November 27, 2014

Legal Aid's New NYPD Misconduct Database

New York City's Legal Aid Society has a new data collection program called Cop Accountability Program, or CAP, which will gather a myriad of information about cops behaving badly. (Here). CAP is the result of hard work and creative thinking by Cynthia Conti-Cook, an excellent attorney with the sort of boundless energy and enthusiasm necessary to make this program possible. (Disclosure: I know and like Cynthia, if that wasn't clear.) It's great news for both criminal defense and civil rights practitioners, who rely on this sort of information to overcome built-in bias and help persuade jurors, judges, and adversaries that police conduct has indeed occurred.

As the GJ's vote in Ferguson highlighted earlier this week, it remains extremely difficult to convict police officers. In the case of Darren Wilson, the GJ responded negatively when asked merely whether there was enough evidence to proceed with charges. Judges routinely instruct juries that the fact that a witness is an officer does not make his or her testimony more or less credible, but that instruction is virtually meaningless; jurors, like everyone else, perceive the evidence before them through a prism embedded far too deeply to be ignored on command.

November 25, 2014

No True Bill

The sad spectacle of the Ferguson grand jury's long, execrable march towards the inevitable no true bill vote is over. Details of the Michael Brown shooting aside, it has long been clear that whatever the outcome had been, there would be anger, bitterness, and little in the way of dialogue or introspection.

This is the sad state of race relations in this country; the inability of too many white people to acknowledge that race still matters greatly, far more greatly than these folks imagine, the refusal to engage in real discussions about this uncomfortable subject, and the resulting sense that justice was not served in Ferguson and that it may have been unrealistic to think it could it have been.

On a more concrete level, the end result was exactly what the prosecution intended. That Ferguson's chief prosecutor Robert McCulloch's office did not affirmatively ask the grand jury to indict at the close of the presentation says all one needs to know. In sum, prosecutors can virtually always indict anyone they choose, and here, they chose not to, and did so in a way that enables the powers that be in Ferguson to both shift responsibility to the anonymous grand jury, while offering up "objective" arguments as to Wilson's lack of criminal responsibility. Whether Wilson could have been successfully prosecuted or why McCulloch brought about the no true bill vote are open questions. That the grand jury's vote was the result of a calculated effort by the prosecution to avoid an indictment is beyond argument.

November 23, 2014

Blurred Lines: When FBI Informants Commit Crimes

That the FBI (and law enforcement generally) uses informants to gather information and make cases about other criminals is no secret. But what is law enforcement to do when it's informants want to keep committing crimes while providing information? The answer appears to be, let them.

We are not talking about cooperating witnesses. Those are people who will testify at trial, leaving a narrow window for ongoing criminality. But informants are a different story. They provide intel but aren't witnesses. They can remain in place for years, decades even. And that place is normally smack dab in the midst of the bad guys the FBI handlers want info on, and the same guys who are sensitive to the idea that one of their bunch may be snitching. All this means is that the FBI's informants are under all sorts of pressure to keep on doing bad deeds; crimes that the FBI is on the hook for if they're being committed with the government's blessings.

November 20, 2014

Interactive Map Shows Nationwide Race/Arrest Rate Figures

USA Today has published an interactive map that shows arrest rates by race on local levels.

The map is here. I haven't spent much time on it yet, but it appears potentially interesting. Have a look.

November 11, 2014

De Blasio and the Central Park 5 Settlement Reprised

Curiouser and curiouser. The Daily News recently ran a story detailing how deeply the City's Law Department fought against the historic settlement of the Central Park 5 lawsuit. (Here). The News references an internal report issued by the lawyers which argued that the aggregate settlement ought to be capped at $15 million, and that a trial was quite winnable. The thrust of the story was that the lawyers thought the eventual settlement of $41 million was grossly overvalued and unnecessary.

Today, however, Mayor de Blasio, put the responsibility for the settlement squarely on Zachary Carter, the head of the Law Department. (Here). De Blasio flatly denied knowing the amount prior to the agreement, playing any role in the process, or hearing any objections. It's a tough sell and reflects poorly on the Mayor.

November 3, 2014

Unions Denied Entry into Stop and Frisk Litigation

Not too surprising, the Court of Appeals for the Second Circuit (the federal appellate court for New York, Vermont, and Connecticut), has rejected the various police unions' last minute attempt to intervene in the Stop and Frisk litigation and, indirectly, affirmed Judge Shira Scheindlin's 2013 determination that the infamous policy was being unconstitutionally applied.

Vindication for Judge Scheindlin? Eh, sort of, kind of, not really. But it's a good outcome and an end to all the needless drama that flowed from the police unions' attempt to salvage the City's abandoned defense of the Stop and Frisk policy.

November 2, 2014

Second Circuit Finds Search Unconstitutional, Tosses Defense Verdict

A federal appellate court last week held that Connecticut police officers' warrantless entry into a private yard, where they shot and killed the owner's dog, could not be justified simply because the house was in a high-crime neighborhood. Holding that the trial court erred when it allowed the jury to consider the defense of exigency, the court threw out the jury's defense verdict, found that plaintiffs' rights were violated as a matter of law and remanded the case for a determination on damages.

It's plainly the right outcome as the officers' entry onto plaintiffs' property was entirely unjustified. What is interesting about the decision, however, is how reluctantly the court reached this decision. As it turns out, the tip that led the cops to the home, and which they claimed made their entry legal, was utterly baseless; a fact that surely influenced the final ruling, even though it shouldn't have. More to the point, the appellate court found that while the officers had to get a warrant first, there was probable cause for the entry. This ruling emphasizes just how washed out and worthless the PC standard has become, even though it found this particular entry unlawful.