Thursday, May 27, 2021

A Criminal Injustice

 This article by Michael Harriot at The Root: A Criminal Injustice: How a City Ignored the Rape, Murder and Terrorism of Black Women for Four Decades is a compelling read:

This is a story about a law enforcement officer in Kansas City, Kan., who elected officials, private citizens, lawmakers and fellow police officers who have [been] publicly accused of corruption, sexual assault and even murder. But this is not a story about a man. This is not a story about a police officer. This is not a story about Kansas City, a rapist, a serial killer, policing or America. This is a story about us.

The players are all-too-familiar to the Kansas defense bar, as are the stories of prosecutorial  corruption and police violence: AUSA Terra Morehead, former WyCo DA Jerome Gorman, former KCK police Chief Terry Zeigler,  and former KCK Detective Roger Golubski. Again we find that investigative journalists are doing the hard work that has been buried or abandoned by the Department of Justice or the Kansas Disciplinary Administrator. Much of this article echoes the tremendous work done by the Kansas City Star.

Harriot expounds on the facts that we already know to explain the deep racism where "white America ignored the way law enforcement officers treated Black people." For example, he retells the facts about police and prosecutors coercing false testimony from witnesses in order to convict Lamont McIntyre:

"Golubski, two detectives and Terra Morehead showed up at my door,” Niko [Quinn] told The Root. “I wasn’t home. But they told my aunt and my cousin who was living with me at the time to tell me that I need to get in touch with her. And if I did not contact her ‘sooner than later,’ she was gonna take my kids from me, and I’ll never see my kids again...That was the first threat she made. 

Harriot's survey is not limited to that one case. As one person noted, "We don't know how many Lamont McIntyre's are behind bars." Instead, "The Root has interviewed dozens of witnesses, reviewed dozens of court cases and pored over thousands of pages, uncovering one of the widest-ranging examples of state-sponsored terror against Black women this country has ever seen.He lists at least a dozen Black women who have died in Wyandotte County, and "each of these unsolved murders are connected in some way to the king of the Kansas City Police Department’s detective unit, Roger Golubski." 

The trauma to these families and to this community is impossible to fully describe or quantify. But they are Black families and a Black community, and that explains, in part, why there has been no reckoning. As of today, no law enforcement or prosecutor has been held to account for their abusive conduct or forced to explain what happened to these murdered Black women. Harriot continues:

That the most powerful white people simply chose not to care about rape, corruption and dead bodies popping up everywhere is a disconcerting thought for most people. For me, their naive astonishment is the most astonishing part. It is stunning how many people can’t believe a thing like this can happen, even knowing that things like this have always happened. According to one report, police sexually assault at least 100 women every year. The most likely reason Golubski was never arrested is also the most unsettling:

           Because his victims were Black women. 

It is clear that we cannot entrust restorative justice to prosecutors, including those who promise conviction integrity review. Federal prosecutors protect their own, including their own law enforcement. The question now is whether those in power like Governor Laura Kelly, Representative Sharice Davids, and the Kansas Supreme Court--the court that literally gives license to these prosecutors--will finally demand some answers. But they been silent so far.

-- Melody


Tuesday, May 25, 2021

She blinded me with junk science

The rules of evidence don't apply at sentencing. FRE 1101(d)(3). But that doesn't mean that anything goes. At the very least, sentencing evidence must be reliable, whether it comes from police officers, codefendants, girlfriends, drug addicts, or confidential informants. See, e.g., United States v. Padilla, 793 Fed. Appx 749 (10th Cir. 2019) (police report); United States v. Dahda, 852 F.3d 1282 (10th Cir. 2017) (codefendants)United States v. Fennell, 65 F.3d 812 (10th Cir. 1995) (girlfriend); United States v. Richards, 27 F.3d 465 (10th Cir. 1994) (drug addict); United States v. Ortiz, 993 F.2d 204 (10th Cir. 1993) (confidential informant); accord USSG 6A1.3(a) ("In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.") (emphasis added).

To that end, why not argue that scientific, technical, and specialized evidence should be subject to something like a Daubert inquiry before your sentencing court relies on it? Think risk-assessment tools, mental-health evaluations (especially those done in jail/prison settings), traditional forensic evidence, cash-equivalency assessments, drug-quantity approximations---you get the picture. After all, reliability is the touchstone of Daubert. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993) ("[t]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable").

For more on this front, check out Maneka Sinha, Junk Science at Sentencing, 89 Geo. Wash. L. Rev. 52 (2021).

And remember: Object to any statements in the PSR that lack a reliable evidentiary source, and put the government to its burden of proving reliability at sentencing.

Thursday, May 13, 2021

The Myth of Objectivity in Fourth Amendment Jurisprudence

From Juval Scott, FPD WDVa, The Myth of Objectivity in Fourth Amendment Jurisprudence is part of the ABA Criminal Justice Section Spring 2021 edition on Racial Justice. From a  historical perspective, Scott explains how  "objectivity" is a myth and why we need a racially informed approach to the Fourth Amendment:  

People of color, especially Black and Indigenous Americans, do not have the luxury of revising history and how it defines our existence in the United States. . . . . Embedded in the fabric of this country is a horrific history, and our legal system continues to perpetuate the less-than-equal historical legacy among Black, Indigenous, and people of color (BIPOC).

This is a powerful piece of writing, and should be required reading for all defense attorneys. Because the courts have largely failed to do so, it is incumbent on the defense bar to invoke "the influence of history, community dynamics, and policing practices in assessing whether citizens feel free to terminate an encounter with law enforcement." Does anyone really believe that a young person of color would feel free to walk away from the police? That is a myth perpetuated by police and prosecutors and embraced by the courts under the guise of objectivity.   

One particular lesson is this: Whren must be overturned. Whren says that police may stop someone for a pretextual reason when they don't have sufficient cause to stop for the real reason. It was bad law when authored by Justice Scalia in 1996, and it is worse today. "Whren provided the playbook for law enforcement to prey on communities of color under the guise of necessary traffic enforcement." When the judiciary condones and encourages police to lie--which is the foundation of Whren--the system is complicit in corruption and abuse. And that judicially-granted entitlement to lie is a significant reason that the "BIPOC community has been and still is terrorized by the police." 

Likewise, when courts continue "to protect police under the guise of qualified immunity, and, at the same time, admits illegally obtained evidence by those same officers, [they are]  complicit in gutting constitutional rights for the BIPOC community." This evinces a greater interest in "police welfare and perception than the [constitutional] deprivation itself." 

It is past time for a radical change in how we understand and apply the Fourth Amendment, if it is to ever have any meaning or credibility for our clients of color. "[I]t is past time for an honest conversation about race and the Fourth Amendment.

-- Melody


     

Monday, May 3, 2021

Speedy trial & release rights during a pandemic

We want to keep our families, our clients, and our communities healthy during a pandemic. But we also want to protect our clients' rights---including their statutory and constitutional rights to a speedy trial (or at the very least release pending a delayed trial). And yet emergency order after emergency order has halted trials in district courts around the country. Something's gotta give at some point---right?   

Not yet (but maybe soon), at least according to a pair of cases decided by the Ninth Circuit last month.

Client on release; continuance authorized under Speedy Trial Act. In United States v. Olsen, the Ninth Circuit held that a district court abused its discretion when it granted Mr. Olsen's motion to dismiss based on the Speedy Trial Act. Specifically, the district court erred when it concluded that the pandemic did not justify an "ends of justice" continuance over Mr. Olsen's objection. Here's what the Circuit had to say about the ends of justice and COVID-19:

It is true “that the ends of justice exclusion . . . was intended by Congress to be rarely used, and that the provision is not a general exclusion for every delay.” . . . . But surely a global pandemic that has claimed more than half a million lives in this country, and nearly 60,000 in California alone, falls within such unique circumstances to permit a court to temporarily suspend jury trials in the interest of public health.

Client detained; release may soon be required on due-process grounds. In United States v. Torres, the Ninth Circuit affirmed a district court's denial of Mr. Torres's statutory and due-process-based motion for release. But the Circuit cautioned in Torres that "the length of Torres's pretrial detention is likely approaching the outer bounds of due process":

On balance, we conclude that Torres's twenty-one-month detention does not yet violate due process, but we caution that the length of Torres's detention is approaching the limits of what due process can tolerate. The length of Torres's pretrial detention is significant under any metric and is deeply troubling. But the lack of any prosecutorial contribution to the delay and the strength of the evidence supporting Torres's detention lead us to conclude that Torres's detention is rationally connected to a regulatory purpose—preventing danger to the community and ensuring Torres will appear as required. . . . However, all parties agree that at some point, regardless of the risks associated with Torres's release, due process will require that he be released if not tried. . . . And if Torres is not tried by his current trial date of May 25, 2021, the district court and the prosecution must consider whether further prolonging Torres's pretrial detention crosses the line from regulatory to punitive detention.