Defensive Maneuvers

potential nonprofit legislation to be introduced in Congress

2010-06-20T02:46:00.000-04:00

Here are two interesting articles from the Chronicle of Philanthropy about potential legislation in Congress to work on federal policy related to 501c3s and to increase data collection about the sector. It would be called the Nonprofit Sector and Community Solutions Act.

http://philanthropy.com/blogPost/Nonprofit-Leaders-Praise-New/24832/

http://philanthropy.com/article/Congresswoman-Plans-to/65945/

taking photographs = obstruction ?

2008-04-29T09:17:00.001-04:00

Typos notwithstanding, this is a pretty interesting video from Glass Bead Collective, documenting a Critical Mass Ride in March 2007 where the police arresting bicyclists and then the people who were photographing them arresting the bicyclists.

I recently helped write a motion for someone who got arrested and arraigned on the charges of Obstruction of Government Administration in the Second Degree (P.L. § 195.05) and then resisting arrest (P.L. § 205.30). What did the facts allege? That when the police were doing an "investigative sweep" in a building, he stood up and then didn't sit back down. He also asked what was going on, objected to being told to sit down and asked why they wanted him to sit down, specifically "WHAT’S GOING ON? WHY DON’T TELL US TO SIT DOWN." When the police went to arrest him for that conduct, they allege he resisted arrest by flailing his arms and body and tucking his arms underneath him. Mind you, that's not -his- story (I can't and won't say anything about that because of confidentiality), that's just what the complaint alleges. And unlike the people in this video, his charges weren't dismissed or ACD'ed (Adjourned in Contemplation of Dismissal). At least not yet - that's why we wrote a motion.

When it often takes over 24 hours go to through arraignment, it really makes you think twice about doing anything except keeping quiet and complying when it comes to -any- interaction with the police. Even if you're lucky enough to eventually be vindicated (Let me note that an ACD for this kind of offense usually isn't sealed until after 6 months, by the way) you still have to go through a pretty horrible process. In this case, the people affected are trying to use the video to make the NYPD accountable by going through the Citizen Complaint Review Board, but apparently are having no luck. By the way, there are some pretty interesting stories on the Case Profiles Page of CCRB.

(Found on Boing Boing.)

Fingerprinting of all visitors to US upon entry and exit

2008-04-28T14:43:00.001-04:00

From the Washington Post:
"The U.S. government today will order commercial airlines and cruise lines to prepare to collect digital fingerprints of all foreigners before they depart the country under a security initiative that the industry has condemned as costly and burdensome."
. . .
"Launched after the Sept. 11, 2001, terrorist attacks, US-VISIT is intended to automate the processing of visitors entering and exiting the country, using fingerprints and digital photographs to help find criminals, potential terrorists and people who overstay visas and join the nation's illegal immigrant population."

NYPD v Stormtroopers

2008-04-28T11:47:00.001-04:00

Geek Treat:
Gothamist linked to these great photos of the NYPD with a stormtrooper outside ComicCon in NYC last weekend.

Crawford Right to Cross Examine - does it apply to murder victims?

2008-04-27T19:07:00.001-04:00

Check out this Article in the Washington Post describing the issue presented in Giles v. California, which was discussed in the Supreme Court on April 22nd. Here is the full oral argument transcript (in pdf).
The basic question is this: Is the prosecution allowed to put in statements made by murder victims before they died or is that a violation of the defendant's 6th amendment rights since they are unable to cross-examine the dead "speaker"?

Under the Crawford case, decided in 2004, a defendant has the Sixth Amendment right to confront witnesses when their statements are used against them. But here, the witness is dead, so obviously cannot be confronted. The Crawford case originally contained an exception to the rule when the defendant killed the witness for the purpose of keeping them from testifying.

Here - the woman's statements were accusing the defendant of having "viciously attacked. . . and having threatened her at knifepoint and having threatened to kill her." They were made to the police after a prior assault, but since Giles was never arrested or charged with that assault - the prior Crawford exception doesn't seem to apply.

In argument, Ginsburg makes some interesting points about how the defendant, claiming self-defense, was able to make statements about the victim so her statements might be considered as rebuttal to those statements. But as Scalia pointedly asks, "Is there a rebuttal exception to the hearsay rule?"

And as a silly aside, Justice Breyer makes a great allusion to how witches were tried by dunking under water... and I just -have- to make the Monty Python reference ... "Very small rocks"

Lower Manhattan surveillance - from Wired Security

2008-04-24T12:38:00.003-04:00

Check out this article about security and surveillance in the financial district of manhattan from Wired Security.

"But the financial district is a special case, and in June 2006 the NYPD announced a three-year, $106 million plan called the Lower Manhattan Security Initiative. Its centerpiece is an array of 3,000 cameras that will turn the area into a 1.7-square-mile, open-air Panopticon."

"New York's cameras will do more than identify terrorists after they've struck. The new cameras will be fully networked, with video-intelligence algorithms that aim to spot potential attackers before they perpetrate their crimes."

Feds to collect DNA from every person arrested

2008-04-17T12:53:00.001-04:00

The Washington Post (registration required) reports that federal authorities now plan to collect DNA samples from anyone arrested by a federal enforcement agency. This is a massive expansion from the current policy - which collects DNA only from convicted felons.

"The initiative, to be published as a proposed rule in the Federal Register in coming days, reflects a congressional directive that DNA from arrestees be collected to help catch a range of domestic criminals. But it also requires, for the first time, the collection of DNA samples from people other than U.S. citizens and legal permanent residents who are detained by U.S. authorities."

"Reuters - "The initiative, to be made public within days, will add genetic information on more than 1 million people per year to a DNA database run by the Federal Bureau of Investigation"
AP News Story - "The proposed rule is being published in the Federal Register. That will be followed by a 30-day comment period."

Let's stop and think for a moment about what this means. Any time after someone is arrested, this DNA sample is taken. Not after arraignment, not after indictment, not after conviction, not after a probable cause hearing, not after the person has talked to their lawyer or seen a judge. This means every single person ever arrested by the feds will have their DNA taken and stored. More than 1 million people per year. Wow.

So here's the part where we can do something:
How can I use the Federal Register to affect Federal rulemaking?
"Any person or organization may comment on it directly, either in writing, or orally at a hearing. Many agencies also accept comments online or via e-mail. The comment period varies, but it usually is 30, 60, or 90 days. For each notice, the Federal Register gives detailed instructions on how, when, and where a viewpoint may be expressed. In addition, agencies must list the name and telephone number of a person to contact for further information."

So, once this rule gets published in the Federal Register, I'll post the instructions they provide on how to submit comments on the rule.

bill proposing federal funds for public school surveillance

2008-04-16T00:24:00.003-04:00

According to this article from Wired Threat Level, federal legislators will be be holding a hearing this thursday on a proposal to allow public schools to use federal money for surveillance.

The House website says:
"Thursday, 04/17/2008, 10:00 AM - 2141 Rayburn House Office Building, Subcommittee on Crime, Terrorism, and Homeland Security: H.R. 2352, the “School Safety Enhancements Act of 2007”

Here's info about the bill on govtrack.us, and on washingtonwatch.com and most importantly here's the text of the bill on thomas.loc.gov: in pertinent part:

"Section 2701 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3797a) is amended--

(1) in subsection (b)--

`surveillance equipment

Also check out this press release from the sponsor of the bill, Steve Rothman (D-NJ) from when the bill was introduced last year. You may notice he mentions the addition of the "tip line" to report students, but doesn't mention surveillance.

Overheard in NY: photography in the subway

2008-04-14T22:40:00.001-04:00

"What's it called when the Government Does it?"
Cop: You can't take pictures in the subway.
Cameraman's friend: Why not?
Cop: It's against the law.
Cameraman's friend: Why is that?
Cop: Ever heard of a little thing called terrorism?

--High Street Brooklyn Bridge A/C Station
http://www.overheardinnewyork.com/archives/014302.html

This Overheard in NYC from today made me stop and wonder. Wait. -Is- it illegal to take photos on the subway? As far as I can tell, no!

There WAS a proposed regulation back in 2005,
See USA Today, Transit Agency Wants to ban subway photos, June 6, 2004
And apparently, the police did some preemptive enforcement:
NYTimes: Police Waste No Time in Disallowing Subway Photos, May 22, 2004

BUT, the proposed regulation got shot down!
NPPA: Proposed NYC Subway Photo Ban is Dead, May 23, 2005
“In the wake of the public comments period, after consulting with the New York Police Department, which had originally requested the rule change, MTA NYC Transit will not go forward with the institution of a photo ban,” Transit Authority spokesperson Charles Seaton told The New York Daily News on May 22. In the same story The News also quotes NYPD deputy commissioner Paul Browne who says, “We are not pressing for a ban. Our officers will continue to investigate, and intercede if necessary, if the activity – photo-related or not – is suspicious.”

But forget media, let's go straight to the source: The MTA Rules of Conduct

Section 1050.9, Restricted Areas or Activities
Photography, filming or video recording in any facility or conveyance is permitted except that ancillary equipment such as lights, reflectors or tripods may not be used. Members of the press holding valid identification issued by the New York City Police Department are hereby authorized to use necessary ancillary equipment. All photographic activity must be conducted in accordance with the provisions of this Part.

So, either someone is getting creative with their Overheards (not the first time, of course), or a police officer is getting creative with their law (also not the first time.)

recidivist subway grinder

2008-04-14T14:48:00.001-04:00

Here's a story about a guy who keeps getting busted for grinding up against women in the subways. (Gothamist , Daily News) This was his 29th arrest for a sexual offense. "He's a recidivist transit grinder," said Assistant Manhattan District Attorney Danielle Contillo.

I've seen some of these incredibly long rap sheets for subway grinders while at Legal Aid. Guys busted for the same conduct many times over the course of years. It starts to raise questions about addiction, deterrence and rehabilitation. Not only are they continuing to do it over and over again, but they are getting caught over and over again.

Is it a matter of the system not doing enough to deter them, or is it a matter of the system doing nothing to address the root cause of their conduct? Clearly - the threat of getting busted, processed and jailed isn't enough to stop this guy.

domestic spying via satellite

2008-04-13T19:35:00.004-04:00

Check out this article from the Washington Post (via Slashdot). The upshot: Homeland Security has plans to use overhead sensor imaging (read: satellite surveillance) for domestic purposes soon.

Chertoff said, "Sophisticated overhead sensor data will be used for law enforcement once privacy and civil rights concerns are resolved." Wait. When -whose- concerns are resolved? Mine? yours? Or someone writing an internal memo for the DOJ? How transparent will this process be?

Chertoff already commented to reps in congress that, "There is no basis to suggest that this process is in any way insufficient to protect the privacy and civil liberties of Americans"

My point is this: our Fourth Amendment rights are, to some extent, circumscribed by our expectations about our privacy. (Katz v. United States and Kyllo) (in layman's terms: if you're trying to suppress evidence from a search you're arguing was unconstitutional, you have to show that you had both a subjective and legitimate expectation of privacy.)

So - it seems to me that if we, as citizens, publicly accept this type of encroachment on our privacy today; if we are aware of this concession and passively accept it.. we are giving up our rights for tomorrow. We are destroying our ability to claim that we had a reasonable expectation that the goverment wouldn't be spying on us via satellite.

(img credit mulley.net)

security cameras in san fran = walk down the block with me...

2008-04-07T23:25:00.002-04:00

Check out this interesting article from SFGate and Boing Boing. The SF mayor justifies spending over "$900,000" on surveillance cameras because "they make residents feel safer." Remind anyone of my last post? The difference between feeling secure and being secure?

"A fascinating study of security cameras in San Francisco has concluded that any effect on they have on crime is incredibly localized, and they only works on certain kinds of crime -- furthermore, the same number of crimes end up getting committed in the long run, just down the street from the cameras." (quoted from http://www.boingboing.net/2008/04/07/cctv-cameras-move-cr.html)

"The only positive deterrent effect was the reduction of larcenies within 100 feet of the cameras. No other crimes were affected - except for homicides, which had an interesting pattern.

Murders went down within 250 feet of the cameras, but the reduction was completely offset by an increase 250 to 500 feet away, suggesting people moved down the block before killing each other." (quoted from http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2008/03/21/MN27VNFET.DTL)

Feeling Secure vs. Being Secure

2008-04-03T06:20:00.001-04:00

An interesting commentary by Bruce Schneier at Wired about the thought processes that surround decision-making about security. Essentially, he argues that the greater the access to information, the more effective our decisionmaking can be related to security. He also draws the distinction between programs that help us "feel" secure rather than make us actually secure.

By analogy, this concept is applicable to legislative decisions related to privacy and the 4th amendment. The NYC subway bag search policy springs to mind. (see NYTimes article from 2005, and MacWade v. Kelly, 460 F.3d 260 (2d Cir. August 11, 2006).

On a personal note, I know the plaintiff in the MacWade case. He's the brother of a longtime friend. Brendan was in the WTC on 9/11 and I remember talking to his parents that morning when they still hadn't heard from him. He's my hero for being a plaintiff in that challenge to the constitutionality of the NYC bag searches.. even if the program was upheld under the "special needs" exception to the 4th amendment.

congestion plan involves surveillance

2008-04-02T16:56:00.001-04:00

The congestion plan for downtown Manhattan that passed the NYC City Council has privacy concerns.

"In order to ensure payment is made for entering the congestion pricing zone, the plan now before the State Legislature would install scores of surveillance cameras to read, record and catalogue the license plates of every vehicle entering Manhattan south of 60th Street. Through this video infrastructure, the city would compile a massive database of information regarding the movements of hundreds of thousands of New Yorkers."

Read more:
http://www.nyclu.org/node/1698
Contact your representatives:
http://ga1.org/campaign/congestionpricing/

civil suit settlement

2008-03-11T19:35:00.001-04:00

Civil suit settlement in roadside taser video case.
40k.

http://thelede.blogs.nytimes.com/2008/03/11/40000-for-man-tasered-on-youtube/index.html?hp

death penalty statistics in ny fed courts

2008-03-10T22:15:00.001-04:00

"federal prosecutors in New York State have asked juries to impose death sentences 19 times since 1988. In only one case did a jury rule for execution."

Aversion to Death Penalty, but No Lack of Cases, NYTimes.
http://www.nytimes.com/2008/03/10/nyregion/10penalty.html?ex=1362888000&en=6fa6d27500ab2309&ei=5124&partner=permalink&exprod=permalink

Excluding jurors on the basis of national-origin

2008-03-04T23:34:00.003-05:00

Interesting case in terms of whether or not excluding on the basis of national-origin is protected.

Judge William H. Pauley III’s decision did not find that the Bronx district attorney had specifically discriminated against West Indians. But if prosecutors cannot prove in a hearing that four Jamaicans and one Trinidadian were excluded for reasons other than national origin, Mr. Watson could receive a new trial.

Ban on Using Nationality to Exclude Jurors Is Upheld
A federal judge has affirmed that allowing American-born blacks on a Bronx jury but systematically excluding West Indians is discriminatory.

Blogged with Flock

evidence obtained through waterboarding

2008-02-17T16:33:00.001-05:00

Unforgivable Behavior, Inadmissible Evidence - Op Ed by Morris Davis @ NYTimes

"Once we condemn and stop all waterboarding, what do we do in cases where it was conducted? An obvious step is to prohibit the use of evidence derived by waterboarding in criminal proceedings against detainees. Regardless of whether the technique has produced actionable intelligence, it did not produce reliable evidence with a place in our justice system. Imagine the outrage if the Iranian government tied down an American, convinced him the choices were to cooperate or die, and then used his “confession” as evidence in a death-penalty trial."

Nebraska outlaws electric chair

2008-02-08T20:29:00.000-05:00

Nebraska Supreme Court Outlaws Electric Chair NYTimes

The Nebraska Supreme Court ruled that the use of the electric chair is cruel and unusual punishment under the Nebraska Constitution.

Bloomberg calls for DNA testing of all those arrested!

2008-01-17T14:43:00.000-05:00

In his speech today, Bloomberg advocated DNA testing of every person arrested. Not just those who are convicted, but ARRESTED.

Mayor Bloomberg's Speech 1/17/2008 as reported by the NY Times

"In the year ahead, we'll use the latest technology to continue turning up the heat on criminals – and, to more quickly exonerate the innocent. The single most powerful way to do both is through DNA analysis. Two years ago, we convinced the State Legislature to expand DNA testing to cover all convicted felons, and some misdemeanors. This year, we will urge Albany to follow the lead of the federal government – and a growing number of European countries – by taking DNA fingerprints from all those who are arrested. This would help keep the innocent out of jail and the guilty off our streets."

asking truants to see the serial #s on their Sidekicks

2008-01-15T14:03:00.000-05:00

Check out this new policy by NYPD to ask (non-criminal!) truant teenagers if they can check the serial #s on their Sidekicks. This is interesting in terms individualized suspicion - asking every single truant for the opportunity to check if their cellphone is stolen simply because there's a high rate of cellphone theft is a little hard to swallow, even if it is "voluntary"..

Police Are Tracking Thefts of Sidekick Phones: NYTimes blog article by Sewell Chan.

gotbaum and police power

2007-10-07T20:49:00.000-04:00

The Gotbaum death in Phoenix airport is somehow very troubling to me. On the one hand, there's sympathy for the police who have to deal with a situation where they don't know the facts... it's tough to look back in retrospect and imply that they should have known how troubled/suicidal she was. But on the other hand, this seems to be one more demonstration of a disturbing blunt force implementation of police order. I keep seeing all these videos of people getting taken down by police and it's beginning to leave a really bad taste in my mouth. And there's a continuing thread of what seems to be the terrible modern truth that if you're alone and in trouble in public, no one will help you.

I think back to a situation where a friend and I were playing tennis by the Triboro bridge. The courts abut a gated off area under the bridge controlled by the police. We hit a couple balls over the fence during our game, so we went up to the cop and asked him how we could get them back. We asked nicely, but the cop was apparently annoyed. (I'm guessing he gets asked that a lot.) He kept emphasizing that we couldn't go get them, but that they gather them regularly. So then when we asked when they gather them so we could know when to come back.. but he just emphasized again that we would be arrested for trespassing if we went ourselves. We said that of course we understood that, but if they're gathering them, should we come back to this same booth for them tomorrow? Then he seemed to refuse to answer and seemed very angry that we weren't just leaving. He wouldn't say what time, or whether tomorrow would work at all or if we needed to go somewhere else. We were both offended, but my friend's tone had started to get pissy ... I decided it was time for us to just walk away. A couple tennis balls was certainly not worth an altercation with a cop who clearly didn't want to help us. As we walked away, the cop stared at us all the way to the car, as if looking for some reason to give us trouble. It felt like paranoia at the time - but more and more I feel like police have such brute power at their disposal and I worry that all I need to do is give them an excuse to want to use it against me. And I'm a non-poor white girl - if I'm getting that sensation, I can only imagine how strong that sensation is for, say, a poor black man.

But back to the Gotbaum situation:
-----------------------
Arrested by police in the airport for disorderly conduct, Carol Gotbaum ended up dead in a holding cell after being left alone. From the reports, she was handcuffed behind her back and shackled to a bench by a 16 inch metal chain. She was found unconscious with her hands and shackle pressed against her neck - perhaps she was able to pull her arms forward and then was choked by the shackles.

CNN coverage
"police made no effort to calm her down"
"pulled her arm with extreme force"
"rushed in and grabbed her"
"what happened in the airport was so excessive"

More CNN coverage with the video from the airport

http://www.nytimes.com/2007/10/05/nyregion/05gotbaum.html
Video and extensive coverage from nytimes

http://www.nytimes.com/2007/10/06/nyregion/06gotbaum.html
"The police say they believe she had been drinking during the layover, and she protested in a way that they later characterized as “crying,” “hysterical” and “irrational.” She was dragged to a holding cell at the airport, hands cuffed behind her back, was shackled to a bench, and was left alone, yelling.

A few minutes later, when she grew silent, officers looked in the cell and found Ms. Gotbaum unconscious with the shackle stretched across her neck. Attempts by the police and medical workers to revive her were unsuccessful."

http://www.nytimes.com/2007/10/06/nyregion/06call.html

"During a later call, an operator put Mr. Gotbaum on hold and got on the phone with Lt. Rick Gehlbach. When the operator asked Lieutenant Gehlbach if he wanted to speak with Mr. Gotbaum, he responded: “I want somebody who’s professional to be talking to him. Not just blow it to him over the phone, because I don’t know how he’ll react.”

At one point between Mr. Gotbaum’s second and third calls, the transcripts indicate, the operator took a break to answer a question from a colleague about Chinese food they were ordering for dinner.

When Mr. Gotbaum called back — after two US Airways representatives at a call center in Winston-Salem, N.C., had contacted Phoenix on his behalf — the operator again put him on hold. Then the operator spoke with another sergeant, who said, “I need to get a phone number because we need to make, uh, we can’t tell him what’s going on right now.”"

Baze v Rees - Lethal Injection

2007-09-28T21:19:00.000-04:00

You've probably already heard about The Supreme Court's decision to consider lethal injection in Baze v. Rees. They are being asked to advise states how to determine whether particular chemical combinations cause too much pain and suffering to be allowed under the 8th Amendment's prohibition on cruel and unusual punishment.
If not, check out SCOTUSblog's writeup for an in depth description.
Also see, in particular, the petition, brief in opposition and reply.

The questions presented in the petition are as follows:
--------------------------------------
I. Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain?

II. Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used?

III. Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering?

IV. When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected?
--------------------------------------

As many predicted - SCOTUS's decision to hear this case has caused some states to take a hard look at their lethal injection policies and now SCOTUS has issued another stay in pending execution by lethal injection. See NYTimes article: Rare Supreme Court Stay Halts a Texas Execution

taser abuse against students

2007-09-23T23:03:00.000-04:00

Given all the discussion about the taser incident at the Kerry town hall in florida, [see, e.g. youtube and nytimes.] I decided to check up on the taser incident at UCLA last year. (see below for my original post on the topic).

It appears there have been some interesting developments. First of all - the student DID file a lawsuit.
(content in itals below taken from the incident's wikipedia entry)
"On January 17, 2007, Tabatabainejad filed a federal lawsuit alleging the campus officers used excessive force, and that they violated the Americans with Disabilities Act of 1990. He is seeking unspecified damages.^[29] According to the lawsuit, Tabatabainejad has bipolar disorder and informed the officers of his condition, but was treated in a way that constitutes discrimination under the ADA.^[30] His attorney, Paul Hoffman, has said that a February 2008 court date has been set.^[19]"

Also, both an independent and an internal investigation on the incident were done. The internal investigation is not available - but apparently found no policy violations. In constrast, the independent investigation did find policy violations and recommended that the campus tasering policy be changed. Read the full independent report (in pdf), released in August 2007.
Further, it's notable that the student was NOT prosecuted for resisting arrest.

--------------------------(original blog entry from 11/18/06)-----------------------
UCLA Student Tasered Repeatedly by Campus Police in Library

This is the cameraphone video.
If the embed doesn't work, go here.
When I first saw this (at neph_politics and other journals).. I was skeptical. It made my stomach turn and made me cry, but I suspected it was a youtube stunt. I thought, maybe the cops are faking it. So I did some research. See below. Read the articles and listen to the interviews. Some of the facts are still unclear, and some will likely continue to be debatable. But it is a compelling and disturbing story, any way you cut it.
Here are a few allegations/facts I'd like you to keep in mind.
- This was a routine ID check late at night at a school library
- The student is named Mostafa Tabatabainejad and alleged racial profiling when he, rather than the other white students around him, were asked for ID
- It's debatable whether he was getting up to leave or refusing to show his ID when the police grabbed him.. (but regardless)
- After going "limp" - he was tasered repeatedly while the police yelled at him to "stand up."
- He was tasered repeatedly AFTER being placed in handcuffs
- There are no allegations that the student was ever violent or threatened the officers. He went limp/prone and did not comply when they ordered him to stand up.
- Other students repeatedly asked the police for their badge IDs and asked them to stop
- One student who protested the tasering was told "Get back over there or you'll get tasered too." (see original video and Olberman report)

LA Times initial report
a-me-ucla17nov17,1,1813095.story">LA Times article on planned lawsuit
PDF report from UCPD
PDF taser use policy
UCLA newspaper report
Another UCLA newspaper report
Daily Kos writeup with links

Olberman on MSNBC (interview, narrative, video)
link: http://www.youtube.com/watch?v=4ZiIebst4fc

MSNBC interview of Mustafa's lawyer regarding potential federal civil rights lawsuit (link: http://www.youtube.com/watch?v=uhYCeO67fCs)

judicial interference

2007-09-15T11:17:00.000-04:00

While watching cases on trial over the past few months - Peter and I have both observed that the judges were much more "involved" than we expected them to be. For whatever reason - I hadn't expected judges to ask questions of witnesses - and it seems to vary - but it does not appear to be uncommon in 100/111 Center Street.

Last week, we watched a reckless assault case in Supreme Court. I noticed again that the judge was asking a lot of clarifying questions of the witness. He was rephrasing questions for the prosecutor and he was asking his own. Now, this was during a very confusing direct examination of a traffic cop about where cars were located in an intersection - and his questions were helpful. But what struck me was that it came from the judge. It made us wonder - how much interference is too much?

And lo and behold - Peter found this article in the NY Law Journal: (registration required for full access)

"In the present case, the unanimous panel ruled that Justice Arlene R. Silverman's (See Profile) "almost continuous interference" during both the defense's and the prosecution's questioning constituted reversible error, requiring the panel to throw out a guilty verdict in a felony drug-possession trial.

"While we recognize that the dynamics of a criminal trial may result in some intervention by the trial judge in the examination of witnesses, the cumulative effect of the court's extraordinarily incessant interference in this case was to obstruct counsel's effort to present a defense for his client," the panel held in its unsigned opinion, People v. Thorpe, 1406. "This is simply unacceptable."

Apparently, that's too much.

ny state death penalty appeal

2007-09-11T15:10:00.000-04:00

NY High Court hears oral argument on death penalty appeal:
http://www.nytimes.com/2007/09/11/nyregion/11death.html?ref=nyregion

crossing the line

2007-09-07T01:13:00.000-04:00

Just yesterday, we were discussing the line between zealous advocacy and contempt of court. This public defender apparently crossed that line - at least according to this particular judge.

"During a criminal hearing on Aug. 29, Brown attempted to point out that her client "is a homeless man," according to court transcripts. Bayly, however, responded with skepticism: "I don't know that he is." The two argued over the point before Bayly told Brown to have a seat. "Step her back, please. Step her back," Bayly told a U.S. marshal, according to the transcript. Brown was shackled and held in a cell with misdemeanor defendants."

http://althouse.blogspot.com/2007/09/how-judge-ends-argument.html
http://www.abajournal.com/news/dogged_argument_lands_pd_in_jail/
http://www.law.com/jsp/article.jsp?id=1188896550811

papers please

2007-09-04T22:08:00.001-04:00

found from slashdot:
Man arrested for refusing to show drivers license to Ohio police

waive reading of the rights and charges

2007-08-29T22:18:00.000-04:00

Well, the intensity of boot camp in addition to classes has increased significantly, providing an explanation for my lack of blogging the past few days. But a quick update, in bullet form, before sleep.

First: a happy note:
- Having access to the Criminal Law Clinic office is very nice - kind of a safe space to study and bounce around ideas.

Then, a comedy of errors:
- Today was a simulated interview and arraignment. I got the file yesterday afternoon, spent hours trying to make heads or tails of it (a 100+ document titled "how to read a rap sheet" was helpful, but not exactly light reading.) When you're a n00b, even the simple things take forever... so I spent 20 minutes trying to track down a statute based on an unfamiliar acronym (TAR).
- In the mock interview today (recorded on dvd), I caught myself saying "gotcha" to the client several times. Must stop.
- During the arraignment, I made quite the stupid mistake in that I didn't agree to waive the reading of the rights and charges. For whatever reason, I had confused the instruction and stories we had been told about how that's always done and somehow swapped it with having heard ADAs describe, to some extent, the circumstances of the crimes at arraignment. Not the same thing at all. And now, through the power of public humiliation (due completely to my own ignorance), I will never forget to waive the reading of the rights and charges.

But it's always good to get your really stupid mistakes out of the way early. First semester of law school - on the very first day of class in Torts - I spoke up and was completely dead wrong in my reading of a case. Professor Levine corrected me and said something like, "Today is the day to say stuff like that. Go ahead out on that limb - we will bring you back!" I was really embarrassed at the time - but in the end, I pulled a good grade and ended up TA'ing for Prof. Levine.... which I think was due in part to my continuing vigilance to avoid sounding as dumb as I did on the first day.

Finally, some theoretical-perspective observations:
- During the interview, the acting was so good that I actually believed that the client was really lying/trying to manipulate me. My (fake) client was accused of swiping people through the turnstiles of the subway with a forged/bent metrocard. His story was iffy - and at one point he "slipped" and said, "I was standing there waiting for my minutes to expire" - and I almost leapt into cross examination mode: wait? what minutes? did you swipe somebody? did you transfer? And then he got quiet. It's going to be a balancing act that I'm going to have to learn to handle - building the trust with the client so they know I'm on their side, but not seeming like a dupe in the process. At one point he said, "you seem sharp" - and I wondered about the motivation.
I've been told and don't doubt that it's true that our clients, in REAL world situations, are going to have little reason to trust me and strong motives to lie. It's going to be interesting.

Boot Camp Day 2

2007-08-23T14:53:00.000-04:00

Those people who were late for class this morning were upbraided fairly harshly. Toward the end of getting in the mode of being prepared and professional for court, we are to have strict enforcement of professionalism in class. For instance, we are not allowed to get up and walk out of the class for a bathroom break - we have to ask for the class to take a break. Note to self: don't drink water during CLC.

Professor H. told us a story. She was interning as a public defender in the South Bronx. This was back in the late 70's and he was a heroin addict with a very long rap sheet. He could have served over a year, but was offered 90 days for whatever his crime had been, which would actually translate to 50 after credit for good time served. A good deal - but he didn't want it. He wanted a treatment program. The judge said, "Fine - you can have the treatment program - but if you fail it or drop out - you're coming back to court and you'll serve at -least- a year." Everyone thought the client was crazy not to take the 90 days of time - there was actually a betting pool among the court staff about what day he would fail out of the program."
Many years later, Professor H was in another court, representing another client asking for a treatment program. The representative from the treatment program walked up to her and handed her a business card. A moment passed and he said, "You don't recognize me, do you?" She didn't. But it was her old client from the Bronx. He hadn't failed out of the program. He told her that she was the one that got him into the program that had turned his life around. That no one else believed in him.

Also, check this out:
Voyeurism a new crime in Queens?:
http://cityroom.blogs.nytimes.com/2007/08/22/city-council-takes-up-a-bill-to-ban-voyeurism/?hp
Statistics on NY prisons (pdf)
http://www.correctionalassociation.org/PVP/publications/basic_prison_fact_2006.pdf

The Great White Hope?

2007-08-22T21:51:00.000-04:00

After lunch, we headed to The NY County Supreme Court, Criminal Term at 100 Centre Street. We were given a tour by a court rep and a corrections officer, following the route that a defendant brought over from the precinct would follow.
Immediately inside the gate, there was a big sign reading "Finger Off Trigger," causing many of us to giggle nervously. We were brought through the bowels of the building - a veritable suited horde of fairly freshfaced white kids, listening intently to our smartaleck corrections officer giving the tour. We passed signs warning against spreading tuberculosis, and told by a departing suspect who had just been searched: "Don't commit crimes!"

When we got to the holding pens, we were struck by the smell. It was a rich, earthy, heady, sickly smell. Like shit had been wiped up poorly in a hot room. Or vomit. Or sweat. Or a combination of the three. The whole area seemed only to be ventilated by a single large fan. One guy in the pen kept dialing on a pay phone - others were just lying on the ground, stretched out. I don't think many of us made eye contact. I tried to look. To make sure to look. These are the people I'm going to be working for. These people that will probably have been in this place for 20 hours by the time they meet me.

The corrections officer kept joking around about how Foxy Brown had been through earlier. When the first sheet of the rap sheet he gave me fell to the floor, he teased me, saying something like the officer on duty there was a "good fighter, and if you lose those papers, he'll beat you.. and then will lie about it just like a lawyer would." We all laughed.

As we stood outside the "special pens," where we were told that all the trans, openly homosexual, medicated, ill or violent prisoners are kept (and the main source of the smell) - he told us that to be a public defender is "going down the wrong path... go into corporate law!" That, coupled with the tour of the prosecutor's office, made me wonder: "Is it easier to be on the side of the strong?"

One last bit and then I must finish reviewing the CPL for tomorrow's 9am bootcamp.

When we were led through the final pens, right before going through the door to the arraignment court, there was a pretty big crowd of prisoners. We could see the interview rooms on the other side - the rooms where we will be meeting with clients for the first time, right before arraignment. Many were standing, and agitated.. and they reacted when we walked through. They shouted a lot of things - but I caught: "hey! open tickets, open tickets" "Help me out!" "Only an open container!" But through the din, one comment really stood out, spoken quietly and sarcastically:
"Oh look, it's the Great White Hope."

There are no ordinary moments

2007-08-22T21:27:00.000-04:00

Boot camp: day 1, the morning:
The materials for the Criminal Law Clinic (CLC) are actually labeled "Boot Camp." Kid you not.

The eight of us arrived at 9am to begin our 3-week whirlwind preparation to earn our Student Practice Order, which is apparently required before we can be "unleashed" on the unwitting poor and, until we get there, defenseless. Our professors introduced themselves and we reviewed basic materials about criminal process and court structure in NY.

At 12:30, we all headed to Chinatown to lunch at Shanghai Deluxe (coincidentally, one my favorites). The profs went around the table, asking us our greatest fear in the CLC. Several of my classmates are actually pursuing prosecutor jobs, which was a cause of concern for them... and a source of surprise for me. I have always felt like there are those that prosecute, and those that are public defenders. That never the twain shall meet. Kneejerk value judgment aside - it seems to me like it would be difficult to negotiate between those two "mindsets." But of course there must be a variety of viewpoints within each group. Nonetheless - to find out that nearly half of our merry tribe of student public defenders intended to become prosecutors was a smidge surprising.

I expressed my concern about trying to find my own style as a woman in the criminal courts - and how my orientation toward the academic and (likely) more soft-spoken presentation style will fit into this world that (from my few months of observation over the summer) seems to be dominated by fast-talking , brusque "gunslinger" types.

My fortune cookie read: "There are no ordinary moments."

Introduction

2007-08-22T21:11:00.000-04:00

First, an introduction:

I'm Ericka Fowler. I am a third-year law student at New York Law School, participating in the Criminal Law Clinic as of 9am this very morning. This is my last year of law school - and I intend to wring as much learning and experience out of it as I possibly can before returning to the world of employment.

Sooner than is probably advisable, I will be working the Legal Aid Society in Manhattan as a public defender under a student practice order. That means that, although I'm not yet a "real attorney," I will represent clients who can't afford a lawyer in the criminal court. I'm told I will be able to handle my own misdemeanor cases and will be able to "second chair" Legal Aid mentor with their felony cases.

This blog is intended to serve as a touchstone and guidepost; a way to track my experience with the Clinic and serve as a launching pad for discussions on issues related to law and the "System." Confidentiality must be respected, but I intend to be candid about the overall experience.