A book-length report released on Monday by a special blue ribbon panel found that the San Francisco Police Department was virtually run by its police union, resisted efforts by the panel to gather data, and contained a culture that actively threatened whistleblowers who attempted to flag wrong doing.
Officials at the union in question, the San Francisco Police Officers Association or POA, were not at all pleased by the report, and promptly launched an attack on San Francisco District Attorney George Gascón, who originally triggered the report’s existence.
Specifically, in May 2015, Gascón caused the creation of the “Blue Ribbon Panel on Transparency, Accountability, and Fairness in Law Enforcement,” after it came to light that fourteen members of the the San Francisco’s police department had exchanged a series of loathsome racist and homophobic text messages.
Although he now serves as district attorney, Gascón is very familiar with the challenges of policing. Prior to assuming the job as SF DA, he was the chief of the SFPD. And, before being appointed as San Francisco’s top cop, Gascón was hired to reform the then-troubled Mesa, Arizona, police department. Previous to Mesa, Gascón spent more than 20 years at the Los Angeles Police Department, where he last served as First Assistant Chief under Bill Bratton, which meant he ran the patrol side of the LAPD on a day to day basis during the period when that department was laboring under a federal consent decree and was still reeling from Rampart and related scandals.
He is also an attorney, and was the first cop in the nation to move laterally into the job of DA.
When Gascón created the Blue Ribbon Panel,as its website explains, the panel was specifically tasked with answering the questions raised by SF’s texting scandal—namely: Was the racial and homophobic bias demonstrated by the offensive texts a reflection of institutionalized bias within the SFPD and, if so, to what extent?
Once it was created the panel also took on two related goals:
First, the three judges who made up the panel were asked to review almost 4,000 police reports authored by the texting scandal cops to determine whether their bias affected their policing.
And second, the panel’s law firm working groups were tasked with examining the extent to which bias was institutionalized within the SFPD’s policies and practices in general, and to “recommend solutions to address any bias or threat of bias they discovered.”
The results of this broader inquiry were released in a 239-page final report form on Monday. The release comes at a time when the city is still looking for a new chief of police and, as has been true elsewhere in the nation, public concern over officer shootings has grown increasingly heated.
(The report was released in an earlier, unfinished version this spring.)
The lenthy final report (which you can find here) includes 72 findings and 81 recommendations. It is critical of a number of department policies and, as mentioned earlier, points to the department’s union, the POA, as virtually running the department, and standing in the way of substantive reform.
“They are setting the tone in the department,” said one panel member, former Santa Clara County Judge, LaDoris Cordell.
And, while the panel members and the legal teams found evidence of bias, they also said they that the department’s lack of transparency, code of silence, and failure to keep reliable data made it impossible to do an accurate analysis of many of the issues they were mandated to explore.
The report also features many constructive recommendations, and makes a point of praising the fine and dedicated officers that make up the majority of the department.
Immediately after the report’s release, the POA president Martin Halloran, who had objected to the panel’s formation, denounced it and it’s report as a “Kangaroo Court,” set up by a DA with a bias against police, then equated the report’s release with the murder of police officers in Dallas:
“On Thursday, a sniper in Dallas took aim at police officers and murdered five in cold blood,” Halloran said in a written statement. “Today, George Gascón is taking aim at police officers in San Francisco with half-truths and distortions.”
The report is scheduled to be forwarded to the U.S. Department of Justice, which is conducting a review of the SFPD’s policies.
For more on the report and its findings, Alex Emslie at KQED has a good story that is worth your time.
POST SCRIPT: An interesting side note on the panel and the report is the fact that, one of the panel’s three judges is Dickran Tevrizian, a retired U.S. District Court Judge, who was also one of the seven members of LA’s Citizen’s Commission on Jail Violence, which delved into problems of inmate abuse by Los Angeles County Sheriff’s deputies.)
AUDIT OF USE-OF-FORCE INVESTIGATIONS INSIDE LA COUNTY’S JAILS FINDS MUCH PROGRESS, WITH MORE STILL NEEDED
In a first ever outside audit of the reformed process for investigating complaints by inmates alleging improper use of force inside Los Angeles County’s various jail facilities, Inspector General Max Huntsman gave the LA County Sheriff’s Department fairly good grades on its performance, with 12 areas that could use improvement.
The report, which was presented to a gathering of county officials on Wednesday, covered a period of from January 1, 2013, through September 30, 2014.
It should be noted that, this particular OIG’s report doesn’t look at the outcomes of the force complaints. Nor does it follow behind the department’s investigations to see if the the conclusions reached seem—well—correct. At this point, the OIG merely looked at methodology, to see if all the proper marks are being hit in the new and improved process of investigating force complaints, and, if not, making recommendations as to what ought to be done about it.
The audit looked at 14 “Objectives,” and found that, out of the randomly selected sampling of 57 investigations of force complaints, the majority hit most of their marks.
Yet, in certain categories, a percentage—and in some instances, a significant percentage—failed to appropriately comply.
NO FOXES MAY INVESTIGATE THE HENHOUSE
For example, one of the categories that caused the OIG concern was Objective 2, the no-brainer requirement that the supervisor conducting the investigation of a force complaint cannot be someone who was involved in that alleged force issue, or was a direct witness of the alleged use of force in question.
Out of the 57 cases audited, in four cases (7.0%) the investigation of allegation-of-force was conducted by a supervisor “alleged to have been involved in or a witness to the incident.”
The good news is that, in 53 out 57 cases, an appropriate supervisor did the investigating. The bad news is that there were any supervisors at all who thought it was a fine idea to investigate an allegation in which they were involved or were a witness.
Or as the OIG’s report diplomatically put it: “While the compliance percentage in this area was high, it is of such critical importance that any failure to follow policy in this regard requires correction.”
THE IMPORTANCE OF NOTIFYING INMATES ABOUT OUTCOMES OF INVESTIGATIONS
One of the categories in which custody personnel failed miserably pertained to a requirement that emerged as a consequence of the huge class action lawsuit, Rosas v. Baca, which species that:
“An inmate should be advised of the results of the Department’s investigation of the inmate grievance against personnel, but not any sanction imposed, within 10 days of the Department’s adjudication of the grievance.”
The notification must also be in writing.
Out of 57 cases, in two cases the inmate was properly informed regarding what happened with their complaint. In the other 55 cases, there is no evidence that the inmate was informed in writing, if at all.
Obviously, if an inmate files a force allegation in good faith, and hears nothing about the matter ever again, it does not exactly encourage the filing of force complaints—righteous or otherwise.
Or as the OIG’s report put it:
“The Office of Inspector General regularly hears that prisoners believe their complaints are disregarded or not conveyed. Failure to provide notice fosters such a belief.”
MEDICAL TREATMENT MATTERS.
Another area in which there was a 10 to 20 plus percent breakdown in compliance had to do with medical treatment for alleged victims of force.
Objective 5 specifies that jail personnel are required to make sure the inmate on whom certain categories of force was used—or allegedly used—is examined and treated by medical personnel—particularly if the inmate “alleges any injury and requests medical treatment, whether or not they have any apparent injuries.”
Out of the sample cases audited where medical attention would have been appropriate, in 11 percent of the cases there was no evidence in the report that the inmate had ever been examined by medical personnel. Nor was there documentation that the inmate had refused medical help.
Similarly, when it came to Objective 6, which “requires that the force package includes documentation showing suitable treatment from qualified medical personnel was sought and/or received,” in 12.5 percent of the cases audited, the appropriate documentation was nowhere to be found.
And, in that same vein, there is Objective 4, which specifies that the investigating supervisor is required to interview “the attending physician or other qualified medical personnel…as to the extent and nature of the suspect’s injuries, or lack thereof, and whether the injuries are consistent with the degree of force reported . . . .” When it came to this objective, a worrisome 21.8 percent of the cases the supervisors either failed to conduct the required interview, or failed to document ever having done so.
Interestingly, when it came to these medical issues, the Inmate Reception Center had the highest percentage of failures to comply, with Men’s Central Jail and Century Regional Detention Facility running in second place.
THE ART OF THE VIDEO INTERVIEW
A curious glitch in a few cases had to do with Objective 3, the requirement to interview the inmate making the complaint on video, and then to include the video in the investigative package.
In the cases of four investigations, there was no video interview of the inmate included at all.
(For the record, three of those four force packages sans video interviews were turned in at MCJ.)
Even in those cases where the interview or interviews were recorded on video and included in the report, a bunch of those were reportedly less than ideal. Here’s what the report said:
We noted in our review that several of the video interviews were dark, shaky, contained muffled voices, or did not include the subject of the interview in the video frame. For example, a sergeant conducting one interview videotaped only the inmate’s nostrils during the entire interview.Another video depicted the ground as the sergeant spoke with the inmate. In another, the voice of the sergeant and the inmate were muffled and barely audible.
TIMELINESS? NOT SO MUCH
And then there is that annoying timelessness requirement. To wit:
“The watch commander or supervising lieutenant shall prepare and submit a force package to the Unit Commander for all reviews of force not conducted by an IAB Force/Shooting Response Team as soon as possible, but no later than 21 days after the incident, unless otherwise directed . . . .”
How did the jails do? Not well. Less than half (46.5 percent) of the cases met the 21-day deadline, while 54.5 percent did not.
When we poked around a little more we found that, according to the report’s foot-noted fine print, the average amount of time it took the watch commander or supervising lieutenant to prepare and submit an allegation‐of‐force package to the unit commander was 69 days.
And the longest amount of time was….386 days— by which point, if there was any wrongdoing, the year-long drop dead date for such an investigation would—we presume—have passed.
So, yes, the OIG’s report suggests that much progress has been made since the bad-old-days when boxes full of force packages were blithely deep-sixed in cupboards and drawers by certain high ranking supervisors, and inmates who attempted to report bad uses force were not-so-gently discouraged from doing so with threats and pernicious forms of retaliation.
And, the reply from Sheriff McDonnell sent in response to the Inspector General’s recommendations, we learn that many of the concerns had already been corrected in the time between the reporting period and now.
But, while the change is cheering, there’s still some healthy room for improvement—much of which seems to be already moving forward.
CITING RECENT EVENTS, SUPERVISORS VOTE TO PUSH FOR LASD BODY-CAMS ASAP
On Tuesday, members of the Los Angeles County Board of Supervisors voted unanimously to speed up the full implementation of body-worn cameras by LA County Sheriff’s deputies.
Although the motion, which was sponsored by Supervisors Hilda Solis and Sheila Kuehl, had been in the works for a few weeks, the events of the past week in Baton Rouge, St. Paul, and Dallas, gave Tuesday’s vote an unusual urgency.
That sense of urgency multiplied by several factors as, a few blocks away from the where the supervisors met, hundreds of demonstrators reacted to a decision by the Los Angeles Police Commission, which found that the highly controversial 2015 fatal shooting of a 30-year-old black woman named Redel Jones by an LAPD officer did not violate the department’s deadly force policy.
“Today’s action signals the Board’s commitment to making whatever investments are necessary to minimize the unnecessary loss of life and to heal tension between law enforcement and the community,” said Supervisor Solis. “Body worn cameras protect our officers and members of the public, and they must be implemented without delay….”
Co-author Sheila Kuehl, and Supervisor Mark Ridley-Thomas (who offered an amendment to the motion having to do with finding secure data storage methods) both addressed the issue directly.
“Concern about police use of force is very high,” said Kuehl. “We need to better address allegations of misconduct and increase public trust of law enforcement. I believe use of body-worn cameras will help move us in that direction,”
Ridley-Thomas was even more specific, mentioning “controversial officer-involved shootings,” including the shooting of Philando Castile in Saint Paul, MI.
“The point is,” he said, “to get to the truth and to justice. These tools will help us.”
The motion requests that Sheriff Jim McDonnell report back to the board in four months with a reasonable plan to equip all patrol deputies with body-worn cameras as quickly as possible.
DEPUTIES WANT BODY-CAMS TOO
The push is also expected to be widely welcomed by LA County deputies, as well
In September 2014, the department began an eight-month volunteer pilot program to test body cams at four LASD stations—namely, Carson, Century, Lancaster, and Temple. The program tested four brands and five models of body-worn camera systems, deploying a total of 96 cameras. Over the course of the eight months of the pilot program, the department solicited detailed feedback from the participants, through both electronic questionnaires and focus groups that were held at each of the four stations. T
The Inspector General’s office monitored the program and issued a report in September 2015.
According the report, although some of the stations were located in high crime areas, while others dealt with somewhat less intense crime levels, the feedback from the deputy participants was remarkably similar in all four stations.
All of the deputies who participated in the pilot program’s focus groups said that the body cams “would be a huge asset.” Deputies believed that the cameras would protect them from “baseless civilian complaints,” explaining that, on patrol, “you’re being recorded everywhere you go.” So having a body-worn camera would, deputies felt, more accurately document events from the officers’ perspectives.
Deputies also felt that viewing footage from an event after the fact, helped them write more accurate reports.
According to the report, a number of deputies told examiners that they missed the cams when the program was over.
ALADS, the deputies’ union, has also been vocally in favor of getting a department-wide body cam program going.
A TOOL FOR REFORM
“Video recording is a critical component of modern urban policing,” concluded the OIG in the 2015 report. “Video technology is now so advanced that it is present in almost every pocket, attached to the heads of skateboarders, and hovering above us as part of what we once called model aircraft. Failure to incorporate that technology is not just a missed opportunity, but a shortcoming that the public is increasingly unwilling to accept…”
At Tuesday’s board meeting, Inspector General Max Huntsman renewed his recommendation that the board move on the matter, ASAP.
If the board was “looking to reform the sheriff’s department,” Huntsman told the supervisors, the body cams were the best place to begin. “It’s a win-win.”
Not surprisingly, the push for body-worn camera gained traction elsewhere in the nation this week as Boston officials announced—also on Tuesday—that up to 100 Boston patrol officers will begin wearing body cameras likely next month, after a deal was reached between the city and the police department’s largest union to launch a six-month test of the devices.
“The agreement,” wrote the Boston Globe’s Jan Ransom, “means Boston police will join a growing number of departments across the country that have chosen to outfit their officers with cameras, at a time when controversial police shootings have prompted complaints about misconduct in several communities.”
DALLAS POLICE CHIEF DAVID BROWN SAYS WE ARE ASKING TOO MUCH OF OUR POLICE OFFICERS
David Brown, the Dallas police chief—with his painful past of three family members killed by violence, including a son—is the beating heart at the center of the public discussion. At least for the moment. And he’s wearing that mantle well, and humanely, even if with increasing fatigue.
On Monday, Brown confirmed that he and his family getting death threats following Thursday’s shooting.
He also said in a Monday press conference that the public expects too much of law enforcement. “We want to be superman and superwomen and we’re not. We don’t like to ask for help…. But that’s the number one thing we need…”
DALLAS — The police chief here said Monday he feels that law enforcement officers across the country are being asked to take on too much, comments that came as his department was still investigating the mass shooting of Dallas police officers last week and protesters in other cities continued demonstrations against how officers use force.
Even as the Dallas police worked to sift through massive amounts of evidence from the shooting rampage that killed five officers — an effort that entails watching hundreds of hours of videos and conducting scores of interviews — David Brown, the Dallas police chief, said he believes officers in his city and nationwide are under too much strain.
“We’re asking cops to do too much in this country,” Brown said at a briefing Monday. “We are. Every societal failure, we put it off on the cops to solve. Not enough mental health funding, let the cops handle it. Here in Dallas we got a loose dog problem; let’s have the cops chase loose dogs. Schools fail, let’s give it to the cops. That’s too much to ask. Policing was never meant to solve all those problems.”
During his remarks Monday, Brown also offered a hint of the toll that overseeing the response to such a shooting was taking on him. Brown, who has lived through traumas including his son’s death following the young man’s fatal shooting of an officer, said he was “running on fumes.” The chief also said he and his family “received death threats almost immediately after the shooting.”
“We’re all on edge,” Brown said of police in Dallas. “And we’re being very careful.”
Brown said Monday that in addition to the five officers who were killed, nine others were injured due to the gunfire — two more than police had said before. A total of 13 officers used force against the gunman, Brown said, with 11 of them firing their guns and two of them using the explosive that killed the attacker.
LA RESIDENTS TALK ABOUT DIFFICULT CONVERSATIONS HAD WITH FRIENDS AND FAMILY ABOUT LAST WEEK’S SHOOTINGS—IN BATON ROUGE, ST. PAUL AND DALLAS
KPCC’s Larry Mantle decided not to have a guest on for his last segment on Monday so he could ask listeners to call in and talk about the conversations they’d been having about the complex and painful events of the past week.
As I pointed out in today’s morning links, one particularly unfortunate aspect of the murder of five Dallas police officers Thursday night is that the city’s police department is a national model for community policing. Chief David Brown, who took office in 2010, has implemented a host of policies to improve the department’s relationship with the people it serves, often sticking out his own neck and reputation in the process. At risk of stating the obvious, no sane person would argue that these murders would have been okay if they had occurred in a city with a less community-oriented police department. Nor am I suggesting that the killer or killers represent any legitimate faction of the police reform or racial justice movements. But because Dallas is grieving right now, and the rest of us with it, it’s worth pointing out that in its police department, the city has much for which to be proud. Here are some of the areas where Brown and his administration have made changes:
Use of force
After a series of officer-involved shootings in late 2013, Brown overhauled the department’s lethal-force policies, including a requirement that officers undergo training every two months instead of every two years. The new policies won him a lot of public criticism from police groups and police advocates. He was even criticized by the Dallas Morning News, which accused him of being “reactive” and “moving too quickly.” Brown significantly expanded the data the department gathers on shootings by police, and has set up a team to regularly review that data to identify trends and potential problems. The Dallas PD’s lethal-force policy includes a statement that “protection of human life” is the agency’s primary goal, emphasizes that deadly force should be used with “great restraint,” only “as a last resort,” and requires officers to use all reasonable alternatives before resorting to lethal means. After an incident in which Dallas officers shot and killed a schizophrenic man, the department teamed with the National Alliance on Mental Illness to provide better training for intervening when someone is having a mental health crisis. Moreover, all of the data on the city’s officer-involved shootings is not only available to the public, there’s also a prominent link to the data on the department’s homepage. Brown also seems to understand the important distinction between the cop as warrior and the cop as guardian. And his top aides also seem to understand that when it comes to the harms caused by police militarization, imagery is as important as the gear and how it’s used.
Has it worked? It would appear so. After hitting a high in 2012, officer-involved shootings in the city dropped in each ensuing year. I don’t completely agree with everything Brown has done. In 2013, for example, Brown quietly introduced a policy that allows police officers to wait 72 hours before answering questions about a shooting. I find the research suggesting that a wait time improves an officer’s memory to be lacking. And I’ve seen too many incidents of cops corroborating on a narrative to believe that isn’t how such a wait time would primarily be utilized. But that’s one issue. On the whole, Brown’s record demonstrates that he takes officer-involved shootings very seriously and is implementing policies designed to reduce them — and at times has taken quite a bit of heat for it.
Brown has fired more than 70 Dallas cops since taking office. But he doesn’t just fire bad cops, he also announces the firings — and the reasons for them — on social media…..
DALLAS TRAUMA SURGEON TALKS ABOUT HIS ANGUISH OVER NOT BEING TO SAVE SOME OF THE OFFICERS HE TREATED, ALONG WITH HIS PAIN AS A BLACK MAN
Dr. Brian H. Williams, trauma surgeon at Parkland Memorial Hospital, who was one of the primary doctors who treated the 12 officers shot by Micah Johnson in Dallas talked on Monday to press about his anguish at being unable to save some of the officers he treated, and the complex emotions he has experienced as a black man about such shootings as those seen recently in Baton Rouge and St. Paul.
A BLACK FORMER POLICE CHIEF TALKS ABOUT DALLAS, & MORE
….rather than talk about things reasonably, logically, we have the police ratcheting up the rhetoric and we’ve got members of the community ratcheting up the rhetoric and that doesn’t resolve any issues at all. It bothers me any time we lose a citizen or we lose a police officer. We have to recognize that police officers are citizens too…”
THE NON-COP MOM VICTIM SHEILDED HER SONS FROM SHOOTER’S BULLETS IN DALLAS, THEN COPS CAME TO SHIELD HER
The LA Times’ Molly Hennessy Fiskhas a portrait of one of the two civilian victims of the devastating mass shooting in Dallas. Shetamia Taylor and her sons told about their experiences at a press conference on Sunday, July 10, describing to reporters what happened the night when a gunman killed five police officers and wounded ten others including Taylor.
Here’s a clip:
When the shooting started at the Black Lives Matter protest here last week, Shetamia Taylor shouted at her four sons to run.
“They started running up the block and I was running behind them and I felt the bullet,” she said Sunday.
Taylor, 38, had been shot from behind, in her right calf. Still standing, she looked to a police officer ahead of her, a heavyset, balding white man.
Then he was shot, too.
“I saw him go down. When he got hit, he slumped over and he said ‘He has a gun, run!’ ” she said, recounting the incident from her wheelchair at Baylor Medical Center. She began to sob, covering her face.
It would take hours for Taylor to learn the fate of her sons – ages 12, 14, 15 and 18 – and of the dozen officers shot, five of them fatally, by 25-year-old Micah Xavier Johnson.
She tried to raise her sons right, instructing them to treat police with respect, but also to call home if they were ever stopped. Taylor admired police but was increasingly disturbed by the growing tally of police shootings involving black men, and feared for her boys. It had been her idea to go to the protest, the family’s first, which she saw announced on Facebook.
After she was shot, Taylor managed to grab her 15-year-old son, Andrew Humphrey, and push him between a car and the curb, shielding him with her body.
“I was just laying on top of him,” she said. “If it was going to happen to one of my sons, it was going to happen to me first.”
She watched police stream up the block toward them — and the shooting. One of them shouted, “Is anybody hit?’”
Andrew yelled no, unaware that his mother was injured.
Taylor didn’t want to alarm him, and called out quietly to one of the officers, “Yes, sir, I’m hit in my leg!”
Police rushed over, most of them white officers, and jumped on top of Taylor and her son. “There was another one at our feet and another one over our head and several of them lying against a wall. And they just stayed there with us,” she said. “I had never seen anything like that before, the way they came around us and guarded us like that.”
Andrew was crying for police to move them, but they said it wasn’t safe.
As they lay on the concrete, pinned down by gunfire, Taylor saw another police officer get struck. She still doesn’t know if the two officers who were shot in front of her lived through the night.
“It was hundreds of rounds,” she said, “shots all around us.”
RAPPER RAISES $50K FOR LITTLE ROCK POLICE OFFICER
The whole thing began when rapper the Game and his oldest son, Harlan, were talking about what made a good cop in their estimation. After the conversation, Harlem began poking around on the web looking for unsung officers who he felt were engaged in the kind of excellent everyday policing they’d been talking about. Of the men and women in blue he found, he was particularly impressed with Little Rock police officer Tommy Norman, a white cop serving a predominantly black community in the Arkansas city.
On his web page, Norman wrote the that the following was his Mission:
“If you can just take two minutes out of the day to go out and make a difference, whether checking on your neighbor if they’re elderly, cutting someone’s grass, or hold the door for someone. It’s really just act of kindness and I think acts of kindness coming from a police officer means that much more to people because that’s not something you’re used to seeing.”
Now, the Game and Harlem are raising $50,000 for Norman— through a GoFundMe campaign.
According to Rolling Stone’s Daniel Kreps whose story . called attention to Game and Harlem’s efforts in officer Norman’s behalf, the “money raised by the GoFundMe will help Norman better contribute to the community he polices, including ‘purchasing and delivering items such as snacks, drinks, and toys for him to keep his trunk stocked for the kids.’”
The Game launched the fundraising effort after he and Snoop Dog and others led a peaceful march to the LAPD headquarters on Friday, and then joined Los Angeles Police Chief Charlie Beck and Mayor Eric Garcetti for a press conference.
EDITOR’S NOTE: As we make our way through these difficult, division-haunted days, take a break to read a story that offers some much-needed light.
Over the 4th of July weekend, two Los Angeles teenagers flew a round trip of nearly 5000 miles to bring water and various other supplies to around 200 undocumented residents of Flint, Michigan. The two had spent months raising the money necessary to pay for their trip to Michigan, and to buy the goods they would deliver once they got there.
On the surface, the twosome—Bryan Martinez, 18 and Carizma Brown, 19—were an unlikely pair to take on the challenge. For one thing, neither one of them, had flow in a plane before. Nor had they been out of LA, for that matter. And they had exactly zero experience in fundraising, or any kind of activism.
Bryan’s family is from El Salvador and Carizma is African American, yet the two have been best friends since they were 11, in part because they have a lot in common, much of it painful.
Bryan has been in and out of foster homes for most of his childhood, and has struggled to have have any kind of safe home environment.
Carizma lived with her mother for at least part of her growing up but, like her best friend Bryan, her homelife was anything but stable.
“These are two youngsters who have been impacted by ongoing poverty and violence,” said Dr. Cesar Cruz, who did his Harvard University doctoral residency at Homeboy Industries, where the teenagers are involved in a job training program. Cruz also became Bryan and Carizma’s mentor for the project, and their chaperone when they flew to Flint. “They’re not in gangs,” explained Cruz, “but a lot of times people think they are. And they’re impacted by gangs, trauma and instability, because of where they live.”
Although both teenagers are clearly bright, neither did well in traditional schools. Thus they wound up at Learning Works Charter School, an individualized learning program that operates in partnership with Homeboy Industries.
Even at Learning Works, according to Cruz, the teens struggled in the beginning to recover enough credits to get firmly on the road to graduation. (They expect to graduate next June.)
“But they wanted to be challenged,” Cruz said. “And they had a strong interest in social justice.” Thus when, as part of their studies, they read about the water contamination catastrophe in Flint, they became fascinated by the fact that the residents of an American city didn’t have enough of a basic necessity of living—water.
NO IDENTIFICATON, NO WATER
It was Carizma who first got the idea of turning their interest into action, said Cruz. She began bugging her best friend Bryan, “and they cooked up a plan.”
Bryan, in particular, was stunned by the idea of people in the U.S. without safe drinking water. “Water is an main need in life,” he said,”and seeing that people were having trouble getting it…it made us want to do something. We wanted to show that young people were concerned with other people, not just ourselves.”
They were also interested in the fact that, while Flint had been a big story, it had fallen out of the headlines. Most of the famous people had gone home. But the problem was far from over. People were still suffering.
Among the sub-issues within the crisis that Bryan and Carizma discovered was the fact that many among Flint’s undocumented population of several hundred residents were having trouble getting water and other crucial supplies that were being provided to those in need, because they had no valid IDs and, even when they did, they were fearful about disclosing their immigration status.
The idea of helping out Flint’s comparatively small undocumented population made the project seem manageable, according to Cruz.
But, how to find Flint’s undocumented residents?
FORMING A PLAN
In one of the news stories they found in the course of their research, they noticed the name of a Catholic Church located in Flint: Our Lady of Guadalupe. Having no other leads, they the two called the church. The parish secretary, a woman named Mary Mosqueda, happened to answer the phone. Bryan and Carizma explained what they wanted to do.
By the end of the conversation, Ms. Mosqueda had agreed to help the twosome.
“Don’t worry so much about water,” she told them. “People need baby wipes and adult wipes” in order to bathe.
Now that they had an on-the-ground contact and a reasonably practical plan, their next step was to make a budget. After doing the math, they determined they’d need to raise around $5000 to accomplish their goals. After that, they printed flyers for their project, which they handed out at the yearly Homeboy picnic, which draws about 300 Homeboy employees and supporters.
“They hit everyone up for donations,” said Cruz.
But, while Bryan and Carizma’s enthusiastic badgering of the picnic attendees did produce results, it wasn’t anywhere nearly enough.
It worked. They didn’t raise the full $5000, but they managed to pull in $3825. Homeboy and Learning Works agreed to loan them the rest, until they could gather the remaining cash.
SAM’S CLUB STEPS UP
Bryan and Carizma flew to Flint on Friday July 1, and hit the ground running. They liked the symbolism of doing their outreach on Independence Day weekend, said Cruz.
On Saturday morning, they went into Sam’s Club to buy the needed water and wipes—after comparison shopping and finding that Sam’s had had the best prices for what they wanted to purchase in bulk. It turned out to be a felicitous choice because, at Sam’s Club, persuasive Carizma was able convince the store’s manager to match any of the money they spent in the store, dollar for dollar.
“The manager cared because this was her town,” said Cruz.
On Saturday afternoon and again on Sunday, they delivered the supplies to the church, and at other locations that their new Flint friends suggested. They also spoke at Our Lady of Guadalupe in front of the congregation. “They were powerful. Afterward, all these people came up and hugged them,” said Cruz.
Prior to coming to Flint, Carizma and Bryan decided they wanted to make a documentary covering what they experienced, so they came armed with cameras.
During their time in Flint, they were stunned by the poverty and the suffering they saw around them. .
As difficult as their own lives have been, they saw greater suffering in Flint, he said. It affected them to the point that they had trouble sleeping.
“I was talking to kids while I was giving out water,” explained Carizma, “and they weren’t eating good, they had rashes on their skins. And these are kids who are, like, seven years old.”
One antidote to their upset, seemed to be to film the pain they saw, with the idea of showing spreading the word beyond Flint. But it wasn’t all suffering, they were quick to note. They found significant pockets of hope provided by the many instances of local activism Bryan and Carizma witnessed.
“They filmed everything,” said Cruz. “They had no fear. They went into crack houses, they went into housing projects. They went everywhere, and talked to everyone.”
Bryan and Carizma hope to have a half-hour documentary ready in time to present at an event held at the California Endowment in August that draws leaders who work with populations like those at Homeboy, from around the globe.
And they’ll do it, said Cruz. “They’re on fire right now. They’re ready change the world….”
Carizma, normally the most facile public speaker of the two, grew suddenly shy, but still persevered, telling those assembled that her thought for the day was “Be grateful for what you have, because in Flint they don’t even have water.”
Former LA County Sheriff Lee Baca was originally due to be sentenced on Monday, July 11 in the courtroom of U.S. District Court Judge Percy Anderson.
The sentencing hearing has now been rescheduled for Monday, July 18, at 8:30 a.m., still in front of Percy Anderson.
In mid February of this year, Baca pleaded guilty to one felony count of lying to federal authorities when officials questioned him in the course of a wide-ranging investigation into “corruption and civil rights violations” in the department he’d led for fifteen years.
Specifically, Baca admitted that he lied to the FBI and members of the U.S. Attorney’s Office during a round of questioning on April 12, 2013. At that time, among other denials by Baca, the former sheriff falsely claimed ignorance of the fact that, in 2011, two LASD sergeants were going to approach FBI special agent, Leah Marx, and threaten her with arrest, hoping to get information about the feds’ rapidly expanding investigation into brutality by deputies in the county’s large jail system.
In fact, Baca has now admitted, he gave instructions that the officers “should do everything but put handcuffs on her.” Her being Agent Marx.
According to Baca’s plea deal with the U.S. Government, his proposed sentence will be between 0 to 6 months in a federal prison. But Judge Anderson has the option of going outside the parameters of the deal and could give the former sheriff as much as five years in a federal lock-up. However, if the judge were to go beyond the 0 to 6 boundaries, it would render the plea deal null and void.
Then Baca and his attorneys would have to decide whether or not they wish to take the risk going to trial, or simply accept a greater sentence than that agreed to in the deal.
The the fact that the former sheriff has been diagnosed with early stage Alzheimer’s disease, may also be a factor in Baca’s sentencing. (WitnessLA broke that story in May.)
The ongoing exchange of legal briefs and expert opinion on the matter of Baca’s Alzheimer’s diagnosis is the reason for this latest delay.
Although originally, officials—and observers-–believed there were as many as four shooters lethally targeting police officers, it appears that all the damage and heartache of Thursday night in Dallas was caused by one disturbed, angry and very well-armed person.
At an otherwise peaceful protest in downtown Dallas Thursday night, following two controversial police involved shootings—in St. Paul, Minnesota and in Baton Rouge, LA—an estimated two snipers and two additional shooters, one known to be on the ground, suddenly opened fire at police at around 9 p.m., Dallas time.
Five Dallas police officers were killed and seven others wounded in a ghastly attempt to target police specifically. Among the dead officers were four members of the Dallas Police Department and one Dallas Area Rapid Transit officer.
Dallas Police Chief David Brown said that suspects were working together to kill as many officers as possible, with two snipers firing from elevated positions.
Yet another suspect or suspects were confirmed to be working on the ground. One Dallas man saw a suspect dressed in body armor shoot an officer at point blank range. The frightened bystander recorded the shooting on video.
THREE SUSPECTS IN CUSTODY, ONE DEAD
Three suspects are in custody as of Friday morning, and a fourth, who had exchanged gunfire and words with police from inside the parking garage of a downtown building, is now dead. The dead man is believed to be the shooter captured on video reportedly killing a police officer.
Although the captured suspects, which reportedly include one woman, have been uncommunicative, Chief Brown said that the attacker cornered in the standoff told authorities “he was upset about the recent police shootings” and “wanted to kill white people, especially white officers.”
The cornered suspect, was blown up by a bomb robot sent in by police. He did not kill himself as had been earlier reported, according to Chief Brown.
DEAD SHOOTER IDENTIFIED US ARMY RESERVIST MICAH XAVIER JOHNSON
The LA Times has identified the Dallas shooter who was killed in a standoff with police as Micah Xavier Johnson, 25, a former Army reservist with no criminal record. Johnson lives near to Dallas, with relatives in Mesquite, Texas, authorities told the Times.
He has no known ties to extremist groups, or the like.
The U.S. Army has confirmed to several publications that Johnson served in the Army Reserves from March 2009 to April 2015, and received several awards after a tour of Afghanistan, from November 2013 to July 2014. His military occupational specialty was carpentry and masonry.
Two civilians, one man and one woman, were also injured in the course of Thursday night’s devastating shooting attack.
Later on Friday morning Chief Brown confirmed that Micah Johnson was the dead gunman.
FORMERLY THE MOST HATED MAN IN AMERICA
On Thursday night, the brother of an individual whose photo had been widely distributed as a “person of interest,” came forward to say that his brother did indeed have a rifle when he was marching, “exercising his second amendment rights,” but that the gun was not loaded. When the firing began, Mark Hughes gave his gun to a police officer, said Corey Hughes of his brother, to avoid giving “the wrong impression.” Mark Hughes, the missing brother, turned himself in around 9:30 PST on Thursday night, once he realized his face was plastered all over the media.
Mark Hughes and his brother Cory say they are now getting death threats. “We came for a peaceful protest, and we were helping police direct traffic” once the shooting started, said Cory Hughes. “And my brother was named as an armed ‘suspect,’ not a person of interest, but a suspect. I know everyone is hurting because of the dead police officers. But we don’t feel safe.”
Cory Hughes says he worries because the announcement naming his brother as a suspect was so widely distributed, yet there was no announcement clearing him. “My brother’s photo was plastered all over the world. for a while, he was the most hated man in America. There are extremists out there. We don’t know what they’re going to do.”
President Obama, who was out of the country at a NATO summit meeting in Warsaw, Poland, called the attack “vicious, calculated and despicable.”
“I believe I speak for every single American when I say we are horrified over these events,” said the president.
“Justice will be done,” Obama promised.
“We’re hurting,” said Dallas police chief Brown, in a press conference Friday morning. “Our profession is hurting. Dallas officers are hurting. We are heartbroken.”
NOTE ONE: In light of this news, we are delaying publication of our other planned stories. Those delayed stories will appear later Friday or, most likely, Monday morning.
NOTE TWO: This story has been updated multiple times, and continues to be updated
IN RESPONSE TO VIDEO OF ALTON STERLING SHOOTING: PROTESTS, CALLS FOR ACCOUNTABILITY, AND AN INVESTIGATION BY THE DOJ AND FBI
Two videos surfaced this week showing Baton Rouge police wrestling Alton Sterling, a 37-year-old black man, to the ground before repeatedly shooting the restrained Sterling in the chest and back.
The fatal shooting occurred on Tuesday, and by Wednesday the bystanders’ videos had sparked public outrage and protests, and a swift and welcome announcement from East Baton Rouge District Attorney Hillar Moore that the United States Attorney and the FBI would be taking over the investigation. “This is a very important decision taken to ensure that our community can have confidence that local law enforcement is committed to ensuring transparency in all officer-involved deaths,” said Moore.
Early Tuesday morning, at around 12:30a.m., Baton Rouge Police officers Blane Salamoni and Howie Lake responded to a disturbance call from a man who said a black man selling CD’s outside of a convenience store had threatened him with a gun. The officers reportedly confronted Sterling, and a struggle ensued.
In the graphic video footage, one of the officers yells, “He’s got a gun! Gun.” The other officer, standing a few feet away, then draws and aims his pistol at Sterling. The first officer is heard saying, “You fucking move, I swear to God,” then the second officer starts firing at Sterling, who is on the ground. The owner of the store, Abdullah Muflahi, who recorded the first cell phone video of the incident, says Sterling wasn’t touching his pockets or holding a gun. (Louisiana, by the way, is an open carry state.) In the clearer of the two videos (above), one of the officers appears to remove a gun from Sterling’s pocket afterward.
The Lawyers’ Committee for Civil Rights Under Law called the intervention of the FBI and DOJ an “encouraging development,” noting that the BRPD had previously been the subject of a federal civil rights investigation into a case of excessive force by an officer.
“We stand with Mr. Sterling’s family, the community and those exercising their first amendment right to protest in calling for justice in the tragic death of Alton Sterling,” said Kristen Clarke, head of the Lawyer’s Committee.
According to the BRPD, the two officers have been placed on administrative leave.
WILL OAKLAND POLICE SEX SCANDAL IMPEDE EFFORTS TO REDUCE CHILD SEX TRAFFICKING?
Amid a major scandal involving Oakland police and other Bay Area officers allegedly passing around a minor for sex, advocates and local officials are worried that the revelations will make it more difficult for the OPD to have cooperative interactions with young sex trafficked people.
Contra Costa County Public Defender Robin Lipetzky agrees that the scandal cheapens efforts to combat the exploitation of minors. “When you have a young woman who’s being used for sexual favors by police officers, it really detracts from that message,” Lipetzky told the SF Chronicle’s Kimberly Veklerov.
Lipetzky and Alameda County Public Defender Brendon Woods are carefully reviewing cases—especially prostitution stings—handled by the law enforcement officers implicated in the scandal.
In case you missed it, last month, a young woman who calls herself Celeste Guap told a television station that she had sex with a number of Bay Area cops, including more than a dozen OPD officers, at least three of whom she reportedly had sex with while she was 17—in 2014.
“They were participating in the human trafficking of this girl. Passing her around from area to area, giving her breaks … they became the pimp,” said John Burris, a civil rights attorney who negotiated a federal monitoring agreement that the Oakland Police Department has been under since 2003. “Does OPD have any credibility on this issue? That’s a legitimate question.”
Law enforcement agencies in Alameda County have made trafficking enforcement a top priority in recent years, creating a task force spearheaded by Dist. Atty. Nancy E. O’Malley. From January to May, Oakland police made 282 arrests connected to trafficking, department records show. About 70% of those arrested were women, rather than “johns.”
A police spokesman said the arrests enabled police to get sex-trade victims off the streets. Once the young people are in custody, police give them information about social services.
The trafficking problem in Oakland has been evident for decades, according to investigators who say the victims are usually minors or young women exploited by gangs or pimps.
City Councilman Noel Gallo, a former school board member who represents the Fruitvale neighborhood, said he could recall horror stories about the trafficking trade ensnaring young girls, even in areas that were supposedly safe.
“I remember the girls would leave school … to go prostitute on International during lunch hour,” he said. “The students knew it, the teachers knew it, the principal knew it, I knew it … and we allowed that to happen.”
Gallo said he feared that the police sex scandal might make it more difficult for officers to interact with trafficking victims or gain their trust, a task that was hard enough before the controversy becoming national news.
At least officers under investigation have been reassigned from posts involving interaction with kids and teens. One officer, Jerred Tong, was a school resource officer and an advisor for the department’s Explorers program for teens. Another officer had been working as a manager of the department’s Youth and Special Services Division. There are other officers reportedly involved in the sex scandal who may still be positions involving children and teens, who have not been reassigned to administrative duties. The Richmond Standard has the story.
Research has consistently shown that contact with family is extremely important for a former offender’s successful reentry into their community, yet many families simply cannot afford to visit loved ones who are locked up far from home, so they rely on the telephone. But outsized fees for phone calls can be a huge financial burden and a significant barrier to family connection.
The problem appears to be that the FCC’s cap only applies to out-of-state calls, and the largest prison phone company, Securus Technologies, has reportedly increased fees levied against inmates’ families for local calls to make up for the rate reduction for out-of-state calls. The rate increases have resulted in an overall higher cost to prisoners’ loved ones.
At Weld County Jail in Greeley, Colorado, for instance, rates went up 52 percent for a local call. And at a jail in Holdenville, Oklahoma, rates recently rose 43 percent in just 24 hours — from $4.03 on June 19 to $5.75 on June 20. Both jails have contracts with Securus. Right now, it’s unclear how many other jails and prisons have raised their prices.
Rick Smith, chief executive of Securus Technologies, defended the change in an email and pointed the finger toward the FCC. Smith argued that because the FCC eliminated fees, set rates below their costs, and did not ban commission payments (i.e. revenue sharing with sheriffs an prison officials) the company “had to increase rates as long as we received facility approval in order to stay neutral financially.”
“Bottom line,” Smith wrote, “the lower rates that were highly publicized never went into effect because the FCC failed to do their job and tried to set rates below our cost. There are no rate caps on intrastate and local calls, only on interstate calls. I understand that inmates and families are upset that rates didn’t decrease, it’s the FCC’s fault.”
Wright, the inmate advocate, conceded what Securus is doing isn’t illegal. “While Securus may not be violating the law … there is no question that they are not only violating the spirit of the Commission’s Order, but doing so in a blatant manner that indicates their contempt for the FCC’s reforms and authority,” Wright wrote in his official complaint.
When a customer emailed a Securus to complain, the company responded: “Due to an order by the FCC, effective June 20th certain fees related to inmate calling will be reduced or eliminated. As a result, you may see modifications and rebalancing of calling rates at that time to offset fees that have been eliminated or reduced.”
This offsetting, however, has real-life impacts.
PHONE CHARGES ARE NOT THE ONLY UNFAIR FINES INMATES ARE BURDENED WITH…”LEGAL FINANCIAL OBLIGATIONS” ARE ANOTHER USURIOUS FEE THAT CAN CRIPPLE INMATES AND THEIR FAMILIES
Another incredible financial burden placed on justice system-involved people by a growing number of local governments nationwide, is called a “legal financial obligation” (LFO). Jurisdictions charge defendants thousands of dollars in bench-warrant fees, filing-clerk fees, public defender fees, jury fees, incarceration fees, and more, in order to increase funding for their criminal justice systems. Not surprisingly, these fines, often carrying prohibitively expensive interest rates, have a hugely disparate impact on low-income and minority defendants.
And in 44 states, if formerly incarcerated people “willfully” default on paying these fees, they can be locked back up and slammed with even more LFOs.
The interest charged on LFOs can be prohibitive for some former prisoners, adding thousands of dollars on top of the fines and fees they already can’t pay. For instance, on average, people in Washington State were sentenced to LFOs of $1,347. But that amount can increase significantly if individuals can only pay $5 a month. Many realize they may never pay off their LFOs, according to Harris.
The uptick in LFOs comes as states look for ways to pay for their corrections system while facing other revenue shortfalls. The fees levied on the formerly incarcerated include bench-warrant fees, filing-clerks fees, court-appointed attorney fees, crime-lab analysis fees, DNA-database fees, jury fees, and incarceration costs. They come in different forms: Fines are fixed financial penalties for given offenses, fees are charges for costs of using the justice system—and surcharges are levied on top of those—as a percentage of the total cost. States also charge for restitution and the cost of collection, and add interest surcharges for people on payment plans.
The percentage of prison inmates with court-imposed monetary sanctions exploded from 1991 to 2004, according to a study by Harris, Heather Evans, and Katherine Beckett. In 1991, just 25 percent of inmates reported receiving court-ordered fines and sanctions, by 2004, 66 percent did.
EDITORIAL – NOT ANOTHER NARROW, “HEADLINE-DRIVEN” BILL TO CHANGE SEXUAL ASSAULT LAWS
In 2012, 15-year-old Audrie Pott committed suicide after three teens sexually assaulted her while she was unconscious, and then texted photos of her body to fellow high school students. In response, California lawmakers passed Audrie’s Law, which increased penalties for sexually assaulting someone who is unconscious. Unfortunately, the law was poorly though through. The scope of Audrie’s Law was too narrow and left major disparities in sex crime sentencing laws.
State legislators should not make the same mistake in the wake of the the unpopular Brock Turner rape sentence, says the LA Times editorial board. Instead lawmakers should take the opportunity to carefully examine the state’s rape and assault laws and disparities in sentencing that might have contributed to Turner’s lenient sentence. Here’s a clip:
It would have been nice if the brutal attack, the sentences and the headlines and outrage that followed had spurred a more exhaustive reexamination and overhaul of California rape and assault law rather than a bill so narrowly focused on the circumstances of one incident. It would have been helpful if lawmakers had taken the opportunity to thumb through their statute books and had discovered the continuing imponderable discrepancy between sentences not just for juveniles but for adults who rape conscious victims and those who rape unconscious ones. If they had, they might have had a more rational legal framework in place than the one that allowed Santa Clara Superior Court Judge Aaron Persky to sentence former Stanford student Brock Turner in June to a mere six months in jail plus probation for the sexual assault of an unconscious woman after a party in 2015.
But they didn’t, and the maddening result is that lawmakers are now repeating their mistake by rushing to pass more headline-driven bills tailored to the circumstances of a particular case and the highly unpopular sentence that followed.
When the Brock Turner sentence hit the headlines, Assemblywoman Nora Campos (D-San Jose) quickly announced that she would introduce a bill on sentencing in cases in which an unconscious victim is raped (it’s worth noting that Campos is running against state Sen. Jim Beall, another San Jose Democrat, who is author of Audrie’s Law). She was beaten to the punch by AB 2888, a bill that once covered funding for food displays at California fairs, but was hastily rewritten and now prohibits probation for a variety of sex crimes, including rape or sexual assault of an unconscious person.
On Tuesday morning, July 5, attorneys for former Los Angeles County Sheriff’s deputy James Sexton, and six more department members who were convicted of obstruction of justice in a trial separate from Sexton’s, tried to convince the 9th Circuit Court of Appeals that their convictions should be overturned, and that U.S. District Court Judge Percy Anderson should be replaced in any future proceedings, should Sexton or the six be retried.
Most of the former members of the Los Angeles Sheriff’s Department who have been convicted by federal prosecutors, are similarly appealing their cases (unless, like former sheriff Lee Baca, they have taken a deal, in which case appeals are precluded).
Former undersheriff Paul Tanaka and his attorneys, unsurprisingly, filed an appeal before the sun went down on the day of his conviction.
But the appeals of Sexton and the six others—namely former LASD members Gregory Thompson, Stephen Leavins, Gerard Smith, Mickey Manzo, Scott Craig, and Maricela Long—were the first to actually appear in front of the 9th Circuit. Thus the arguments put forth by the defense and countered by the prosecution, were both interesting, and closely watched.
The defendants’ attorneys traditionally are given very little time to make their legal pitches in front of the three-judge panel, which heard Tuesday morning’s cases for Sexton and the six others, so presentations have to be brief, persuasive and to the point.
In the cases of all seven, attorneys argued, among other things, that the defendants didn’t really obstruct justice, but were following lawful orders.
Among the issues that seemed to catch the attention of the 9th Circuit panelists are the following:
JUROR NUMBER FIVE
In the trial of Greg Thompson, et al, one issue flagged by the defense had to do with the dismissal of a certain juror, by U.S. District Court Judge Percy Anderson, who presided over all trials pertaining to the alleged obstruction of the FBI’s investigation into corruption and brutality inside the LASD-run LA County jails, which included the hiding of a federal informant from his FBI handlers in an operation that came to be known, unofficially, as Operation Pandora’s Box.
Here’s the deal:
On the fifth day of jury deliberations, Juror Five sent a note to Judge Anderson asking to be dismissed from the panel.
Jurors, of course, can be legally and appropriately dismissed for a host of reasons. That is why any court is wise to have a good supply of alternates on hand.
In the trial of the six, one juror had already been dismissed earlier in the deliberation process because she suddenly had an emergency that affected her childcare situation. No one raised any particular objection to her exit. Emergencies are emergencies.
(We were to learn later that this mom juror was reportedly leaning strongly toward acquittal, so her dismissal was bad luck for the defense. But those are the breaks, not grounds for appeal)
A few hours later, however, a second member of the jury panel, Juror Number Five, sent the note to Judge Anderson. It read as follows:
Due to duress, I would appreciate your consideration in accepting my resignation from this case. Always loyal to our justice system and the privilege to serve my decision has been clouded with fear of retaliation.
Juror Five was an anxious-appearing woman who always seemed to keep her distance from the rest of the pack, when it was time for the jury to leave the building.
According to the defense’s initial brief, the judge asked the juror if she feared “retaliation” from an “outside source.” But reportedly, that wasn’t the issue. She said, the defense writes, that her feelings would not affect her ability to deliberate personally. But she did not believe that there was a fair exchange of ideas among he panel, and she was also doubtful that a fair and impartial verdict could be reached. (Or words generally to that effect. )
In their second brief, the defense went further:
Two things, taken together, make Juror Five’s dismissal unlike what occurred in any of the cases cited by the government, or any case of which Defendants are aware. First, juror dismissal usually results from a claim of misconduct made by another juror or jurors. Here, no one complained about Juror Five, she raised her concerns with the court. Second, after discussing her concerns with the court, Juror Five stated, repeatedly, that she could continue with deliberations, and there was no good reason to doubt her – after all, it was she who raised her concerns with the court. On the other hand, there was ample reason to believe that her initial request to be excused stemmed from a dispute amongst jurors about the merits of the case. (Ital. from WLA.)
In other words, the defense suggested that the judge improperly and unnecessarily dismissed Juror Five, who was distressed—not because she was fearful for her safety, or because she personally could not continue deliberate fairly and impartially—but because she was in disagreement with the majority, which upset her.
To put it another way: Juror Five, had she not been dismissed, arguably could have produced a hung jury, and thus a mistrial. (The defense attorneys did not say this directly, but the possibility was implied.)
The defense attorneys say more in their briefs (the second of which you can find here), and several of the court watching attorneys who were present when the dismissal occurred mentioned that they thought letting Number Five go could cause Judge Anderson problems on appeal.
The panel seemed very interested in this issue, and two of the judges asked a string of questions. What those questions portend is impossible to say.
TO EDIT OR NOT TO EDIT
When it was Sexton’s teams’ turn, his attorney, Tom O’Brien, focused primarily on two issues, both having to do with Sexton’s grand jury testimony.
The first of the two issues, had to do with editing, in particular whether Judge Anderson allowed the prosecution to introduce an improper and misleading edit of Sexton’s grand jury testimony that essentially changed its meaning by excluding certain contextual sections that, according to the defense, would have given the jury a different and, by definition, more accurate view of what Sexton did and didn’t know.
(James Sexton, we should remind you, was tried twice. The first trial resulted in a mistrial caused by a hung jury, which was evenly split, six to six.)
In the first trial, according to Sexton’s defense team, the prosecution read a mostly intact portion of Sexton’s grand jury testimony to the jury, which—in both trials—they characterized as a confession.
In the second trial, a portion of grand jury testimony was also presented. But in trial number two, the defense contends, the original text was selectively edited.
“Selectively editing the transcript—-including significant context–—allowed the jury to be misled,” the defense wrote in their briefs, and reiterated to the three 9th Circuit judges Tuesday morning.
This is from one of their briefs, which were delivered to the panel weeks ago:
“Similarly, the Government eliminated numerous other statements clarifying Sexton’s intent and knowledge behind his alleged confessions. As described in the Opening Brief, the Government withheld from the jury numerous statements regarding Sexton’s actual lack of foundation for his alleged confessions, such as: ‘there were rumors,’ ‘we as young deputies were speculating,’ ‘I was not privileged to the entire information,” “I had conversations about this with . . . my peers and just trying to establish what we were doing,’ ‘innuendo,’ ‘we’re baby faced in there,” “I’m not going to detain a U.S. Attorney at gun point’….and so on.
To make their point clearer still, the defense included the following:
One of the justices asked a number of questions about why the editing made such a big difference, while the other two judges made notes, their expressions impassive.
THE LEGALITY OF BEING A TARGET
The second issue in Sexton’s attorneys emphasized, both in their briefs, and in oral arguments, was the idea that the prosecution grievously erred when it reportedly failed to appropriately notify Sexton that he was a target before he testified twice under oath in front of the grand jury, particularly the first time.
(Interestingly, Sexton testified that first time without an attorney, because his lawyer from the deputies’ union, ALADS, failed to show up. But that’s another issue altogether, and not relevant to the appeal.)
In any case, believing himself to be a cooperating witness, not a potential defendant, Sexton didn’t demand to have an attorney present. Nor did he invoke his 5th Amendment rights, or claim a faulty memory when answering questions that could have put him in legal jeopardy.
Here’s a clip from Sexton’s attorneys’ argument:
A target must be notified of his status and rights prior to being subpoenaed for Grand Jury testimony. That did not occur here. The Government specifically advised Sexton, and his counsel, that he was not a target of the investigation (a claim that was false). (Sexton’s prior counsel stated under penalty of perjury that “it was obvious to me that I had been misled and James Sexton had always been a target defendant”).
By its own admissions—particularly given its reliance on the evidence at trial—the Government believed it had sufficient facts linking Sexton to a crime. It, therefore, had a duty to notify Sexton (or counsel) of his target status prior to obtaining a sworn “confession.”
Using that first Grand Jury testimony as a “confession,” wrote the defense, without letting Sexton know he was a target, is the equivalent of introducing a confession obtained by questioning a suspect without a Miranda warning.
The attorneys for Sexton and for the six will likely argue other points. But, as mentioned above, these are the legal questions we’ll be watching with the most ardent interest.
The prosecution replied to all of these and other points in their various briefs, and in Tuesday’s arguments.
Tuesday morning we will see how the 9th Circuit’s panel reacts.
By the way, the three judges who listened to Tuesday’s arguments and who will decided the fates of the seven defendants are:
1. Judge Ferdinand Francis Fernandez, a 1989 G. H. W. Bush appointee, stationed in Pasadena
2. Judge Richard Clifton, a 2002 G. W. Bush appointee, stationed in Honolulu
3. Judge Michelle Friedland, a 2014 Obama appointee, stationed in San Francisco