Tuesday, January 27, 2015

Addressing Concerns with Body Cameras

File:Lapel cameras (9816063276).jpgAfter the recent Michael Brown and Eric Garner, many have called for police to wear body cameras, and some police departments have already begun to implement the devices.  Body cameras would resolve most of the factual disputes that can arise during a police encounter; however, skeptics have brought to light several societal and privacy concerns that we must address before fully incorporating a camera into the police uniform.  First, departments must create strict protocol regarding the activation and deactivation of the body cameras.  Second, departments must establish proper standards for the use and storage of the video.

Friday, January 16, 2015

Living and Dying Behind Bars: The Implications of Juvenile Life Without Parole

To the outside world, fifteen-year-old Jacob Ind seemed to have it together. He got good grades, was a member of the debate club, and even played on the high school football team. But behind closed doors, his life was out of control. He never felt loved. Not by anyone. Not by his mother who was cold, critical and distant, and certainly not by his alcoholic stepfather who was a mean drunk. Jacob dreaded coming home. His mother never shied away from telling him that he was an unwanted mistake and it was difficult to escape his stepfather’s violent rages and inappropriate sexual predilections. For years Jacob and his older brother Charles suffered horrific sexual abuse at the hands of their stepfather, Kermode Jordan. Jordan would wait for the boys to come home, sneak up behind them and then drag them into the bathroom where he would tie them to the toilet, undress them and proceed to abuse them. Sometimes Jacob’s mother would taunt him and sometimes she would even join in.  He couldn’t take it anymore. In the early morning hours of December 17, 1992, Jacob shot and killed his mother and stepfather. On June 17, 1994, he was convicted of two counts of first-degree murder. As required under Colorado law at the time, he was given a mandatory sentence of life without parole. Now thirty-seven years old, Jacob has spent the majority of his life behind bars. The entire trajectory of his life was determined before he was even old enough to drive a car. Jacob, like the hundreds of individuals sentenced to life in prison without parole for crimes that they committed as children, will likely die behind bars.

Tuesday, January 13, 2015

Incentivized Witnesses: A Threat to Prosecutorial Integrity?

On December 18, 2014, Rickey Dale Wyatt became the 325th person in the United States exonerated through post-conviction DNA testing.  Wyatt had been charged and convicted of aggravated rape stemming from an incident occurring on November 1, 1980.  In 1981, he was sentenced to ninety-nine years in prison.  Wyatt initially secured his release in 2012 through the assistance of the Innocence Project, in cooperation with the Dallas County District Attorney’s Conviction Integrity Unit.  This unit, started in 2006 under then-District Attorney Craig Watkins, was the first of its kind in the United States. Today, the Center for Prosecutorial Integrity credits these such units with “forging a new model of justice,” and the organization’s front page contains links to sixteen units in thirteen states, the most recently created in Pima County, Arizona.  In light of the creation of these units, perhaps it is a good time to examine the role prosecutorial practices play within the overall scheme of prosecutorial integrity.  More particularly, this blog post will focus on the use of informants and incentivized witnesses in the prosecutorial scheme.

At first glance, the potential issues with the use of informants, especially incentivized informants, can be fairly obvious:  it is likely that few people would be surprised to hear that an incentivized informant may mislead or lie in hopes of receiving the incentive.  The Innocence Project credits “informants and snitches” as one of the common causes of wrongful conviction, which credits such witnesses as a factor in eighteen percent of wrongful conviction cases overturned by DNA testing.  Often, the Innocence Project states, “statements from people with incentives to testify—particularly incentives that are not disclosed to the jury—are the central evidence in convicting an innocent person.”  In 2005, the Northwestern University School of Law’s Center on Wrongful Convictions published the results of a survey which indicated that “snitch testimony is the leading cause of wrongful convictions in capital cases.”  At the time of the survey, there had been 111 death row exonerations since the 1970s, with incentivized witnesses (“snitches”) playing a major role in 51 of those cases.  The survey indicates that the most common of these incentivized witnesses were jailhouse informants promised leniency in their cases or others who may have an incentive to lie.

Some states appear to attempt to counteract the effects of incentivization through jury instructions which specifically address the use of informant testimony.  By way of example, Connecticut has a jury instruction which defines an informant as “someone who is currently incarcerated or is awaiting trial for some crime other than the crime involved in this case and who obtains information from the defendant regarding the crime in this case and agrees to testify for the state.”  The instruction allows the jury to consider a number of factors, including “any benefits received in exchange for the testimony.”  Maryland also has a similar jury instruction focusing on informants who are promised leniency or personal advantage.[1]  Unlike the Connecticut instruction, the Maryland instruction simply advises the jury to weigh an incentivized informant’s testimony “with greater care than the testimony of an ordinary witness.”[2]  However, these jury instructions can’t help but beg the question:  is this enough?  While the use of informants is a “recognized means of law enforcement,”[3] even with jury instructions there is always a risk that the informant may lie for their personal gain and that those lies might result in a wrongful conviction. 

Prosecutors should be very careful in their use of incentivized witnesses in cases with little solid evidence upon which to rely.  Incentivized witnesses are just that:  individuals who differ from “traditional” witnesses in that they have a much more personal stake in how their testimony pans out.  For these individuals it could mean a reduced sentence, lesser charges, or release.  Prosecutorial integrity should be foremost in any plan which involves utilizing informants.

Trevor Addie
Blog Editor, Criminal Law Practitioner

[1] See 1-2 MD Criminal Jury Instructions and Commentary § 2.27.
[2] Id.
[3] Id.

Saturday, January 10, 2015

Lack of Due Process for Immigration Detainees

The right to due process of the law is something that we take for granted as Americans. Although at times we may not feel that due process is achieved or that the criminal justice system is perfect, it is generally accepted and expected that due process is a right and is the goal. Except for a few limited rights specified in the Constitution, the rights this country is founded upon are not granted only to American citizens. They are extended to all within our borders. They are meant to give people peace, security, hope, and the structure they need to be happy, productive members of society. Because of these guiding principles and beliefs the United States has welcomed many waves of immigrants—people who made sacrifices to leave behind past circumstances, full of hope for a better life in a new home. This has occurred for centuries. Why then, is there a question about whether we will welcome and protect those fleeing from the direst of circumstances?

Tuesday, January 6, 2015

Police Use of Force: Insufficient Training

Editor’s Note: This is part two of a two part blog post examining police use of force. Part one examines the deferential legal standards applied to police use of force. Part two examines the relationship between officer training and police use of force.

Continuing from last weeks post on the deferential legal standards that allow police officers to use force without fear of any form of accountability, this second part focuses on the need to train police officers to be members of a community. To facilitate trust amongst the citizens living in the neighborhoods they patrol, officers can unilaterally diminish the frequency with which they must resort to force.  As such, the police departments should foster this idea in the way they train current and future police officers.

II.     Insufficient Training

One of the faults assigned by the Department of Justice to the Albuquerque Police Departments (APD) alarming number of killings by police was APDs insufficient training.  For example, a testifying training officer in a civil suit where the court found an officers particular use of force unreasonable, called the officer’s actions “exemplary,” and would serve as an example used to train future officers in the police academy of appropriate uses of force.  We cannot allow such misguided training to continue.  The increasing militarization of police is also emblematic of an increasingly hostile attitude police departments are developing towards the citizens they are sworn to protect.

An element of proper police training should focus on fostering a force that is focused on constitutional policing.  Surely most police forces provide at the very least a basic tutorial on the appropriate use of force based on the situation the officer is facing.  However, constitutional policing would be centered on teaching officers the law that allows them to use such force.  This would allow officers to consider the rights of the citizens they encounter in relation to the tools of lethal and non-lethal force available to them.

A separate yet indispensable aspect of constitutional policing is making sure a force is community-oriented.  Such policing must be founded on trust between the community and the force that serves it.  Police forces should be building relationships with the communities they serve.  This would abolish that Us vs. Them mentality.  Examples of such community oriented, constitutional policing can be seen across the country.  For instance, officers from the southeast division of the Los Angeles police department help coach youth football and track teams comprised of kids living in the communities they patrol.  While building trust between police officers and citizens is much more complicated and difficult than simply coaching a little league football team, these types of efforts are vital in starting a relationship founded on trust which will inevitably take time.

The importance of accountability mechanisms within police departments cannot be understated.  Given how difficult it is for an injured citizen to seek recourse through the courts, the most practical means to stemming the improper use of force by officers is through deterrence. Every instance of force should be reported to the officers superiors.  Further, these instances must be placed on the record and reviewed using internal oversight mechanisms.  These measures already exist in police department protocols. However, the chain of command is broken.  The DOJ reported that APD had an oversight process, but it was hardly utilized rendering it meaningless.  To help ensure the department is diligent in this oversight process, each and every review of a polices use of force should be fully reported and published for the public to see.

As for the punishment of police officers who violate a citizens Fourth Amendment right against unreasonable seizures, whether it be through sanctions or taking away their badge, police officers should be held to a higher standard based on the tremendous responsibility we as a society impart on them in order to protect us.  Further, these options do not have to be drastic but rather gradual in their severity.  By identifying officers who need to undergo further training, departments can avoid any need to first resort to punitive measures while simultaneously altering the culture within police forces into one that seeks to be community-centered and much more than simply a law enforcer.

Society arms police officers each day to go out with legal license to use force - when appropriate - in order to protect themselves, but also to serve the community.  This is a great responsibility that must be accompanied with adequate oversight and accountability.  We should hold our police forces to greater scrutiny commensurate with the responsibility they are bestowed.  As such, police departments must provide officers with the best training that focuses on the community and not simply on prevention.  In cases where - despite such training and oversight - an officer continues to use force impermissibly, the courts should be a viable option to the injured party.

Robert Maes
Staffer, Criminal Law Practitioner

Jones v. United States: Punishment Without Conviction?

Federal sentencing law is widely applied to punish offenders not only for offenses of which they have been convicted, but also, in the same proceedings, for offenses of which they have not been convicted.  When convicted of at least one charge, a judge may consider relevant conduct in sentencing the defendant, and even increase the sentence for charges that were never charged.  Scholars are split on the subject.  On the one hand, some argue the use of relevant conduct at sentencing is often legitimate.  Others object to the practice because “the addition of the relevant conduct result[s] in the identical punishment range which the defendant would have encountered had [they] been convicted on all counts.”

In October 2014, the Supreme Court declined to hear Jones v. United States, which would have addressed the issue.  The National Law Journal summarized the facts as:

[A] District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, When U.S. District Judge Richard Roberts sentenced the three, he said he ‘saw clear evidence of a drug conspiracy,’ and sentenced Ball, Thurston, and Jones to 18, 16, and 15 years in prison respectively – four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to the filings with the Supreme Court.

Following the Court’s refusal, Justices Scalia, Thomas, and Ginsburg filed a dissent to the Court’s refusal to hear the Jones v. United States, saying:

“We have held that a substantively unreasonable penalty is illegal and must be set aside. … It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable – thereby exposing the defendant to the longer sentence – is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.”

So why did the Supreme Court decline to hear the case? Particularly, why did the other justice, the usually left-leaning justices, decline?  One explanation is that on criminal justice cases, the Court doesn’t generally separate into the traditional right-left coalitions you might expect.  Another explanation is that the facts of Jones were “too good” to be a vehicle for making a broad pronouncement on the issue.  Margareth Etienne, a law professor at the University of Illinois, explained, Jones involved a judge ignoring an acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of the plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved.” Consequently, there appears to be a disjunction between the trial and sentencing stages that allows for the punishment of defendants for offenses of which they were never convicted or even charged, despite condemnation by some Justices and Sixth Amendment concerns.

For the prosecution, it appears that the elements of a crime may be lax or need not be met at all.  Prosecutors may choose not to bring up charges because they lack sufficient evidence to prove all elements of a crime.  However, their task may be merely to convince the judge that the context of the defendant’s conduct, relative to another offense he/she is convicted of, is sufficient to find that a crime has been committed, and not that the actual crime has been proven.  For the defense, It may be necessary to not only deny the alleged charges, but also to contemplate the judge’s subjective thoughts on the defendant’s relevant conduct, and deny any charges that may arise thereby.  This task seems impossible, and obviously favors the prosecution and punishment, in a country that already has the highest incarceration rate in the world.  Ultimately, while the practice of sentencing without a conviction is not codified, it is nothing new and will likely continue until the Supreme Court sees another case like Jones to challenge the practice.  That may take some time, and the Court may deny revisiting the issue, again.  Until it does, the old adage “innocent until proven guilty” may have little practical meaning for people convicted of federal crimes.

Kyle Kemper
Staffer, Criminal Law Practitioner 

Friday, January 2, 2015

Your Pets and the Police

Dogs. They are man’s best friends. They give unconditional love and loyalty, asking for nothing in return. These animals become a part of the family. It is no wonder that there are approximately between 70-80 million dog owners in the United States, which amounts to between 37 to 47 percent of all households.  With dog ownership being so prevalent in the United States, it is not hard to imagine that these animals may also become involved in situations concerning people—namely interactions with police.

Tuesday, December 30, 2014

Police Use of Force: Deferential Legal Standards

Editor’s Note: This is part one of a two part blog post examining police use of force. Part one examines the deferential legal standards applied to police use of force. Part two will be published next week and will examine the relationship between officer training and police use of force.

In December 2009, Albuquerque police responded to a domestic violence call where they discovered a man had doused himself in gasoline.  Several police officers managed to place the man in handcuffs and removed him from the apartment.  The man resisted the officers by banging his head against the wall.  In response, several officers used their Tasers in drive-stun mode[1], setting the man on fire.  This account is one of many examples listed in the 2014 Department of Justices civil investigation into the practices by the Albuquerque Police Department (APD).  The findings concluded the department engaged in a pattern or practice of excessive force--in many cases deadly force--violating the Fourth Amendment’s right to be free from unreasonable seizures.
This is one of many examples nationwide where police officers are inadvertently escalating situations which in turn allows officers to use more serious uses of force.  Particularly with the introduction of non-lethal devices such as Tasers, officers are more frequently using force when encountering an obstinate or difficult citizen.  These tactics, however, are dangerous as they quickly escalate police encounters, leading to the officers perceiving a greater threat from citizens.  As a result, these instances can result in police using deadly force on citizens, even though the citizen posed no similar threat to the officer.
A recent study revealed, that 84% of all persons who came into contact with the police believed the police acted improperly.  Yet, only 14% of those persons filed a complaint.  Of all the complaints brought, 95% had insufficient evidence to sustain a claim that the officer used unreasonable force.  These statistics do not necessarily invalidate the citizens complaint.  These studies are accompanied with the caveat that because the definitions and measures of force vary greatly among jurisdictions[2], there can be no way to definitively say how many instance of force by police are in fact unreasonable.  For instance, the Police Executive Research Forum (PERF) study on APDs use-of-force policy showed that police shootings increased despite a downward trend of violent crimes committed against officers.
In other cases, police unilaterally escalate an encounter from the start. For example, a SWAT team conducted a midnight raid of a Detroit home where seven year-old Aiyana Stanley-Jones was asleep on the couch.  There was no immediate danger of bodily harm to the officers posed by anyone located within the home.  Before entering the house, the police threw a flash-bang grenade into the living room, lighting Aiyana’s blanket on fire. Police then entered the house and shot once, killing Aiyana. Aiyanas death was the result of aggressive behavior initiated by the police.  The SWAT raid was conducted to execute an arrest warrant, something the police could have done during the day, in public - without need for flashing grenades.  Yet, while these police-escalated events take place, the law prevents a victims effective recourse.
This two-part blog post does not assert that in all cases police intentionally escalate situations to use lethal force every chance they get.  Whether it be inadvertently or intentionally, the central premise is that both a lack of proper training by police departments and a deferential legal standard has made it increasingly easy for police to unilaterally escalate encounters without any opportunity for accountability.

I.       Deferential Legal Standards
Over the years, the Supreme Court has formulated standards governing the permissible uses of force by police officers.  The Supreme Court held deadly force is not a permissible use of force unless it is necessary to prevent a suspects escape and the officer has probable cause to believe the suspect poses a significant threat of death or serious bodily harm to the officers or others.  In Tennessee v. Garner, the court created a balancing test to determine the reasonableness of future instances of force.  This test pits the personal interests of the suspect against the governments interest to effective law enforcement. Today, this balancing test has evolved into an overall reasonableness test where the amount of force used by an officer must be reasonable in light of the threat and danger posed.[3]
The case law is clear, however, that so long as an officer has a reasonable belief that her life or others is in danger[4], the use of force used (including deadly force) will likely be proportionate in light of the governments interest in effective law enforcement.  However, a police officers intent or motive behind the use of such of force is immaterial to the reasonableness inquiry.[5]  While a fact specific analysis is an important opportunity to meaningfully question an officers use of force, a reasonableness determination tends to be deferential towards the police officer simply because the boundaries of the vague, yet compelling interest of effective law enforcement administration have not been clearly defined.  Often times, the facts used by judges in their rulings are the ones alleged in the incident report filled out by the very police officer whom the defendant may allege escalated the situation.
Further, without being able to consider the subjective intent of the officer, the judge is left with an objective inquiry that fails to consider important, extrinsic facts such a race, age, personal experience, all of which may influence how a police officer reacts in any given situation.  These subjective factors are just as relevant as the objective ones.  For the Supreme Court to remove the intent of the officer is to remove vital, informative aspects to determining whether an officer was justified in using force.
Lastly, it is very easy for an officer to have a reasonable belief that her life is in danger.  Especially given the nature of the work, there is much to give an officer cause to be afraid for her life.  As such, some will act preemptively for fear that the citizen will try to harm the officer first.  This mentality is understandable; however, it is dangerous and potentially destructive, leading to a culture of Us vs. Them, when policing should be community-oriented and not merely preventative.  Officers assume their role willingly as a profession.  The universal slogan adorned on many police cars nationwide To serve and protect is often read as just To protect.  Yet, in light of the recent events from Ferguson, Cleveland, and New York City, many ask, Whom are the police protecting?

Robert Maes
Staffer, Criminal Law Practitioner

[1] Meaning that they applied the Taser directly to his body instead of firing prongs from across the room.”
[2] See generally, Bureau of Justice Statistics, Use of Force materials, http://www.bjs.gov/index.cfm?ty=tp&tid=703
[3] See Scott v. Harris, 550 U.S. 372 (2007) (We must slosh our way through the fact bound morass of reasonableness).
[5] Graham v. Connor, 490 U.S. 386, 397 (1989) (the question is whether the officers actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation).