New Mexico PD Still Shooting Innocent People
Another Albuquerque police office fatally shot a man suspected of stealing a car — not murder, not sex assault, just car theft. It’s become a regular thing for those guys.
NACDL in the Forefront of Clemency Action
I’ve always been very proud to be a member of the National Association of Criminal Defense Lawyers (“NACDL”) and never more so than these days when the organization is poised to help process huge numbers of clemency applications for non-violent offenders serving Draconian prison sentences. As the NACDL press release explained:
“On January 30, 2014, the United States Department of Justice announced an ambitious program to provide clemency for certain federal inmates serving long sentences for certain non-violent crimes. In a speech delivered on that day, Deputy Attorney General James Cole called upon the nation’s bar to assist potential candidates in assembling effective, appropriate and focused commutation petitions for consideration by the Department of Justice and President Obama. And yesterday, Attorney General Holder announced:
“Later this week, the deputy attorney general will announce new criteria that the department will consider when recommending applications for the President’s review. This new and improved approach will make the criteria for clemency recommendation more expansive. This will allow the Department of Justice and the president to consider requests from a larger field of eligible individuals. Once these reforms go into effect, we expect to receive thousands of additional applications for clemency. And we at the Department of Justice will meet this need by assigning potentially dozens of lawyers – with backgrounds in both prosecution and defense – to review applications and provide the rigorous scrutiny that all clemency applications require.”
“In essence, the program is expected to focus on those people whose sentences would likely be lower if they were sentenced under current sentencing laws or policies. Since the first announcement of this initiative in early 2014, the National Association of Criminal Defense Lawyers (NACDL) has participated with a number of groups who have long sought sentencing reform to implement Clemency Project 2014, a joint project under which a number of groups will independently participate in recruiting volunteer lawyers to assist inmates seeking clemency and to provide training and logistical support for those lawyers. The goal of the project is to ensure that every inmate who may qualify for relief has access to counsel who can provide high quality representation in preparing the most effective petition possible in the light of the criteria to be articulated by the Justice Department.”
America has more citizens in prison, per capita and in actual numbers, than any other country in the world. Hard to believe, isn’t it? The Obama James Burdickistration’s goal is laudable, but would not be possible without the concurrence of even the most conservative on Congress; not surprisingly, they concur only because the result will be a cost savings to the US Treasury. But, whatever their motivations, hundreds of non-violent offenders will finally see their sentences reduced to what they should have been in the first place.
So, kudos to President Obama, Attorney General Holder, and particularly the NACDL, which has always been in the forefront of protecting the rights and liberty of citizens accused of crimes.
“Why do you need a lawyer if you haven’t done anything wrong?”
This is what suspect after suspect is told by most investigators – including federal agents – when they say they want to talk with an attorney before being interviewed. To make matters worse, federal agents have been employing a long-standing “tradition” of tricking interrogation subjects into making a false statement — which, though not a single person outside the criminal justice system knows is a five-year felony. It’s under Title 18 United States Code, Section 1001 — false statements to a federal agent.
(There is no comparable statute in Michigan.)
So, they ask the subject questions that they already know the answers to, in the hope the person will lie because of fear, guilt, protecting a relative or friend or a host of other reasons. Now they have him where they want him – you’re facing five years in prison because you just lied to us, and you have no alternative but to cooperate.
Finally the Justice Department has relented and told the Courts that it will no longer prosecute someone for these 1001 violations unless they actually knew that lying was a federal crime.
Burdick Law Works to Protect Clients – While Police Lies Put Innocent People in Prison
Here’s what happens when police believe closing cases, and getting promotions, raises and kudos, are more important than actually getting the real bad guys. The fact that this guy is not in prison for what he did to so many innocent people is appalling.
At Burdick Law, we have worked vigorously to expose lies and have succeeded repeatedly in demonstrating to juries when agents have lied. In one case, a man was charged with 9 separate charges of extortionate credit transactions – loansharking – under this statute:
He had been loaning money at 4% interest per week to honest hard-working people who had been unable to get bank loans for emergencies – replacement of front windows broken by rock-throwers – because of where they lived, or their credit history. The government had this defendant dead to rights, with a dozen or more recorded phone conversations between the defendant and his main coconspirator — who was cooperating with the government by then – during which he discussed tactics to collect the “interest.” Like: “Do whatever you have to but get that vig (interest),” including breaking arms and legs.
The government’s key witness, however, decided to puff himself up on the stand, exaggerate his importance to the conspiracy, and made numerous ridiculous claims that were easily disproven. Instead of letting that go, the government put an agent back on the stand to try to “rehabilitate” their witness — but through vigorous cross-examination of the agent, the jury came to believe he was not being honest with them. And that was that — not guilty on all nine charges.
This New York Times article lays out just how bad some police are. It’s a terrifying example – one of too many, unfortunately – of police gone wild:
December 27, 2013
Louis Scarcella’s Ex-Partner Is Coming Under Scrutiny in Brooklyn Cases
Behind his back, Stephen W. Chmil was called Robin — the quiet sidekick to his more handsome, daring and celebrated partner.
Batman was Louis Scarcella, a star detective known for making arrests and getting convictions in the crime-plagued Brooklyn of the 1980s and ’90s. He and Detective Chmil spent a dozen years together as part of a roving homicide unit in Brooklyn North that investigated more than 500 murders a year.
“I don’t know who loved being a detective more — him or me,” Mr. Chmil recalled.
Their legacy was deeply tarnished in March when they were accused of lying and cheating to make a high-profile case stick. At the Brooklyn district attorney’s request, a judge ruled that the man convicted in that case, who spent 23 years in prison, should go free.
That, and misconduct allegations found in other cases, prompted District Attorney Charles J. Hynes to reopen the cases of 56 people arrested by Detective Scarcella who were convicted at trial.
Even in scandal, Mr. Scarcella stole the spotlight. Despite at least a half-dozen claims of innocence from men Detective Chmil (pronounced Ch-MILL) investigated, his cases were not included in the highly unusual review by the district attorney’s office.
But court records and interviews show the same pattern of cajoled and inconsistent witnesses appeared in Detective Chmil’s work as in Detective Scarcella’s. The Exoneration Initiative, a nonprofit group in Manhattan, has documented at least five cases of Detective Chmil’s that raise significant questions; no other New York City detective’s name appears more frequently than Mr. Chmil’s in the Initiative’s caseload of 300 convictions that are deemed probably wrongful. Witnesses and convicts have said they believe Detective Chmil invented confessions, coached witnesses and persuaded others to change their descriptions of perpetrators to match the suspect in custody — even in cases he worked without Detective Scarcella.
Mr. Chmil, who is 64 and retired, forcefully defended his work and his partner’s. At the same time, he was more apt to concede mistakes than Mr. Scarcella has been in interviews, saying the crush of murders made it nearly impossible to avoid occasional sloppiness.
“They can look at all my cases,” Mr. Chmil said in one of a series of interviews this year.
“I don’t see them finding anything that was done wrong. I sleep at night. I’m a Christian. I never intentionally locked up the wrong person.”
He said he and Detective Scarcella were busy enough with the guilty people that they had no cause to lock up the innocent. If they were lax with cases, it was the ones that received scant attention and went unsolved, because the death rate kept rising, he said.
A native of Staten Island, Mr. Chmil joined the Police Department in 1968. He was assigned to the Brooklyn North homicide squad in the late 1980s. He was paired with Detective Scarcella, and the two became fast friends. Detective Scarcella, a runner, encouraged the plumper Detective Chmil to take up marathons. They ran, solved cases and took vacations together.
“He was the best partner I ever had,” Mr. Chmil said. “One thing was, Louis is a good-looking guy. Louis got more confessions and statements out of women. Me, I’m frumpy and balding. People trusted Louis.”
In their 12 years together they gained reputations as detectives who worked hard and brought in suspects, but were willing to bend the rules. If they did not want prosecutors or defense lawyers to know about a particular suspect, for example, they would not turn in any reports for weeks, an investigation by the district attorney’s office showed.
In 1992, they were caught on video letting a jailhouse informant out of custody to meet his girlfriend, go shopping and dine in restaurants.
“We shouldn’t have done it. It was improper,” Mr. Chmil said. “We were reprimanded.”
The defendant in that murder case was David Ranta, a drug addict who was accused of killing a rabbi for his car. Mr. Ranta’s lawyer, Michael F. Baum, remembers running into Detectives Scarcella and Chmil at a bar shortly after the 1992 conviction and accusing them of knowingly jailing an innocent man.
“Chmil said to me, ‘If he didn’t do this, he did something else.’ ” Mr. Baum recalled.
Mr. Ranta was released in March after 23 years in prison after it was revealed that one of the two detectives — it was unclear who — told a witness whom to pick in the lineup.
“These two guys were out of control,” Mr. Baum said. “They were slapping around witnesses, bringing in junkies, paying for testimony with crack. This reminds me of cases from ‘Prince of the City,’ ” he said, referring to the 1981 film about corrupt New York City police officers.
The detectives investigated four of Mr. Baum’s clients, who all were subsequently cleared after trial.
Given a Script
Mr. Baum also represented a crack-cocaine addict named Jeffrey Campbell, who was arrested in late 1985 for robbing a shoe store on Fulton Street.
Mr. Campbell told Mr. Baum that earlier that summer, when he had been caught running from a murder scene, detectives had pressured him to testify against their suspect. “They told him that unless he testified, they were going to set him up on a phony charge,” Mr. Baum said.
Mr. Baum thought Mr. Campbell was paranoid. But then he interviewed the shoe salesman who was robbed. He heard a different version of the same story: the salesman said the police had coerced him into implicating Mr. Campbell, who had not committed the crime.
The salesman refused to testify, and the charge against Mr. Campbell was dropped.
But he was arrested again two months later in a different case. That time, records show, Mr. Campbell got out of jail by helping the police solve the drug-related homicide of a man named Michael Jennings in August 1985. The suspect in that case was Valance Cole, a Guyanese social club owner. Mr. Cole was convicted, but not before encountering Detective Chmil.
“I remember riding in the police car with Chmil and another guy and them talking about how they were closing all these cases so fast and other officers were not closing cases,” Mr. Cole, 67, said in a telephone interview from Buffalo, where he was being held in immigration custody.
In 1994, Mr. Campbell, dying of AIDS, suddenly recanted. He said prosecutors had promised to drop charges if he falsely blamed Mr. Cole for the murder. Detective Chmil, he said in a sworn statement, gave him a script.
“They gave me a piece of paper with what to say,” he wrote in large, childlike cursive. “The name of the detective who gave me the piece of paper I mentioned in my statement was pronounced as Camill.”
Detective Scarcella played no role in this investigation.
Mr. Campbell’s bid for freedom failed. A judge did not find the recantation credible and rejected Mr. Cole’s request for a new trial. Years later, another judge acknowledged that Mr. Cole was “probably innocent” but refused to overturn his conviction.
Mr. Chmil declined to discuss the case with The New York Times, but in a recent article in New York magazine, he denied wrongdoing in it. He compared Mr. Campbell to another witness used by Detective Scarcella in several other cases, Teresa Gomez. Ms. Gomez, a crack-cocaine addict who has since died, claimed to have seen several unrelated murders.
“Campbell was a lot like her,” Mr. Chmil told the magazine. “He was a street guy. I know I dealt with him a few times. Sometimes he’d tell you the truth, sometimes he wouldn’t.”
‘As Much a Red Flag’
Among the cases in which Detective Chmil was the lead detective while working with Detective Scarcella was one against a man named Nelson I. Cruz, who was 16 when he was convicted of the 1998 killing of a man in East New York, Brooklyn.
Mr. Cruz met Detective Chmil in the interrogation room after he was arrested; the detective had a confession ready.
“Chmil said, ‘Sign it and you go home,’ ” Mr. Cruz said in a telephone interview from Green Haven Correctional Facility.
Mr. Cruz refused. The detective crumpled the paper and threw it in the suspect’s face.
Detective Chmil claimed later that the defendant made a “spontaneous” confession on the way out of the police station after his lawyer had left. Mr. Cruz’s lawyer poked holes in Mr. Chmil’s account, and the judge did not allow the confession at trial, records show. A police officer told Detective Chmil that he saw someone else firing a gun at the scene; Mr. Cruz insists that he was not there.
Mr. Cruz, now 32, has been in prison since he was in 10th grade.
“I think Chmil is just as much a red flag,” Mr. Cruz’s lawyer, Rebecca E. Freedman, said. “What Scarcella was doing, Chmil was doing.”
The Legal Aid Society, which represents 20 of the people whose cases were reopened by the Brooklyn district attorney’s office, is concerned that the prosecutors’ review is too narrow, because it is limited to cases in which Detective Scarcella testified in court.
“There are literally hundreds of cases that could be affected,” said Steven Banks, attorney-in-chief of the Legal Aid Society. “It stands to reason that these 50 are just the tip of the iceberg. There’s enough evidence that Scarcella may not have acted alone. A fair look would require a much broader inquiry.”
Mr. Hynes’s office said it had added about five cases to the review since it was announced in May. The office declined to comment on any cases or say whether consideration was ever given to reviewing Detective Chmil’s investigations.
Mr. Hynes lost his re-election bid in November. The incoming district attorney, Kenneth P. Thompson, suggested during the race that he would be open to widening the scope of the review.
Mr. Chmil said the detectives had received harsh treatment from the news media. In several interviews this year, he and Mr. Scarcella were emphatic: They said they never framed anyone, manufactured confessions or coerced false testimony.
Mr. Chmil said they might have raised their voices, banged tables and used deception when appropriate, but had never used force against suspects.
Drug addicts and recanting witnesses, he said, were a fact of life in the 1980s and ’90s. “We weren’t a bunch of cowboys out there,” he said. “The bottom line is, you got to go with what you got.”
Mr. Chmil said there were 10 to 12 civilian review board complaints against him during his 33 years on the police force and at least one suit charging false arrest. Mr. Chmil left the department in 2001 and later joined two police departments in Virginia, where he is now retired.
“We had an unbelievable reputation for getting things done,” Mr. Chmil said. “I’m not saying we didn’t make mistakes.”
Duh!
Police Officers in Texas Need Time to Cook Up Their Stories About Police Shootings – Only in Texas
Dallas PD changes policy to enable police coverups after shootings
(Written by Grits for Breakfast in Texas – NOT by James W. Burdick)
Regular Grits readers will recall the recent episode in Dallas where a police officer shot a mentally ill suspect, claiming he feared for his life. His partner said in a written report that the man had rushed at them with a raised knife when, in fact, a neighbor’s surveillance video showed the fellow had first backed away then stood calmly with his hands to his side. DPD fired the officer and suspended his partner for 15 days.Now, though, rather than beef up penalties for officers caught testilying, Dallas Police Chief David Brown has succumbed to pressure from the police union and changed the rules so that officers can no longer be questioned about shooting incidents until 72 hours after they happen. The Dallas News story (“Dallas Police Chief David Brown quietly changes shooting investigation policy,” Nov. 27) announcing the new policy opened thusly:
Any Dallas officer involved in a police shooting — whether the officer fired a weapon or witnessed the gunfire — will now have the right to remain silent for 72 hours under a new department policy.
And even before they give a statement about the shooting, the officers can watch any available video before they give a statement. Previously an officer who witnessed a shooting typically would have been required to give a statement to police investigators within hours of the event. And the officer who fired, while not required to speak right away, typically did so. The new policy now requires the firing officer to wait at least three days before giving a complete statement to investigators.Chief David Brown quietly made major policy change less than a month after surveillance video went public in October that showed an officer shooting a mentally ill man for no apparent reason — contrary to a witnessing officer’s account that led to a felony charge against the victim.”It is my belief that this decision will improve the investigation of our most critical incidents,” Brown said in an emailed statement.An attorney for the shooting victim, who survived, said the policy will give officers involved in unjustified shootings time to make excuses.But memory experts side with the chief.Alexis Artwohl, a nationally known behavior consultant for law enforcement agencies, said studies show officers need rest before they can accurately recount traumatic events.
One wonders, if “memory experts” say this is the better way to go, why isn’t the same courtesy extended to suspects so their memory can be similarly improved? I’m sure suspects in criminal cases would be less likely to give contradictory statements if they could wait three days and review all the evidence accumulated against them with their lawyers before talking to police. What’s good for the goose …An attorney for Bobby Bennett, the man shot in the October incident, correctly identified the real reason the police union pushed for the change and pointed out the obvious hypocrisy:
Don Tittle, one of Bennett’s attorneys, called the policy change “maddening.” Give police officers enough time, evidence and lawyers, and all their statements will sound alike and justify a shooting, he said.Plus, he said, any other witness to a crime is asked to talk to officers at the scene, he said.”If the goal is to seek the truth in an incident, then why would a witness to a police shooting be treated differently than a witness to any other incident?” he said. “No other witness is told, here, you have three days to get back to us. And, by the way, here is a copy of all the video of the incident so you can get your story straight.”
Grits doesn’t buy for a moment the argument that the policy stems from memory science – where is the science that says people remember an incident better three days later compared to soon after it happens? A few hours later? Perhaps. Three days later? No way. By that time, one’s memory begins the process of self-reinforcing a version of events that may or may not conform to what actually happened. (For more on the brain science behind that process, see here, here, and here.)The “memory expert” quoted by the Dallas News is not a memory expert at all but a consultant who co-authored a book on how police officers can “survive” the emotional and legal aftermath of deadly shootings. Looking through her website and linked publications, one is struck by the one-side analysis. Yes, memory is less certain than was once thought – which is why we’ve witnessed so many DNA exonerations based on faulty eyewitness identification – but she never takes the next step to apply that observation to suspects, witnesses, or for that matter victims of police shootings. Her schtick is all about protecting the cop from negative consequences after a shooting occurs, right or wrong.In a blog post on Friday, Dallas attorney Robert Guest made the obvious comparison to how police treat suspects: “This traumatic-event-impairs-memory theory could impact other cases as well. Take family violence cases, if we can’t trust officers memory of traumatic events how we can trust those who got in a fight with their spouse?” Guest sums up what’s going on in the Bennett episode from a non-cop’s perspective: “If you work in criminal justice long enough you see situations in which rules are broken often. Defendants break rules and face the unbridled wrath of the criminal justice system (which seeks to take their money, time, and sometimes freedom). But what happens when the Government breaks rules? More often than not, the government changes the rules so that they don’t get caught again.” That’s precisely what Chief Brown did here.This shooting and the coverup that followed by the shooter’s partner was an embarrassment for the Dallas Police Department, but not nearly as embarrassing as this shameless change in departmental policy. Just pathetic
The Sad, Sad Truth About Indigent Defense – An Assembly Line That Results in Massive Miscarriages of Justice
Lawyers, Not Another Commission, For The Poor
Stephen B. Bright, Sherrilyn Ifill and Virginia SLoan
The National Law Journal
Public officials respond to intractable problems in a couple of ways. One is to tackle them head on, learning from experience and bringing about what progress is possible. Another is to create a commission that studies them for a couple of years, replicates much of what has already been done and issues a report that is soon forgotten.
Providing lawyers for poor people accused of crimes has been an intractable problem ever since the U.S. Supreme Court held 50 years ago in Gideon v . Wainwright that to ensure fair trials and equal justice the Constitution requires states to provide lawyers to those unable to afford one on their own. U.S. Attorney General Eric Holder Jr. has said that the representation of the poor is in a “state of crisis” and “unworthy” of our legal system.
Since the 50th anniversary of the Gideon decision in March, some well-meaning individuals, such as former Alabama Supreme Court Justice Sue Bell Cobb, and organizations such as the Sixth Amendment Center, have recommended the creation of a bipartisan commission to study the deficiencies in providing lawyers to indigent criminal defendants and propose solutions. The proponents of a commission say the U.S. Department of Justice has asked them to further develop their proposal.
We don’t doubt the sincerity of the advocates of a study commission. However, now is a time for action, not another study by a commission.
The scandalous quality of lawyers for the poor has been studied and documented repeatedly by national, state and local commissions, as well as the media, scholars and organizations. For example, 10 years ago the American Bar Association produced a comprehensive study based on the testimony of expert witnesses from across the country. The National Association of Criminal Defense Lawyers is completing a three-part study of the role private attorneys should play in providing indigent defense. The Constitution Project’s National Right to Counsel Committee offered its extensive recommendations in 2009 and is in the process of updating and expanding them.
PLENTY OF REPORTS
Reports, studies and articles have repeatedly documented a long-standing crisis. People are spending months in jail after arrest without seeing a lawyer. They are being processed through the courts in assembly-line manner with only brief conversations with lawyers, minutes before they plead guilty and are sentenced. Innocent people are convicted of crimes they did not commit. Children without lawyers are committed to institutions. Violations of the right to a lawyer are occurring every day in courtrooms all over the nation.
The reports and studies have also identified over and over again the causes for these problems — the primary one being the unwillingness of state and local governments to carry out their constitutional obligation to pay to provide lawyers for people they are trying to convict, fine, imprison and execute.
There is simply no longer any debate about the problem, the causes or the solutions. Another commission to study again what we already know is no more needed than a commission to study whether the use of tobacco products has an impact on health. It is time to stop studying the problems and to do something about them.
Over the years, professional associations, courts, public defender commissions and organizations have issued detailed standards, guidelines and “best practices” on every aspect of providing lawyers for poor people accused of crimes. Nothing will be achieved by a new commission recompiling, reorganizing and reissuing yet more standards and guidelines. What is needed today is to put the existing guidelines into practice, state by state, county by county and municipality by municipality.
A small number of adequately funded, independent public defender programs have demonstrated for years that implementing these standards results in high-quality legal representation that ensures fairness and reliable verdicts. Progress is being made in following their example in some places, despite inadequate funding and resistance to change.
Individuals and organizations in communities all over the country are drawing attention to the deficiencies, calling for reform and filing lawsuits to improve representation. New public defender offices have been created in Birmingham, Houston and other places. Judges and legislators have recognized the inadequacy of representation in states like Idaho and Michigan and are making changes.
ADDITIONAL EFFORTS
Lawsuits challenging excessive workloads for public defenders have been successful in Florida, Missouri and other states. One private organization, Gideon’s Promise, is providing first-rate training to lawyers going to public defender offices in the South that do not have training programs.
Holder should spend whatever resources the federal government is willing to commit to the right to a lawyer in support of these and similar efforts in the places where the need is the greatest. He should not create yet another commission that will make the same findings and recommendations that have been made so many times before.
We already know what needs to be done. We only require the political will to do it.
Stephen B. Bright is president and senior counsel of the Southern Center for Human Rights and teaches at Yale Law School and the University of Georgia School of Law. Sherrilyn Ifill is president and director-counsel of the NAACP Legal Defense and Educational Fund Inc. Virginia Sloan is president of The Constitution Project, a bipartisan legal watchdog group based in Washington.
Time to Change Drug Laws & Sentencing
Time to Change Drug Laws & Sentencing: Even though I have represented many accused drug dealers, I would give up all that business in a heartbeat if the government would make sentences equal the circumstances and the individuals. We have more people in prison than any other country in the world, and mostly because of crazy drug sentencing laws that “tough-on’crime” politicians relentlessly pushed to get public notoriety. It’s time to come to our senses. (And thanks to the Atlantic Monthly for a great article.)
The Power Of The Presidential Pardon
By Ron Fournier
A first-time offender caught selling pot, Weldon Angelos is serving a 55-year sentence under federal “mandatory minimum” laws. (Courtesy of weldonangelos.org)
President Obama on Wednesday will pardon a Thanksgiving turkey. Which makes this a good time to ask why a liberal constitutional lawyer who bemoans the bloated prison system and proclaims that “life is all about second chances” is-on the matter of clemency-one of the stingiest presidents in U.S. history?
Put another way: If a turkey deserves a second chance, why not Weldon Angelos?
Angelos was sentenced in 2004 to 55 years’ imprisonment for possessing a firearm in connection with selling small amounts of marijuana. He didn’t brandish or use a weapon, nor did he hurt or threaten to injure anybody. And yet the father of young children and aspiring music producer was given an effective life sentence because of a draconian mandatory-minimum federal law.
Even the judge on his case, Paul G. Cassell, found the sentence “cruel and irrational.” While urging Obama to reduce Angelos’ punishment, the Republican-appointed judge wrote, “While I must impose the unjust sentence, our system of separated powers provides a means of redress.” More than almost any president, Obama has failed to exercise that “means of redress” enscribed in the Constitution, the presidential clemency. But that may be changing. The White House is considering a broad range of clemency reforms.
Why Is This An Issue?
According to an analysis of Department of Justice data published by Reason.com, only three presidents made less use of the clemency power than did Obama during their first terms: George Washington, who had little cause to grant clemency in the nation’s first days; William Henry Harrison, who died of pneumonia a month after taking office; and James Garfield, who was shot four months into his presidency.
After granting 17 pardons this year, according to the DOJ website, the total for Obama’s presidency stands at 39 pardons (which clear people’s records, typically after they’ve completed their sentences) and just one commutation (which shortens a prisoner’s sentence).
As you can see from the graphic, Obama still ranks at the bottom historically, and his record extends a trend of presidential intolerance that dates to the tough-on-crime demagoguery of Presidents Reagan or Nixon-both of whom, ironically, were more generous with clemency powers than Obama.
“In Federalist 74, Hamilton made clear why the president had the power to pardon: Mercy, particularly when sentences are too harsh. It’s the way of humans, we overreact sometimes,” said Mark Osler, a University of St. Thomas (Minnesota) professor and former federal prosecutor in Detroit who wrote Angelos’ broadly supported petition. (Disclosure: Osler is a friend of mine.)
The issue is freighted with politics. In 1988, Republicans attacked Democratic presidential nominee Michael Dukakis for a Massachusetts furlough program that allowed convicted murderer Willie Horton to escape and commit more crimes. Two decades later, rivals skewered GOP presidential candidate and former Arkansas Govenor Mike Huckabee for his role in the release of convicted rapist Wayne Dumond, who raped and murdered another woman after leaving prison.
Obama has a particular political problem. In early 2001, Bill Clinton granted a spate of unseemly pardons and commutations in the final days of his presidency. The most controversial act of clemency went to financier Marc Rich on the recommendation of Eric Holder, who is now Obama’s attorney general.
Responding to (and stoking) voters’ fears, a generation of politicians have engaged in what political columnist Carl M. Cannon called “an orgy of incarceration” that included mandatory minimum sentences for drug crimes. In 1992, Bill Clinton campaigned for president promising to “put more police on the street and more criminals behind bars.” Incumbent George H.W. Bush pledged to double spending on federal prison construction.
In 2010, Congress finally addressed the crack-powder cocaine disparity, but the law wasn’t made retroactive. “So you’ve got all these people serving incredibly long sentences that, under the new law, they’d be out of prison by now,” Osler said.
That is not the only blunderbuss statute carrying harsh mandatory sentences. Angelos, at age 24 and with no criminal history as an adult, was caught selling $350 worth of marijuana on three occasions while in possession of a firearm. Though it was not used in the crime, the weapon triggered extreme sentencing requirements. Had he been charged in a state court, for example, Angelos would have been paroled years ago, the petition says. His sentence is longer than the punishment imposed on aircraft hijackers, kidnappers, child rapists, and second-degree murderers.
What Should Be Done?
After granting Angelos’ petition, Obama should grant clemency to inmates sentenced under the old crack-powder guidelines. He also should eliminate the Department of Justice’s sole authority to review clemency petitions and make recommendations to the president. It’s an unacceptable conflict of interest to have DOJ prosecutors reviewing the petitions of people jailed by the DOJ.
A smart suggestion from Osler: Follow the example of President Ford, who created an independent panel to review clemency petitions from the Vietnam War. Via the Presidential Clemency Board, President Ford granted 1,731 pardons to civilians (those who evaded the draft) and 11,872 to military personnel (who went AWOL). The board inoculated Ford from political fallout. “No one remembers Ford doing this,” Osler said, “and draft evaders weren’t exactly popular back then, just like drug sellers aren’t now.”
James Burdickistration sources tell me that such reforms are being considered by the White House, and that Obama is sympathetic to the reformers’ pitch. As a state legislator in 2001, he declared, “We can’t continue to incarcerate ourselves out of the drug crisis.” As a presidential candidate six years later, Obama lamented that “we now have 2 million people who are locked up … by far the largest prison population per capita of any place on earth.” According to Jacob Sullum’s story for Reason.com, the president also has said he suspects a “racial component” behind drug arrest and conviction rates, adding that disparate penalties are “not black or white issues” but “an American issue” since “our basic precept is equality under the law.” In addition to signing the the 2010 crack-powder legislation, Obama has directed Holder to take James Burdickistrative steps to cut mandatory minimum sentences.
Broader clemency reforms are not imminent. Spokesmen at the White House and Department of Justice refused interviews for this column. Osler has had no response on his petition for Angelos, supported by a group of 145 individuals including former U.S. attorneys general, retired U.S. Circuit Court judges, retired U.S. District Court judges, a former FBI director, former U.S. attorneys, and other former high-ranking DOJ officials.
“One of the things about a clemency petition is that it’s a black box,” Osler told me. “Once you submit a petition, you don’t find anything out. There’s no process.” And, too often, there’s no justice.
Amanda Knox Prosecutors: the Worst in the World
Kercher murder trial: Call to jail Amanda Knox for 30 years
Amanda Knox has not returned to Italy for the retrial
Italian prosecutors have asked for a 30-year prison sentence for former US student Amanda Knox in a retrial over the murder of her British housemate.
Prosecutors also requested that Ms Knox’s ex-boyfriend Raffaele Sollecito receive 26 years for the 2007 killing. Mr Sollecito and Ms Knox were convicted in 2009 of murdering Meredith Kercher but acquitted on appeal in 2011. In March, Italy’s highest court overturned the acquittals and ordered a new trial. Mr Sollecito has attended the trial in Florence but Ms Knox returned to the US after the appeal and is being tried in absentia. Both have always protested their innocence. In more than 10 hours of closing arguments, prosecutor Alessandro Crini said DNA evidence – which is highly disputed in the case – showed Mr Sollecito and Ms Knox had stabbed Ms Kercher while another man, Rudy Guede, sexually assaulted her.
Raffaele Sollecito described the allegations against him as absurd
Guede, from Ivory Coast, was convicted in a separate trial and sentenced to 16 years for the killing. Mr Crini criticised the previous appeals court ruling, saying it had made the mistake of “isolating” individual pieces of evidence without looking at the full picture. The supreme court had “wiped out” that ruling, he said. Meredith Kercher, from Coulsdon, south London, was found dead in a flat she shared in Perugia with Ms Knox, a fellow exchange student. Prosecutors said Miss Kercher, who had been repeatedly stabbed, died in a sex game that went wrong. She was 21. Ms Knox insists that on the night of Miss Kercher’s death she was at Mr Sollecito’s flat, smoking marijuana and watching a film. The retrial is expected to reach a verdict in January.
Sentenced to a Slow Death
Finally politicians are looking at the absurdity of life sentences for non-violent crimes, if only because of the financial burden it puts on the economy. Well, right things happen sometimes for the wrong reasons and, as a lawyer, I am very pleased that we may be seeing the end to these idiotic life sentences.
If this were happening in any other country, Americans would be aghast. A sentence of life in prison, without the possibility of parole, for trying to sell $10 of marijuana to an undercover officer? For sharing LSD at a Grateful Dead concert? For siphoning gas from a truck? The punishment is so extreme, so irrational, so wildly disproportionate to the crime that it defies explanation.
And yet this is happening every day in federal and state courts across the United States. Judges, bound by mandatory sentencing laws that they openly denounce, are sending people away for the rest of their lives for committing nonviolent drug and property crimes. In nearly 20 percent of cases, it was the person’s first offense.
As of 2012, there were 3,278 prisoners serving sentences of life without parole for such crimes, according to an extensive and astonishing report issued Wednesday by the American Civil Liberties Union. And that number is conservative. It doesn’t include inmates serving sentences of, say, 350 years for a series of nonviolent drug sales. Nor does it include those in prison for crimes legally classified as “violent” even though they did not involve actual violence, like failing to report to a halfway house or trying to steal an unoccupied car.
The report relies on data from the federal prison system and nine states. Four out of five prisoners were sentenced for drug crimes like possessing a crack pipe or acting as a go-between in a street drug sale. Most of the rest were sentenced for property crimes like trying to cash a stolen check or shoplifting. In more than 83 percent of the cases, the judge had no choice: federal or state law mandated a sentence of life without parole, usually under a mandatory-minimum or habitual offender statute.
Over the past four decades, those laws have helped push the American prison population to more than two million people, and to the highest incarceration rate in the world. As in the rest of the penal system, the racial disparity is vast: in the federal courts, blacks are 20 times more likely than whites to be sentenced to life without parole for nonviolent crimes.
The report estimates that the cost of imprisoning just these 3,278 people for life instead of a more proportionate length of time is $1.78 billion.
It is difficult to find anyone who defends such sentencing. Even Burl Cain, the longtime warden of the Louisiana State Penitentiary, which holds the most nonviolent lifers in the country, calls these sentences “ridiculous.” “Everybody forgets what corrections means. It means to correct deviant behavior,” Mr. Cain told the A.C.L.U. “If this person can go back and be a productive citizen and not commit crimes again,” he asked, why spend the money to keep him in prison? “I need to keep predators in these big old prisons, not dying old men.”
Several states are reforming sentencing laws to curb the mass incarceration binge. And Congress is considering at least two bipartisan bills that would partly restore to judges the power to issue appropriate sentences, unbound by mandatory minimums. These are positive steps, but they do not go far enough. As the report recommends, federal and state legislators should ban sentences of life without parole for nonviolent crimes, both for those already serving these sentences and in future cases. President Obama and state governors should also use executive clemency to commute existing sentences.
Just one-fifth of all countries allow a sentence of life without parole, and most of those reserve it for murder or repeated violent crimes. If the United States is to call itself a civilized nation, it must end this cruel and ineffective practice.
Forensic Expert Witness Testifies in the Amanda Knox Murder Trial
More On The Second Amanda Knox Murder Trial In Italy – There’s No Such Thing As Double Jeopardy In Italy . . . But This Case Proves There Should Be.
A forensic expert witness will play a critical role in the re-opened case against Amanda Knox, shedding light on the evidence allegedly linking the young American to the 2007 murder of her former roommate, British student Meredith Kercher. Kercher was found in the Italian apartment she shared with Knox having died from 47 stab wounds, including a deep gash in her neck. Rudy Guede, an Ivorian man whose bloody fingerprints were found at the crime scene, was sentenced to 16 years in prison for Kercher’s murder. Yet, prosecutors allege that Guede was just an accomplice to the murder, and that Knox and her then-boyfriend Raffaele Sollecito killed Kercher in what had begun as an erotic game (Guede admitted to having sexual relations with Kercher on the night of her death). Knox and Sollecito were acquitted of their alleged involvement in Kercher’s death. However, as Italy does not proscribe to the American rule prohibiting “Double Jeopardy” – the Fifth Amendment of the U.S. Constitution
inherently prohibits trying a defendant following a legitimate acquittal verdict – the Italian Supreme Court was free to vacate the appeal. Italy’s highest court has remanded the case to reexamine previously untested DNA evidence found on the knife prosecutors allege is the murder weapon.
The knife in question, discovered in a kitchen knife drawer at Sollecito’s apartment, was introduced as the murder weapon because it matched Kercher’s wounds. In the initial 2009 trial against Knox, “prosecutors claimed the knife contained small traces of Kercher’s DNA on the blade, while Knox’s DNA was reportedly found on the handle.” Defense attorneys for Knox and Sollecito argued that “the DNA samples were too small to be trusted and were also cross-contaminated during police investigation.” Following a report from two forensic experts who concluded that “the correct international protocol for tests on small samples, called low copy number DNA analysis, had not been followed,” the Italian appeals court confirmed that the DNA analysis on the two samples was inconclusive and inadmissible.
In Knox’s third trial, forensic expert witnesses Andrea Berti found no trace of Kercer’s DNA on the suspected knife, even after using high-performance techniques and testing the knife twice to verify the accuracy of the result. This revelation “casts doubt on one of the key pieces of evidence that was originally used to convict Knox and Raffaele Sollecito of the killing.” Knox’s defense attorney Luca Maori stated that the expert witness testimony clearly indicates that the knife was solely used by Knox for cooking. Knox maintains that she stayed with Sollecito on the night of Kercher’s murder and had no involvement in her untimely death. Maori pointed out that “[i]t is absurd to use it for a murder and put it back in the drawer.” Another lawyer for Knox, Luciano Ghirga, stated that the expert witness testimony “‘pushes even further away the possibility that this was the murder weapon.'” Greg Hampikian, a forensic expert witness who was part of Knox’s defense team commented that despite the prosecution’s claim that Knox bleached the alleged murder weapon, “the knife recovered from Raffaele’s apartment not only did not have traces of human blood, but it had not been cleaned in the way the prosecution said.” Hampikian further notes that the court-appointed forensic experts only found potato starch on the knife blade. “It was a typical kitchen knife…It wasn’t well cleaned and it wasn’t used as a murder weapon.”
Related: Forensic expert discusses new investigatory method
The Supreme Court, in remanding the trial against Knox and Sollecito, “asked that the new trial focus on the motives of the murder and establishing if the defendants were present at the crime scene at the time of the murder.” In addition to hearing testimony from a forensic expert witness, the court will also hear from Luciano Aviello, a man who claims that his brother killed Kercher who is currently on the run. The court is expected to issue a verdict in January, but even if Knox is found guilty, she may not be forced to serve time in an Italian prison “the U.S. government could find legal arguments, including the previous acquittal verdict, to oppose extradition…[and] Knox could attempt to block the extradition in American courts.”
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