Jul 11 2016

One Opinion Judge Ginsburg Should Have Kept to Herself

Disclaimer: The opinions in this blog post do not lessen my respect and admiration for Ruth Bader Ginsburg, affectionately known as the Notorious RBG. That may not be rational but love is blind.

Supreme Court Justice Ruth Bader Ginsburg in an interview in this Sunday’s NY Times stated that she and her husband would move to New Zealand if Donald Trump were elected President. She added:

I can’t imagine what the country would be with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

|She went on to discuss her distress that the US Senate had not confirmed Merritt Garland to the Court and added that it would be nice to be more regularly on the “5” side of a 5-4 decision. She said even more, discussing her views on decided cases – wishing for the overturn of Citizens United and saying that a few of the 4-4 cases would have gone the other way if Justice Scalia were still on the bench.

Many people may undoubtedly think its refreshing and interesting to hear a Justice of the Supreme Court speak so candidly on issues like this. But it is wrong – flat out wrong. SCOTUS should be above the fray of Presidential politics – I know that may be a dream state in our current environment but not too long ago, a sitting Supreme Court Judge would never opine on any issue that may come before the Court and that restriction covered almost all issues since it is foreseeable that just about any legal controversy can end up in the Supreme Court.

The Notorious RBG

The Notorious RBG

And its not just RBG . This new pattern of SCOTUS judges talking really began with Clarence Thomas who made a stir many years ago by accepting huge speaking fees to address conservative think tanks- he is a fan favorite at Koch Brothers’ events for example. Justice Scalia traveled around the world to speak at similar events. But it besmirches the Court’s reputation to weigh in so directly as RBG did against a pending Presidential candidate. The Court itself is already more politicized and polarized than it has ever been. Essentially, Judge Anthony Kennedy is the Supreme Court for all intents and purposes as you can easily figure out where the other seven will fall on most issues. The court’s decision often take direct jabs at one another and attack the very language used by the other side in a personal way not seen before this Court’s current composition. The country did not need any further evidence of just how politicized the Court has become.

Donald Trump recently made news when he said the Mexican-American judge presiding over the Trump University fraud case should recuse himself due to his ethnicity and Trump’s Anti-Mexico statements. If Trump becomes President, would he ask RBG to step aside on cases dealing with the Federal government? I think its a safe bet that’s exactly what would happen.

Maybe its her age (she’s 83). My Mom is 83 and my Dad is 91 and any filter on their thoughts and words is gone – they say whatever is on their minds. Or maybe RBG was trying to bring attention to the most important issue of this election – that the winner may get to appoint at least one and as many as three Justices within the first term. But by publicly stating her distaste for Donald Trump, Judge Ginsburg went too far and diminished herself and the Court. Let’s hope it ends here.

Jun 21 2016

Latest Warrant Decision by SCOTUS Ignores Reality

The Supreme Court ruled on Monday that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants. Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop.

The case weakens the “fruit of the poisonous tree” doctrine which calls for all evidence to be excluded if the initial search or seizure was unlawful. The majority here found that the discovery of an active warrant “attenuated” any illegality of the initial stop. Normally, the attenuation doctrine applies to the defendant’s conduct (like struggling with an officer, spontaneously confessing to the crime or consenting to the continuation of the stop). Courts will then uphold the use of evidence obtained even though the initial stop was unconstitutional if what the suspect did then led to the evidence and therefore “cut off” or attenuated any wrongdoing by the police officer. But Justice Thomas said that he saw no reason to only apply attenuation only to the defendant’s conduct. He wrote that once the police officer found out the defendant had an active warrant, that discovery cut off or attenuated any earlier wrongdoing and justified the use of the contraband discovered. But the officer would not have learned of the warrant if he had not illegally and unconstitutionally stopped and detained Strieff in the first place. This decision will greatly broaden and expand the attenuation doctrine and will give police much more power to stop citizens on the street without probable cause.

A quick recitation of the facts: The case, Utah v. Strieff arose from police surveillance of a house in South Salt Lake, Utah based on an anonymous tip of “narcotics activity” there. Police officer Douglas Fackrell demanded Edward Strieff stop walking after Strieff had left the house and demanded Strieff provide his name to him. The officer made no attempt to ascertain how long Strieff had been in the house or to otherwise determine if Strieff had committed any crime within the house. The state later conceded Fackrell had insufficient grounds to demand this of Strieff, making the stop unlawful under well established law. Officer Fackrell however, then ran a check and discovered a warrant for a minor traffic violation. He arrested Strieff on the warrant, searched him and found a baggie containing methamphetamine and drug paraphernalia. The question for the justices was whether the drugs must be suppressed given the unlawful initial stop or whether they could be used as evidence given the arrest for the traffic warrant.

Justice Thomas, along with the four justices who joined his opinion, chose to bury their heads in the sand and adopt a rose-colored-glasses view of the world. First, the Court acknowledged that Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. The Court then also recognized and admitted that Officer Fackrell had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. That meant, according to the opinion, that Officer Fackrell “thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction” and therefore lacked a sufficient basis to determine that Strieff had doe anything wrong prior to stopping. But these two wrongs make a right because “Officer Fackrell was at most negligent.”

"Your papers, please"

“Your papers, please”

Maybe this officer was “at most negligent” in not knowing one of the most basic Constitutional rights afforded to a citizen of the United States – the right to walk freely upon the streets without being stopped to be asked for identification without probable cause. But maybe, just maybe, the officer didn’t care about Strieff’s rights and hoped he “would get lucky” and either have Strieff blurt out something useful or find something once he ran Strieff’s name. And where do you think police officers are most likely to “test their luck” once they are taught about this decision and its potential application? Rodeo Drive in Beverly Hills perhaps? Or maybe Sutton Place here in NY? You know, somewhere where they may mistakenly pick someone with money, power and influence who will complain to someone who will listen about this seemingly minor intrusion. Or rather, will they pick the ghettos and projects of poor neighborhoods, where folks know better that to try and complain about police abuse of a minor or even a major scale? My money’s on the latter, how about yours? And by coincidence, where do long-kept statistics establish where most people stopped and given summonses and tickets for minor infractions which can lead to warrants? You guessed it those very same neighborhoods.

If this potential for huge abuse of the expanded police power given by this decision was lost on Justices Thomas, Alito, Roberts, Kennedy and Bryer (surprisingly and discussed further down) it was not lost on the dissents, written separately by Justices Sotomayor and Kagan and both of which were joined by Justice Ginsburg. I won’t discuss Kagan’s decision because this post is already getting long in the tooth and because Justice Sotomayor’s is the one that hit the nail on the head and saw past how easily pretext and contrivance would justify unlawful stops in the future.

In a blistering dissent that cited W. E. B. Du Bois, James Baldwin and Ta-Nehisi Coates, Justice Sotomayor rang the alarm bell over the court’s vast expansion of police power:

“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants — even if you are doing nothing wrong.”

But even better and more important than the above language was her explanation of the obvious ramifications of this expansion of the esoteric attenuation doctrine would have on the poor and minorities. She reserved her most personal reflection for a part of her dissent which she specifically stated she wrote only for herself, and which clearly set out in detail the dangers and indignities that often accompany police stops:

“For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them. We must not pretend that the countless people who are routinely targeted by police are ‘isolated. They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter, too, our justice system will continue to be anything but.”

The only way this statement could have been made more powerful and timely is if she followed it with #BlackLivesMatter. It immediately harkened me back to her confirmation hearings when she endlessly had to explain her now famous “wise Latina” comment tht she made during a law school commencement ceremony: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” She may have gotten flak for it but it proved incredibly prophetic with this decision. How else quite frankly to explain Justice Stephen Breyer’s joining of the conservative wing for this decision? Justice Breyer failed to see what Justice Sotomayor saw – how justifying an illegal stop by the subsequent discovery of a warrant will lead to unfettered temporary detention on the public streets of lawful citizens – most of whom will be poor, Black or Latino.

Like most Supreme Court decisions, this case will have an impact far greater than the small, criminal matter involved. It not only expands police power, it will likely result in disproportionate unconstitutional stops of citizens in poor, minority neighborhoods.

Read the full decision HERE

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Jun 08 2016

Move to Recall Stanford Sex Assault Judge is Wrong

California Judge Adam Persky sentenced convicted sex offender Brock Turner to six months in jail and a period of probation. A jury had convicted Turner of sexually assaulting the victim behind the dumpster after the two met at a party. Two passersby intervened when they came upon Turner, atop the passed out woman. He tried to run away but was apprehended. The victim did not regain consciousness until she was in the hospital hours later. She had several signs of physical assault but no recall of the incident as she had been drinking at a frat party earlier.

Turner went to trial arguing that the victim had consented, but the jury was not buying it as all the evidence pointed to Turner attacking the woman when she was incapable of consent. All types of folks, (myself included) felt the sentence was very light and that the only reason Turner got it was because he was a blond-haired blue-eyed Stanford student with a swimming scholarship who appeared headed to the Olympics. The judge based his decision on the negative impact a prison sentence would have on Turner and on the fact that Turner was himself intoxicated. That only further outraged people (myself included) for two reasons (1) that type of consideration about the impact of a harsh prison sentence on a young person’s future is rarely given to most criminal defendants. Rather the severity of the crime and the need to protect the community from “a predator” has usually overridden a previously clean background and the concern for the youth’s future; and (2) College date rape is a serious problem in this country and to allow the defendant’s alleged intoxication to be a factor in decision-making on sentence sends the wrong message. In this particular case, how drunk do you have to be to not understand that you are sexually assaulting a comatose person?

Brock Turner - Stanford University

Brock Turner – Stanford University

The outrage has led to a movement to recall Judge Persky. Crowd-funding sites have sprouted up and a petition currently has some 500,000 signatures on it to recall the judge from office. This kind of instant mob mentality is a powerful tool and weapon of the internet where people can click to support or decry something without giving it any thought whatsoever. Its a way to feel we are participating and lending a voice to an issue without having to think too much or get too involved. But sometimes issues need more than just clicks and likes. Actions have consequences. Recalling a judge is a serious thing and doing so for one decision is dangerous. Judicial independence is a cornerstone of the US legal system. Judges need to feel that they can apply the law independently without fear that the electorate will rise up with the electronic version of torches and pitchforks at their chambers’ door. The crime for which Turner was convicted had a permissible sentence of range of zero to 14 years in prison. The Probation Department’s pre-sentence report (on which many judges’ rely heavily) favored a lighter sentence. The victim was permitted to read a powerful and lengthy statement in open court (which everyone should read by the way). The judge then put his reasons on the record which included the “severe impact” prison would have on the defendant. In short, he followed the law. He did not go outside the statute’s permissible sentence range; he considered the probation report; the victim’s impact statement; and the defendant’s prior criminal history and likelihood to re-offend. Now, if you found several cases where the judge favored white defendants or did not give the same due consideration for black defendants then you might have a basis to seek a recall. But this appears to be the only questionable decision in the Judge’s tenure and the DA’s office is not joining the request for a recall. Recalling a judge for one decision is not just wrong, its impulsive and dangerous. It will lead to harsher sentences and it will make judges fearful of public opinion every time they sentence a defendant. And trust me, disproportionately, the impact will fall upon minorities. You want to get rid of this judge? When he’s up for re-election put a candidate to oppose him.

After all, where was the equivalent outrage when a “tough-on-crime” judge sentenced a young black kid to 10 years for a drug sale? Our jails are full of young men and women – mostly minorities- who are sentenced to ridiculously long jail sentences for drug crimes. Until we start a recall petition to take off the bench all those judges who filled all those jail cells, this petition is wrong and ill-advised.

Follw me on Twitter @oscarmichelen

May 31 2016

Don’t Criminally Charge “Gorilla Mom”

I get it. The 4 year old who got into the gorilla area at the Cincinnati Zoo had to climb or crawl past a railed fence, walk through some brush and drop 15 feet down into the moat where he encountered Harambe, the male silverback gorilla. It took some work and we all wondered when we first heard the story “Where was Mom?.” And this fateful encounter cost the life of Harambe who was shot to death by park employees.

The Internet has roused up anger and judgment (as usual) against the Zoo officials for shooting Harambe but mostly at the apparently inattentive mother of the child. News accounts report that the child told the Mom he planned on going into the moat and she told him not to – but you know, “Boys will be boys.” In the NY Times today, an eyewitness recounts that it all happened so fast as the Mom (who is the administrator for a day care center) was holding an infant and watching four other kids.

lady justiceThe court of public opinion is quick to judge – but police investigated the scene and Zoo officials made the decision they thought was necessary to protect the child. Yes, at first Harambe was guarding and protecting the child, but as the crowd noise grew louder, he grew more agitated and began to drag the boy by his ankle. The officials could not risk giving the gorilla a chance to calm down and Harambe had repeatedly ignored commands to leave the area; the other gorillas in the habitat responded to the commands and exited immediately. Were that my child, I would want the officials to do what they thought was necessary to protect my child. These officials are dedicated to their animals and I am sure this was what they saw as their only recourse. We should give them the benefit of the doubt.

And we should do the same for the Mom as well. How can we judge her as a parent when we simply know none of the facts? As the father of three boys, who has taken them and friends on many excursions to zoos and elsewhere, I can tell you that try as you might – things happen. One child gets distracted and darts off to somewhere in a blink of an eye. Two of them fight over a toy or a treat and a fight breaks out. The most observant parent can not prevent all harm. How many of us have shaken our heads in disgust at those parents who have their kids on a leash at the mall? Well, if charges are brought against this woman, then leashes will be practically mandatory.

Do we really want a court of law to decide how someone parented at one particular point in time? Its easy to look back and judge what happened and what could have been done to prevent the harm to this beautiful animal. But we need to be careful not to have courts and judges and juries overly analyze the parenting skills of someone in this type of situation. For bad parenting to be a crime, we require more – leaving a child in a car; signs of excessive corporal punishment; repeated acts of neglect; refusal of proper medical care. To turn what appears to be a momentary lapse of parenting into a crime would be problematic and open the doors to a flood of cases brought against parents. The death of Harambe weighs heavily on this woman’s shoulder, I don’t doubt it. And that she almost lost her child will never be forgotten by her. While the media and authorities have not released her name, everyone in her community knows who she is and is whispering behind her back and will be for a long time. Perhaps the Zoo can sue her civilly for the costs attendant to the incident, the way some rescue companies sue hikers and campers when they have to get them out of situations they put themselves into. But arresting her and charging her criminally is a step too far.

May 25 2016

$1 Million Suffolk County False Arrest Settlement Could Set High Bar

Nancy Genovese, an East Quogue woman who complained that she was treated like a terrorist when she was jailed for four days for taking pictures of a helicopter at the Air National Guard base in Westhampton Beach, will get $1.055 million in a federal court settlement with Suffolk County.The settlement came to light Tuesday when the county legislature’s budget committee voted unanimously to authorize borrowing to pay her in her federal civil rights lawsuit. The trespassing charge was dropped several months after her arrest. Now as someone who has worked on wrongful conviction and false arrest cases for nearly all of my 30 years of practice, I am the first person to say that large sums of money should be awarded to folks whose civil rights were violated or who were wrongfully incarcerated. But this case raises some questions about the County’s decision.

Genovese, 60, a retiree with no prior record, was arrested for trespassing in 2009, strip-searched and jailed for four nights before she could raise $50,000 bail. Genovese had taken photos from outside the air base, which she said she intended to use for a website to support the troops. She was held outside the air base for six hours while police searched her car. The vehicle contained a shotgun, an assault rifle and several hundred rounds of ammunition. Genovese owned the weapons legally and had them at a shooting range earlier. She also had $6,000 in cash in her possession. But Ms. Genovese was not trespassing at all as she was taking her photos from a public highway and not from the air base itself, which is what arresting police officer Robert Carlock falsely reported. Carlock also participated in drafting a press release that said Ms. Genovese was a suspected terrorist which undoubtedly led to the high bail for this misdemeanor charge. After hiring high-profile lawyer Robert Gottlieb,the charges against her were dismissed in the interest of justice after about four months.

Nancy Genovese Photo courtesy Howard Schnapp - Newday

Nancy Genovese Photo courtesy Howard Schnapp – Newday

Four nights in jail,four months of prosecution and no trial or appeal. Also, when they came upon the guns in the trunk, the cash and that her last name is the same as the crime family that orchestrated the Lufthansa heist at JFK airport, that’s a lot more suspicious evidence than they have had in other wrongful conviction cases for sure. I’m not saying its enough -after all, the whole search was premised on a lie since she was on public property- I’m just saying. Federal Judge Joseph Bianco reduced a jury’s $1.1 Million verdict to $700,000 which Ms Genovese and her lawyer accepted. In reducing the award, the court did state that it recognized that this was a lot of money for the short length of time Genovese was held and prosecuted but said the large award was justified for her being labeled a “terrorist.” But folks wrongfully labeled as murderers or rapists routinely are awarded about $150-$200K for every year of incarceration. And that’s what Suffolk County’s Marty Tankleff got in a settlement after he was falsely labeled as the ruthless killer of his parents. Is that so much better than being labeled a terrorist?

So if the judge said the case was worth $700,000 why did cash-strapped Suffolk County pay over a million? According to Newsday, legislative officials said the county made the settlement as a way of avoiding another trial in which Genovese could seek punitive damages and recover legal costs. “With punitive damages, it could have been the sky is the limit,” said Legis. Louis D’Amaro (D-North Babylon), budget committee chairman. OK but just one thing – it is nearly impossible to get punitive damages against a municipality; the law only allows it for a repeated pattern of unconstitutional activity and that was not even part of Ms Genovese’s claim. Furthermore, the County could have filed an appeal arguing that Bianco was wrong to value the case at $700K especially since most of the cases he relied upon awarded far less for similar periods of time in jail. The appeal would have held off payment of the judgment for years (and no interest runs against the county while the appeal is pending). The whole thing makes me shake my head in wonder a little bit. I think because Ms. Genovese was an older white woman, everyone involved could empathize with her more and therefore understand the stigma, pain and stress one faces when false charges are being leveled against you. She was hit particularly hard – having to be placed on suicide watch while she waited to be bailed out.

On another note, perhaps this settlement will set the bar for others who have been wrongfully arrested and prosecuted in Suffolk County and other parts of the State. At the least, the case points to the need to see each case individually and not apply a cookie-cutter formula in trying to address these wrongs. Kudos to Ms. Genovese and her lawyer Frederick Brewington for pursuing this case and getting this result. Let’s hope it sends a strong message about the harm that false arrest and imprisonment cause.

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