICKING, AND OTHER ISSUES FOSTER KIDS FACE

On Thursday, California Attorney General Kamala Harris announced the launch of the Bureau of Children’s Justice.

The bureau will target childhood trauma, juvenile justice, sex trafficking, truancy (and other education issues), with a particular emphasis on kids in foster care.

In a letter sent to officials in each California county, the attorney general announced the new bureau and passed along a list of the rights of foster kids, and a reminder of their duty to protect those rights.

The CA Department of Justice was also selected (one of only three state departments) to participate in the Defending Childhood initiative, a federal effort targeting childhood trauma from exposure to violence.

Here’s a clip from AG Harris’ announcement:

The Bureau will enforce criminal and civil laws to hold those who prey on children accountable; work with a range of local, state, and national stakeholders to increase support for vulnerable children to prevent bad outcomes; and identify and pursue improvements to policies impacting children.

“We simply cannot let down our most vulnerable children today, then lock them up tomorrow and act surprised,” said Attorney General Harris. “The Bureau of Children’s Justice will continue our smart on crime approach by addressing the root causes of crime, including our broken foster care system, and making certain that California’s children receive full protection under the law and equal opportunities to succeed. One of the Bureau’s first orders of business will be to look at enforcement gaps in the foster care system and ensure that government agencies are held accountable to those entrusted in their care.”

[SNIP]

Attorney General Harris also announced that the California Department of Justice was one of just three state agencies accepted by the U.S. Department of Justice to be part of its national Defending Childhood Initiative. Through this initiative, California will work to improve outcomes for children exposed to trauma by ensuring that at-risk children are screened for exposure to violence at school, when they visit a pediatrician, or when they become involved with child welfare and juvenile justice systems.

“I commend Attorney General Harris for taking this important step to protect the youngest and most vulnerable Californians,” said Dr. Robert K. Ross, President and CEO, The California Endowment. “The Bureau of Children’s Justice will watch over our state’s legal system and guarantee greater protection for our children, safeguarding their physical, social and emotional health and helping to ensure that everyone has the opportunity to grow up healthy and safe.”

And here’s who will run the bureau:

The Bureau will be staffed by attorneys and experts on legal issues impacting children, including civil rights, education, consumer protection, nonprofit charities, child welfare, privacy and identity theft, fraud, and human trafficking.


FED. CRIMINAL JUSTICE REFORM BILL WITH BEST CHANCE OF PASSING IS UNFAIR TO MINORITIES, BUT BETTER THAN NOTHING

The CORRECTIONS Act, introduced Tuesday by Senators John Cornyn (R-TX) and Sheldon Whitehouse (D-RI), would allow federal inmates viewed as low-risk to take part in education programs and prison jobs that would take time off their sentences. The problem is that, because of who the bill excludes and how risk-assessment tools decide how much time to shave off, it will likely mostly help white people and people doing time for white-collar crimes.

While it seemed that the bipartisan criminal justice reform would have big potential during the 114th Congress, CORRECTIONS may be the only criminal justice reform bill that has a chance of making it through Congress and past the Senate Judiciary Committee and it’s non-prison-reform-minded chairman Sen. Chuck Grassley (R-IA).

Vox’s Dara Lind explains the bill’s exclusions and risk assessment, and why the CORRECTIONS Act will disproportionately serve white people. Here are some clips:

The bill excludes any inmate with a “criminal history” that places them in the highest category under the federal sentencing guidelines. The problem is that someone gets placed in that category automatically if they’re labeled a “career offender,” which just means three convictions at either the state or federal level for drug or violent crimes. Most “career offenders,” according to the US Sentencing Commission, are African Americans — simply because it’s easier to arrest and prosecute them for “offenses that take place in open-air drug markets, which are most often found in impoverished minority neighborhoods… [This] suggests that African-Americans have a higher risk of conviction for a drug trafficking crime than do similar White drug traffickers.” In 2000, 69 percent of newly-sentenced “career offenders” were black. (Interestingly, only 17 percent were Hispanic.)

[SNIP]

Anyone convicted of participating in a “continuing criminal enterprise.” This is another label that’s typically applied to drug offenders — anyone who’s an “organizer, supervisor or manager” of a group of five or more people dealing drugs can be hit with a conviction for a “career criminal enterprise.” The statute isn’t used that often — only 239 people were convicted under it from 2006 to 2013, according to data from the US Sentencing Commission. But 77 percent of the time, it was used against black or Hispanic defendants.

[SNIP]

…how does the government determine how likely someone is to recidivate? The bill tells the federal government to come up with a risk assessment tool. These tests are used in several states and in federal court to figure out how best to manage an inmate’s case — or to determine whether someone should be put on probation instead of prison to begin with. But most states shy away from using them to determine the length of an inmate’s sentence.

And there’s a reason for that. Some of the factors used to determine recidivism risk are “dynamic” — they’re factors that an individual can change over time. But others are “static” factors: they say more about the environment where an inmate lives, or where he grew up, than about his own behavior.

One of the major risk-assessment tools treats drug use, low education level, and frequent changes in residence as factors that put someone at higher risk to recidivate. Even factors that look fair on the face of it, like the age an inmate was when he was arrested for the first time, can just mean that the inmate lived in a neighborhood where teenagers (or younger) were under police suspicion.


RECORD-BREAKING WRONGFUL DEATH SETTLEMENT FOR INMATE WHO DIED AFTER BEING TASERED DURING ALCOHOL WITHDRAWALS

The Alameda County Board of Supervisors and a jail health care company will pay $8.3 million to the children of Martin Harrison, an Alameda County inmate who died after being tasered by ten deputies. The sum sets the record for the largest wrongful death settlement in a civil rights case in state history, according to the Harrison family’s attorneys. A separate $1 million was awarded to one of Harrison’s kids who was still a minor.

The family’s attorneys said that although Harrison informed the LVN that he had a history of alcohol withdrawal, he died during the violent encounter with deputies while suffering from severe alcohol withdrawal.

Harrison was stopped for jaywalking and arrested for failing to appear for his DUI court date.

As part of the settlement, the for-profit Corazon Health, Inc. will change the practice of hiring Licensed Vocational Nurses instead of Registered Nurses (as state law requires) to perform inmate medical intakes.

Contra Costa Times’ Malaika Fraley has the story. Here’s a clip:

Harrison, 50, died in August 2010 two days after be was beaten and Tased by 10 deputies at the Santa Rita Jail. His children’s attorneys say Harrison was hallucinating from a severe form of alcohol withdrawal known as delirium tremens for which he should have been hospitalized, and he never fought back. He was in jail on a warrant for failing to appear in court in a DUI case after being arrested for jaywalking.

Corizon is one of the largest for-profit correctional health care providers in the country and holds a $210 million contract to provide health care services in Alameda County’s Santa Rita and Glenn Dyer jails. Under state law, the company is required to have registered nurses (RNs) assess inmates upon intake, but Harrison’s medical screening was done by an unsupervised licensed vocational nurse (LVN), Sherwin said.

“If the deputies had been trained, and if Corizon had had an RN instead of an LVN do the intake medical assessment then we all would not be here today,” Sherwin said at a news conference attended by Harrison’s family.

Corizon Health said that Harrison did not alert the LVN that he had a history of alcohol withdrawal, while the plaintiff’s attorneys said that he did.

(Alameda is another municipality that might want to enter the MacArthur Safety and Justice Challenge.)


PROGRESS MADE TOWARD FIXING JEFFERSON HIGH’S SCHEDULING CRISIS

Last October, an Alameda County Superior Court judge issued a Temporary Restraining Order demanding the California Department of Education help the LAUSD fix scheduling issues at LA’s Thomas Jefferson High School that gave kids filler classes and sent them home early, throwing many off the track to graduation.

Four months later, repairs have been made to the data system, more teachers have been hired, classes have been added, and the number of students in the inaccurate or non-instructive classes has dropped. But there is still much to be done.

Adolpho Guzman-Lopez has a welcome update on the Jefferson scheduling debacle. Here’s a clip:

Castillo was one of 150 students who were enrolled at the start of the school year in “home” periods, meaning they were sent home early. Others were assigned “service” periods where students helped as aides in offices and classrooms, but received no academic instruction. Students were enrolled in non-academic classes because the school didn’t have courses that they hadn’t already taken.

Other students spent weeks in the school’s auditorium, cafeteria and library waiting for their schedules to be fixed. Advanced Placement classes were all scheduled at the same time, limiting students’ ability to take higher level courses. Teachers began taking attendance by hand.

The litany of MiSiS-related problems went on for weeks.

At one point Jefferson students, fed up with the situation, staged a peaceful on-campus protest.

[SNIP]

David Sapp, a lawyer for the students who sued to fix the problems, is happy with the improvements at Jefferson, but not with the way the school was forced to make changes.

“We shouldn’t put the burden on students to go out and find lawyers to have to go and get a court order to fix this,” he said.

Not all of the school’s problems are solved. Foote says 90 students are still sent home early because of scheduling problems. As of last month L.A. Unified reported that MiSiS continued to have problems accurately counting English learner students and giving parents access to their child’s data and not other students.

Posted in Department of Justice, Education, Foster Care, juvenile justice, Kamala Harris, LAUSD, racial justice, Trauma | 3 Comments »

Are American Jails Being Misused? A New Report Says YES…(And How Do LA Jails Rate?)

February 12th, 2015 by Celeste Fremon


Every year there are nearly 12 million admissions to local jails in the U.S.
—almost 20 times the number of admissions to the nation’s state and federal prisons.

Yet while Americans seem finally to be having a sober conversation about the collateral damage done by our disastrously outsized prison systems, comparitively little attention has been paid to the rapid growth of the nation’s jails.

Now a new report from the Vera Institute of Justice looks at the key policies that have contributed to the rise in the use of jails, and the impact of jail incarceration on individuals, families, and communities.

The report, called Incarceration’s Front Door: The Misuse of Jails in America, was supported by the John D. and Catherine T. MacArthur Foundation as part of MacArthur’s just announced $75 million Safety and Justice Challenge initiative, through which the Foundation will fund up to 20 jurisdictions throughout the country to rigorously examine how well or poorly their local jails are being used. Then out of the 20, 10 entries will be selected and given up to $2 million a year to design and implement plans for using “innovative, collaborative, and evidence-based solutions” to reduce the use of jail incarceration without compromising public safety.

The Safety and Justice challenge is competitive and, on Wednesday, MacArthur released its request for proposals [RFP], for the first round of the competition, entries for which are due March 31.

“We’ve had expressions of interest from a number of counties in California,” Laurie Garduque, the director of Justice Reform for MacArthur told me. “I expect we’ll get applications from some of those jurisdictions—especially in light of the impact of realignment and other legislation, that has focused more attention on what is happening at a county level with the local jails”

As to whether anyone had expressed interest from Los Angeles County, the MacArthur and the Vera people I spoke with said they hadn’t yet talked directly to any of the main players about the challenge, but that they hoped LA would apply.


FACTORS AFFECTING OVER USE OF JAILS

The Vera report points out that jails serve an important function in local justice systems, both for short term incarceration, and to hold those charged with crimes who are either deemed too dangerous to release pending trial, or who are considered flight risks unlikely to turn up for trial.

According to Vera, however, the above categories no longer represent what jails primarily do or whom they hold. Instead, Vera reported, three out of five people in jail are unconvicted of any crime, yet are simply too poor to post even a low bail in order to be released while their cases are being processed.

For instance, in 2013 in New York City, more than 50% of the jail inmates who were held until their cases were settled, stayed in jail solely because they couldn’t afford bail of $2,500 or less. Most of these inmates were arrested on misdemeanor cases.

All of this time spent in jail purely for fiscal reasons, the report points out, has collateral consequences in terms of lost wages, lost jobs, loss of a place to live, and loss of time spent with spouses and children, producing further harm and destabilization of those incarcerated and, by extension, their families and communities.

Moreover, nearly 75 percent of both pretrial detainees and sentenced offenders are in jail for nonviolent traffic, property, drug, or public order offenses—some of which could be more successfully handled through diversion programs that utilize community based services. “Underlying the behavior that lands people in jail,” write the Vera authors, “there is often a history of substance abuse, mental illness, poverty, failure in school, and homelessness.”

(The report notes that, in Los Angeles County, they found that the single largest group booked into the jail system consisted of people charged with traffic and vehicular offenses.)

Vera also points to success stories, like that of Portland, Oregon, where every police officer receives training in how to respond to a suspect who appears to suffer from mental illness or is under the influence of drugs or alcohol. “For those people whose mental illness or substance use disorder is driving their repeated encounters with law enforcement—-typically as suspects in drug or property crimes—-the department participates in a Service Coordination Team that offers treatment in lieu of detention.” The strategy worked, both in terms of public safety, and fiscally. Between 2008 and 2010, the team saved the county nearly $16 million in jail costs alone.


WHAT ABOUT LA?

Interestingly, in 2011 the Vera Institute delivered a 289-page jails study commissioned by Los Angeles county’s board of supervisors. The report was titled the Los Angeles County Jail Overcrowding Reduction Project and, as its name suggests, it was focused on the LA county jail system specifically. The two-year Vera analysis (which was first completed in 2008, then revised in Sept. 2011) was exhaustively thorough, and yielded 39 detailed recommendations for LA, many focusing on things like pre-trial release programs and more effective responses to the mentally ill. Few of those recommendations, however, seemed to be included when, last spring, the board ordered up its $2 billion jail replacement and building plan.

More recently, spurred by the leadership of district attorney Jackie Lacey and by escalating threats from the civil rights division of the Department of Justice, LA has finally taken some heartening steps in the direction of a comprehensive community diversion program for the non-dangerous mentally ill who, at present, cycle in an out of LA county jail with grinding regularity.

Yet pre-trial release has been pretty much a non-starter.

So now that we have a new reform-minded sheriff, two new supervisors who are unhappy at the size of the county’s jail population, and a district attorney who continues to demonstrate her engagement with reform, will LA County fill out an application for the MacArthur Safety and Justice challenge?

“I think it’s a real opportunity,” said Nancy Fishman, one of the authors of the new 54-page report. “We’re all just at the beginning of what will be a massive outreach to counties, Los Angeles included. And we hope LA applies.”

More on that as we know it.

Posted in District Attorney, jail, Jim McDonnell, LA County Board of Supervisors, LA County Jail, Mental Illness, pretrial detention/release | 4 Comments »

Does California Need an Innocence Commission?…ABA Sez No More LWOP 4 KIDS….Confronting Lynching…MacArthur Puts Up $$$ to Reform U.S. Jails

February 11th, 2015 by Celeste Fremon


DOES CALIFORNIA NEED AN INNOCENCE COMMISSION?

North Carolina is the only state in the union that has an innocence commission, a neutral government agency that investigates claims of wrongful convictions.

The rest of the 49 states, California included, depend on the work of nonprofits, like the Innocence Project, along with certain activist lawyers who give a percentage of their time to working on innocence cases.

According to the National Registry of Exonerations compiled by the University of Michigan, since 1989, there have been 1,543 exonerations in the U.S. In 2012, California led the nation in innocence cases, with 119 exonerations since ’89. In 2013, Texas moved into first place, and remained in the top spot for 2014.

But whether or not we win first prize for exonerees in any given year, our populous state—with its massive criminal justice system–continues to make its share of tragic legal mistakes.

So do we need our own innocence commission?

The Atlantic’s Matt Ford writes about Joseph Sledge who spent 39 years in a North Carolina prison for a murder he didn’t commit. The state’s innocence commission got him set free at the end of last month, on January 23, 2015.

“In 49 other states, Joseph Sledge would still be in prison,” Ford writes.

Here are some clips from Ford’s story.

The North Carolina Innocence Inquiry Commission is the first full-time state agency dedicated to investigating post-conviction claims of actual innocence. “The innocence commission is the only one of its kind in the nation,” the executive director, Kendra Montgomery, told me. Other states have nonprofit organizations like the Innocence Project or think tanks with similar names, “but we’re the only state that has a government agency that is neutral to investigate these cases,” she said. 1,642 claims have been submitted to the commission since its creation in 2006; Sledge’s case marked the eighth exoneration.

Because it is a state agency, the commission has powers that other institutions lack. Investigators can compel testimony with subpoenas, for example, and gather other kinds of evidence for their cases. “The commission has the unique power, because we are a neutral, fact-finding state agency by statute, to collect and test physical evidence in criminal cases,” said Sharon Stellato, who led the commission’s investigation of Sledge. This ability can be decisive: In at least 18 cases, commission investigators were able to locate evidence that had been officially declared lost or missing by other state agencies. Three of those cases resulted in exonerations, while some others confirmed the convictions.

[SNIP]

Exonerations, which were once exceedingly rare, have become regular features of the American justice system. The National Registry of Exonerations tallied 125 cases in 2014, the highest annual total so far. The group records 1,535 exonerations nationwide since records began in 1989. Of the 125 wrongful convictions thrown out in 2014, 33 came from Harris County, Texas after faulty testing procedures were uncovered there. Even without Harris County, however, the number of exonerations last year still outnumbered those in preceding years.

125 exonerations might seem paltry compared to the estimated 1 million felony convictions per year, but the number of wrongful convictions is likely far higher. Many jurisdictions don’t devote the same level of resources towards exonerations that North Carolina does, and even then, the process can be achingly slow. For a justice system that exalts due process and the presumption of innocence, any wrongful conviction represents a serious breakdown of justice. Even a handful of high-profile wrongful convictions can ripple throughout the public consciousness, undermining confidence in the system. “The country is having to psychically cope with conclusive evidence that we make, with some regularity, errors in criminal trial outcomes,” Tate said.

Investigating possible wrongful convictions, especially those that don’t involve DNA evidence, is a difficult and time-consuming matter. Even so, exonerations, as Ford writes above, are becoming a regular feature of our justice system.

But how many innocent people are still locked up who, for one reason or another, have not been able to get the attention of a willing lawyer, or non-profit?

The question becomes even more pressing when those convicted have been sentenced to die by the state’s hand.

According to a 2014 report published by the National Academy of Sciences, since 1973, when the first death penalty laws now in effect in the United States were enacted, 143 death-sentenced defendants have been exonerated.

To put it another way, since the death penalty was reinstated in the U.S. in 1978, for every ten whom we executed there was one death row exoneration. Not a comforting set of numbers.

Oh, and the great majority of those death row innocence cases—78—were black men.

PS: One of the arguments against a state commission is the expense. However proponents of an innocence commission counter that keeping innocent people locked up indefinitely is also a very high cost endeavor, both fiscally and morally.


AMERICAN BAR ASSOCIATION VOTES TO END TO LIFE-WITHOUT-PAROLE FOR CHILDREN

On Monday, the American Bar Association, passed a strongly-worded resolution calling for an end to the practice of sentencing children to life-in-prison-without-parole and urging “meaningful periodic opportunities for release.”

The ABA is the nation’s largest membership organization for lawyers, representing 400,000 prosecutors, defense attorneys, judges, litigators and others.

“With the adoption of Resolution 107C, the American Bar Association has sent a clear message to the legal community and policymakers across the country that children should never be sentenced to die in prison,” said ABA President, William C. Hubbard.

Hubbard called the practice of juvie LWOP “a severe violation of human rights.” He added, “The ABA applauds those states that have already taken steps to reform their laws and urges other states to pass similar reforms as soon as practicable.”

The text of the resolution itself uses even more forceful language. Here’s an excerpt:

The United States stands alone in permitting life without parole for juveniles. It is the only country other than Somalia that has not yet ratified the Convention on the Rights of the Child, which prohibits life without parole sentences for youth. The legal developments in [Supreme Court rulings] Graham and Miller, along with the advances in brain and behavioral development science showing how children are fundamentally different from adults… support a conclusion that it is inappropriate to decide at the time of sentencing that life without parole is an appropriate sentence for a juvenile offender. This resolution encourages jurisdictions to go one step further than Miller and to join the policy position of the rest of the world by eliminating mandatory life without parole sentences for youthful offenders.


THE NEED TO TALK ABOUT LYNCHING IN AMERICA

There were 3959 lynchings of black people in 12 southern states between the end of reconstruction in 1877, and 1950, according to a report released this week by the Equal Justice Initiative (EJI), the non-profit law and advocacy firm founded by attorney, Bryan Stevenson. (We’ve reported on Stevenson several times in the past.)

That number is at least 700 more lynchings than previous research has reported.

EJI and Stevenson maintain that in order to begin to cure the racial inequality that exists in the American criminal justice system, it is essential to have a conversation about the racial ills and profound trauma of the past, lynching included.

This is from the introduction to the report:

Between the Civil War and World War II, thousands of African Americans were lynched in the United States. Lynchings were violent and public acts of torture that traumatized black people throughout the country and were largely tolerated by state and federal officials. These lynchings were terrorism. “Terror lynchings” peaked between 1880 and 1940 and claimed the lives of African American men, women, and children who were forced to endure the fear, humiliation, and barbarity of this widespread phenomenon unaided.

Lynching profoundly impacted race relations in America and shaped the geographic, political, social, and economic conditions of African Americans in ways that are still evident today. Terror lynchings fueled the mass migration of millions of black people from the South into urban ghettos in the North and West during the first half of the twentieth century. Lynching created a fearful environment where racial subordination and segregation was maintained with limited resistance for decades. Most critically, lynching reinforced a legacy of racial inequality that has never been adequately addressed in America. The administra- tion of criminal justice especially is tangled with the history of lynching in profound ways that continue to contaminate the integrity and fairness of the justice system.

This report begins a necessary conversation to confront the injustice, inequality, anguish, and suffering that racial terror and violence created.

As Stevenson notes, Germany and South Africa has have each had their versions of truth and reconciliation in order to heal. The U.S. has not.

The NY Times’ Campbell Robertson also has a story on the release of the report, which you can find here.


MAC ARTHUR FOUNDATION LAUNCHES $75 MILLION INITIATIVE TO REDUCE USE OF AMERICA’S JAILS

On Tuesday, the MacArthur foundation MacArthur announced a five-year, $75 million investment that “seeks to reduce over-incarceration by changing the way America thinks about and uses jails.” (The John D. and Catherine C. MacArthur Foundation is one of the nation’s largest independent foundations.)

The plan that MacArthur is calling its “Safety and Justice Challenge” hopes to support and reward cities and counties across the country “seeking to create fairer, more effective local justice systems that improve public safety, save taxpayer money, and lead to better social outcomes.”

The new initiative is based on a MacArthur-supported report released Wednesday by the Vera Institute, called Incarceration’s Front Door: the Misuse of Jails in America.

[More on the Vera report tomorrow.]

Julia Stasch, MacArthur’s President summed up the foundation’s thinking: “For too long America has incarcerated too many people unnecessarily, spending too much money without improving public safety,” she said. “Jails are where our nation’s incarceration problem begins…”

Okay, MacArthur, how about starting in Los Angeles, the city with the nation’s largest jail system, thus the ideal test case.

Posted in Innocence, jail, juvenile justice, LWOP Kids, race, race and class, racial justice | No Comments »

Erroneous Convictions for Less Serious Crimes….SCOTUS, Alabama, and Gay Marriage….Loretta Lynch….and Efforts to Reduce Racial Tension Between Cops and Communities

February 10th, 2015 by Taylor Walker

WRONGFUL CONVICTIONS FOR LOWER-LEVEL CRIMES FALL THROUGH THE CRACKS

The Crime Report’s David Krajicek has an outstanding longread about the lower-priority wrongful convictions that fly under the radar while innocence groups zero in on people serving life sentences, or those on death row.

While no one truly knows the scope of wrongful convictions in America, experts feel certain that each year, thousands of people receive undeserved convictions for lower-level crimes, like robbery and assault, without ever being exonerated. The wrongfully convicted in this category will likely take plea deals, serve their time, and forgo hiring an expensive lawyer to fight for their exculpation.

And, when innocence groups win exonerations for murder (and rape) convictions, it is, more often than not, through new DNA testing. Unfortunately, DNA evidence is rarely collected or tested for more minor crimes. It makes more sense for lifers and those on death row to be given priority, not just because of the severity of the punishment, but because it usually takes more than five years to prove innocence. People convicted of lower-level offenses generally will not serve that much time behind bars.

Here’s the opening of Krajicek’s multilayered project (we recommend reading all of the side stories, if you can):

When Rachel Jernigan was falsely accused of robbing a Gilbert, Ariz., bank 15 years ago, she expected the American criminal justice system to do the right thing.

“They tried to get me to plead guilty,” Jernigan says. “They told me they were going to give me 27 years (in prison). But I said I’m not going to plead guilty for something I didn’t do. I really believed I was going to come home from my trial. I was shocked when the jury found me guilty.”

Sentenced to 14 years, she spent more than seven years in prison before the real robber was identified by Jernigan’s determination and a fluke twist.

“If it can happen to me,” Jernigan says, “it can happen to anyone.”

And it does.

In a sense, Jernigan was a lucky exception.

Experts believe that thousands of people are wrongfully convicted each year in America for the types of crimes that Jernigan was charged with—second-tier felonies like robbery, burglary and assault. And when misdemeanors and driving infractions are included, the number of flawed convictions increases exponentially.

Yet only a tiny fraction of these cases are ever exposed. The cadre of criminologists and law professors who study wrongful convictions regard these missing exonerations as one of the great mysteries of American criminal justice.

Many believe the victims are likely the low-hanging fruit of the justice machine, poor men and women who don’t have the wherewithal to pursue justice.

They likely do what Jernigan was not willing to do: suck it up and accept a plea deal.

“My own somewhat unstudied, seat-of-the-pants estimation is that a lot of working-class folks are probably pretty cynical about the world,” says Marvin Zalman of Wayne State University, a leading wrongful convictions scholar. “And I think that when they get convicted of relatively minor stuff where they didn’t do anything wrong, they just chalk it up to a bad experience, do their time, and simply move on.”

Most who are convicted of minor crimes are unlikely to pony up a retainer—typically $25,000 or much more—to hire a lawyer to seek justice. Nor can they expect help from the community of innocence advocates, who focus on cases where DNA can provide irrefutable evidence of innocence—usually homicides and rapes.

“Unfortunately, the Innocence Project would never take cases like these,” says Mitchell Beers, a South Florida criminal defense attorney who won an assault exoneration in 2006.

About 6,000 people a year ask for help from the Innocence Project, a network of about 65 largely autonomous organizations. It has about 250 active cases at any given time, and nearly all of them focus on DNA evidence, says spokesman Paul Cates.

“We are still very committed to taking cases where DNA evidence is available to prove innocence,” says Cates. “That might change at some point down the road, but the thinking is that DNA is still kind of the gold standard in proving innocence.”

The Innocence Project has had a role in 325 exonerations since it was founded in 1992; just eight of them did not involve DNA cases: four home invasions, three car carjackings and one robbery…

Biological evidence is collected in just one of five crimes, nearly all of them murders or rapes. A 2010 study for the National Institute of Justice said fewer than 10 percent cent of assaults, burglaries and robberies had physical evidence examined in crime labs, compared with 81 percent for murders.

So how vast is the trove of undiscovered wrongful convictions? No one knows for sure, because there is little empirical evidence. Zalman calls wrongful convictions “one of the most remarkably loose areas of analysis in the criminal justice field.”

As Sam Gross, a University of Michigan law professor and editor of the National Registry of Exonerations, has written, “The fundamental problem with false convictions is also one of their defining features: they are hidden from view…”


US SUPREME COURT GIVES GO AHEAD FOR GAY MARRIAGES IN ALABAMA, POINTS TO FUTURE HIGH COURT DECISION

In a meaningful 7-2 ruling that shut down Alabama Supreme Court Chief Justice Roy Moore’s eleventh-hour attempt to suspend gay marriage for Alabamians, the US Supreme Court may have indicated which way the justices will rule when they hear four gay marriage cases this spring.

The New Yorker’s Amy Davidsonhas the story. Here’s a clip:

The Supreme Court has stopped the efforts of Justice Roy Moore, the chief judge of the Alabama Supreme Court, to stand in the wedding aisle and block the marriages of same-sex couples in his state. There was no case on marriage before Moore; he had intervened, loudly, when U.S. District Judge Callie V. S. Granade, whose courtroom is in Mobile, ruled that the state’s anti-marriage laws were unconstitutional. Her ruling was stayed, but only until Monday morning. That, apparently, made Moore angry. First, he said that probate judges didn’t have to abide by the federal decision if they didn’t want to—a remarkable stance in itself. Then, when it seemed that judges might not turn away loving couples, he issued an order declaring that they were forbidden to respect the decision. The Alabama Attorney General asked for an emergency stay from the Supreme Court, saying that the state would be irreparably harmed if couples went ahead and married. The Court turned them down. By noon on Monday, news reports were full of pictures of people holding bouquets, bearing rings, and kissing their new spouses. [Update, 6:30 P.M., Monday: By the end of the business day, probate judges in more than a dozen of Alabama’s sixty-seven counties had issued same-sex marriage licenses; many others, though, denied them, only took applications, or closed their doors entirely.]

The Supreme Court’s decision was important on a number of counts. First, for the families of Alabama that have been denied the protection and respect that comes with marriage. Second, it is a strong sign that the Court, which is set to hear arguments this spring on whether there is a fifty-state constitutional right to same-sex marriage, knows where it is headed, and it is in the direction of equality. (The order was accompanied by a dissent signed only by Justices Antonin Scalia and Clarence Thomas, whose main argument was that the Court should allow states to wait for its final ruling on “this important constitutional question.”) Third, it made it clear that there is a definite federal interest in the marriage issue.


BILLS DRAFTED ACROSS THE NATION AFTER DEATHS OF UNARMED BLACK MEN

In the aftermath of a spate of controversial killings by police officers of unarmed black men (Michael Brown, Eric Garner, Ezell Ford, and 12-year-old Tamir Rice), bills have cropped up in at least thirteen states to increase law enforcement transparency and improve police-community relations. Efforts include bipartisan bills to put body cameras on cops and proposed changes to the way deaths at the hands of cops are recorded.

The Washington Post’s Reid Wilson has more on the issue. Here’s a clip:

“There is a concrete coherent legislative agenda that we are pushing for,” said Cornell Brooks, president and chief executive of the NAACP. “We’ve been doing this from state capital to state capital, as well as here in Washington, D.C.”

Some of the proposed responses have bipartisan support. In other cases, familiar partisan divides between Republicans and Democrats, and civil rights groups and police organizations, are emerging and slowing down legislative action.

Those partisan fissures are exacerbated by events beyond Ferguson, Staten Island and Cleveland. In Albuquerque, N.M., two officers were charged last month with first-degree murder in the 2014 shooting of a homeless, mentally ill man who had been camping illegally. In Springfield, Mo., a police officer was shot in the head while on patrol; he suffered career-ending injuries.

“Our citizens deserve to be and feel safe, and our law enforcement deserve our respect and support,” said Missouri Rep. Lincoln Hough (R). “I say all that to illustrate the complexity of these issues. There is not a one size fits all approach to this issue.”

Brooks and other civil rights leaders have vowed 2015 will be a year of legislative strategy, pressuring statehouses to pass state-level laws concerning special prosecutors and grand juries while pushing for broader legislative steps in Washington D.C.

Body camera legislation is at the forefront of that push. Civil rights groups like the NAACP, The Advancement Project and the American Civil Liberties Union are behind many of the body camera proposals, and the Obama administration has allocated $263 million for a three-year program to expand training for local police departments, including $75 million that would purchase 50,000 cameras through a matching program.


IN THE SAME VEIN…US AG NOMINEE LORETTA LYNCH POISED TO TAKE ON POLICE-COMMUNITY RELATIONS

US Attorney General nominee Loretta Lynch, will be the first black female AG if confirmed, and says she will focus on mending relations and calming racial tensions between law enforcement agencies and their communities.

The Hill’s Tim Devaney has more on the issue and why advocates and lawmakers believe Loretta is suited to the task. Here’s a clip:

As a black woman with strong law-and-order credentials, Lynch, observers say, would be uniquely positioned to ease strained relations between police and minority communities they serve.

Lynch’s reputation for being a hard-nosed, impartial prosecutor has won her wide support from civil rights advocates, law enforcement, Democrats and even some Republicans.

This will serve her well as she seeks to “resolve the tensions” between law enforcement and the African American community, said Sen. Patrick Leahy, the top Democrat on the Judiciary Committee.

“She has prosecuted those who have committed crimes against police officers, as well as police officers who have committed crimes,” Leahy (D-Vt.) said during her confirmation hearing.

Lynch has earned the trust of civil rights groups by pursing cases of police brutality.

During her time as a federal prosecutor in New York, Lynch went after a police officer accused of sodomizing a Haitian immigrant with a stick in a precinct bathroom.

More recently, she was assigned to investigate the Eric Garner case.

As the “face of law enforcement,” Lynch will have the opportunity to improve public perceptions of police, said Hilary Shelton, Washington bureau director of the National Association for the Advancement of Colored People…

Lynch promised to “draw all voices” into the conversation about reforming law enforcement and cracking down on cases of police misconduct.

“She has to be a person who brings both sides together, police and the community,” Rep. Elijah Cummings (D-Md.), former chairman of the Congressional Black Caucus, told The Hill.

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