Category Archives: psa

Hold prosecutors accountable to restore faith in the justice system

“Her license remains active and in good standing.” The words rang out at me as I stared at a newspaper article in the Indianapolis Star. It was about the conduct – or misconduct – of a woman named Gillian DePrez Keiffner who is a Deputy Prosecutor there. During trial, she had vouched for the credibility of the complaining witness in a sexual assault case, demeaned and insulted the defense attorney and asked the defendant which of the two 14 year old girls he liked touching better. A few weeks ago, the Indiana Supreme Court reversed the man’s conviction finding that her conduct was improper and deprived him of a fair trial.

Her license remains active and in good standing. It reminded me of Willie Jerome Manning, who this past month, received a new trial thanks to the Mississippi Supreme Court, finding that exculpatory information was not turned over to the defense.

Her license remains active and in good standing. It reminded me of Linda Carty, who is on death row and just a few weeks ago won the right to have a hearing to investigate claims of prosecutorial misconduct. Both a former DEA agent and the only eyewitness to the crime claim that prosecutors threatened them into testifying against Carty.

Her license remains active and in good standing. It reminded me of former federal prosecutor and now Orange County Superior Court Judge Terri Flynn-Peister, who ordered a sheriff’s deputy to only turn over four out of 196 pages of notes about an informant.

Her license remains active and in good standing. It reminded me of Darryl Gumm and codefendant Michael Bies, whose 1992 murder convictions were overturned at the end of January by the Sixth Circuit Court of Appeals because of “flagrant” and “severe” prosecutorial misconduct. Both Gumm and Bies used to be on death row.

Her license remains active and in good standing. It reminded me of R. David Favata, a prosecutor in Delaware whose unprofessional and insulting behavior toward a pro-se defendant and improper vouching for a witness led the Delaware Supreme Court, at the end of January, to reverse a murder conviction and death sentence.

Her license remains active and in good standing. It reminded me of Jennifer Darby, a prosecutor in Colorado Springs. Her “pattern and history of prosecutorial misconduct” including providing false information about a defendant at sentencing, led a trial court judge to enter a dismissal in a third case involving her in the last 6 months.

Her license remains active and in good standing. It reminded me of prosecutors Robert Spira and Paul Vinegrad, the latest objects of Judge Kozinski’s affections. A video of his lambasting of the CA prosecutor trying desperately to salvage the conviction Johnny Baca has gone viral and caused quite an uproar. Kozinski is no stranger to demanding prosecutorial accountability, as I mentioned in my first column for the Law Tribune exactly one year ago. Kozinski’s threats of prosecution for lying prosecutors resulted in California dropping the appeal against Baca, but the viral video cannot be unseen.

Her license remains active and in good standing. Finally, it reminded me of Victor Santiago, who had his conviction reversed because of a “deliberate pattern of improper conduct” by prosecutor Terrance Mariani.

The common theme here seems to be repeated misconduct by select prosecutors with no repercussions beyond new trials for the accused. While that, in of itself, is a just solution, that does nothing to ensure justice across the board. The concerns expressed by Judge Kozinksi and others seem quite valid: without any personal consequences to individual prosecutors, there is no barrier to them repeating their improper conduct in court.

Prosecutors are not the same as defense attorneys. Defense attorneys have one responsibility – and that is to zealous represent the interests of their individual clients. Prosecutors have no individual client and represent the people of the state as a whole. Their responsibility is to ensure justice, whatever that may be. It is not for them to adopt a “win at all costs” mentality. The prosecutorial power should never be a game, with the winner being the one who gets the most convictions. Yet it is precisely that mentality that leads to these unfortunate instances of misconduct which results in injustices in several ways: either innocent individuals get convicted by hook or crook, or guilty individuals go free when courts reverse convictions for due process violations.

Disciplining of prosecutors by ethics boards or internal review committees remains infrequent and elusive. While defense attorneys are routinely “grieved” by disgruntled clients, it is unknown if prosecutors ever are – by anybody – despite demonstrated misconduct. The grievance committee does not see it as their responsibility to initiate an investigation; appellate courts will find prosecutorial impropriety but not refer the individual to the grievance committee and whether the Division of Criminal Justice has an internal review mechanism is known only to them.

I want to make it clear that I am not suggesting that all prosecutors are unethical or engage in misconduct or are caught up in winning rather than ensuring justice. Far from it. Most are honest, hard-working, ethical and reasonable. But there are those who are not, unfortunately, in this State and elsewhere. Whether they are motivated by zeal or a desire to win or a plain dislike for defendants, I do not know.

But justice is not served – the community is not served – when prosecutors are permitted to repeatedly engage in misconduct without any consequences whatsoever. There is a national discussion brewing on how best to ensure that prosecutorial improprieties are minimized and eliminated. I do not subscribe to Judge Kozinski’s view of prosecuting prosecutors, but I do think there needs to be accountability when there has been a finding of impropriety. Every incidence of misconduct – particularly when it results in a reversal of a conviction – undermines confidence in the criminal justice system itself. The system needs to police itself and hold accountable errant prosecutors so we can respect the authority of the system itself. One need look no further than Ferguson and its aftermath to see how dangerous it is when when our faith in figures of authority is lost.

The Judiciary Committee of the state legislature has before it a bill or a proposal for oversight of the Division of Criminal Justice. From what I can tell the bill seems to be nothing more than a title – an idea or a concept. There is no language attached to it and I cannot think of what language might be suitable.

But it is the prompt for a discussion. A discussion that everyone needs to have, however unpleasant and difficult it might be: what is to be done, if anything, to prosecutors who repeatedly violate the law and engage in misconduct?

Here’s the video in case you haven’t seen it:

[This is my latest column for the CT Law Tribune.]

Seattle PD’s arrest of black man is every problem with the justice system in a nutshell

If there were a video and accompanying story that could be used as a textbook example of every problem with our criminal justice system, this is it. First, watch the cruiser cam video (you only need watch from 1:40 to 7:40):

What the video shows is Wingate standing motionless at the crosswalk and Officer Whitlatch pulling over and immediately asking him to drop his weapon and then claiming that he swung it at her.

She then cautions him that the entire encounter is being recorded. Wingate stands there dumbfounded, like someone who never had any negative interactions with anybody:

Wingate is a 70-year-old Air Force veteran and retired King County Metro bus driver had a daily habit of walking and using a golf club like a cane, according to his attorney, Susan Mindenbergs.

But Whtilatch’s version is quite different. This is from the police report:

In the police report filed by Officer Coles about the incident, Whitlatch said “she observed him look at her and aggressively swing his golf club in the direction of her patrol car.” “Because Wingate was still in possession of the golf club,” Coles wrote in the report, “and she was fearful of being assaulted by him, she said that she kept her distance from him upon exiting her patrol car.”

There are four disconcerting things about this:

  1. It seems that Whitlatch is a long-time racist:

Facebook user Cynthia Whitlatch accuses Davis of being a “black racist” and writes, “If you believe that blacks are NOT accusing white America for their problems then you are missing the point of the riots in Ferguson and the chronic black racism that far exceeds any white racism in this country. I am tired of black peoples paranoia that white people are out to get them. I am tired of hearing a black racist tell me the only reason they are being contacted is because they are black solely because I am NOT black.”

in a police department that has had several concerns about systemic racism:

Officer Whitlatch is one of 123 police officers who sued the government last year, at both the federal and city level, to block the Department of Justice–ordered use of force policies. The SPD is under a federal consent decree and is being forced to address the DOJ’s concerns over racial bias and its finding that Seattle police routinely use excessive force.

And obviously a liar, as evidenced by the disconnect between her version and reality.

  1. The police don’t seem to think that it has anything to do with race:

“They know that had this been a white man,” said [former Democratic Washington State representative Dawn Mason], “we wouldn’t be here.” But, in fact, it appears they don’t know that. The Seattle Police Department insists racial bias played no role in the incident.

“If this person had been white,” said SPD spokesman Sean Whitcomb, speaking by phone on Tuesday, “I would imagine it would have been the same outcome. We don’t believe this was a biased policing incident. We don’t believe the officer acted out of malice or targeted this man because of his race.”

At the East Precinct, Mason said, they watched the video with Assistant Chief Nick Metz and East Precinct captain Pierre Davis.

But the police commanders, including Metz and Davis, didn’t see it that way. Mason said they “tried to convince me nothing was wrong.” Metz, in particular, “kept trying to convince us nothing was wrong here. He defended the officer.”

  1. That Whitlatch’s “punishment” was a talking to:

Whitlatch has not been disciplined. “This did not go through the OPA process,” said SPD’s Whitcomb. “Basically, she was talked to by her supervisor.”

She has however, been removed from duty that involves interacting with others:

Seattle police chief Kathleen O’Toole said in a statement this afternoon that she feels “shocked and disappointed” at the way SPD officer Cynthia Whitlatch behaved on Facebook—tacitly confirming that a post-Ferguson Facebook screed about “chronic black racism” and “black people saying poor poor me” was, in fact, written by the same Officer Cynthia Whitlatch who arrested an elderly military vet last summer for “walking in Seattle while black.”  Officer Whitlatch, O’Toole said, is now on administrative assignment, “where she will have no interaction with the public” while a “comprehensive review” of her behavior in this and other cases is completed (along with an independent investigation by the Office of Professional Accountability).

  1. The system condones this behavior. Notice how, in the video, Whitlatch can be heard telling Wingate that it’s all recorded on audio and video. She’s not lying; it is. But she also has to know that the video tells a completely different version than hers. So why is she making that bold claim about the video? Because she knows that no one’s ever going to bother to see it. She knows that it’s a minor charge and the nuisance factor of it is enough to get someone to accept some sort of slap-on-the-wrist rather than spend months contesting what is essentially a minor infraction. She knows that she can get away with it because she’s a cop and what’s in the report will almost always be exclusively relied upon.

And she almost did get away with it:

The next day, prosecutors at the city attorney’s office decided to file a misdemeanor charge of unlawful use of a weapon against him, “based on the SPD incident report,” according to spokesperson Kimberly Mills.

“On that day,” she writes, “Mr. Wingate, who was represented by an attorney, agreed to enter into an agreement under which the case would be dismissed after two years if he complied with all conditions ordered by the Seattle Municipal Court judge.”

What the city attorney’s account of events leaves out, according to Mindenbergs, Wingate’s current attorney, is that the elderly man was told, “If you sign this stipulated order of continuance, it will all be over, basically.” She said her client followed a public defender’s instructions.

As a public defender, I think it’s entirely ineffective and completely defensible. Wingate must’ve been one of hundreds of clients that day. An elderly man accused of threatening a cop with a golf club; a man with no record who probably was just having a bad day. “Your word against the cop’s, Mr. Wingate. And they’re only offering you a deferred adjudication. Who knows if the dashcam even exists?”

And so Wingate pleads guilty. I call it guilt by convenience and that’s what happens when the nuisance value is high enough that people will pled to infractions and small offenses rather than spend the days, weeks, months litigating and fighting minor cases. Most people, believe it or not, don’t like to come to court. Wingate got lucky:

Weeks later, city prosecutors, after conferring with [Deputy Police Chief Carmen Best, who, like Wingate, is black] recommended dismissing both the case against him and the two-year stipulation.

But just imagine how many others there were on that same day, who were harassed, wrongfully accused, arrested and convicted just because an officer like Watlatch decided to flex her muscles.

Well, at least Wingate got his club back and an apology to boot.

H/T: PD Gumshoe

On Serial: a spectator sport for the elite

To say that our system of laws that regulates conduct between members of society is a complex entity is an understatement. While the principles underlying the passage of laws that prohibit criminal behavior and the description of behavior as criminal itself are fairly straightforward, there is almost nothing else beyond that which can be so classified.

The reasons why people come into contact with the criminal justice system, their treatment in that system, the results obtained by the functioning of that system and the output and long-term impact of having been through the system are complicated and intertwined. Economics and education play just as much of a role in what leads people to a life of crime as any inherent proclivities they might have for lawless behavior.

While most people would acknowledge the endemic problems of our system on the macro level, somehow these nuances and complexities are often forgotten when it comes to an examination of an individual case.

It seems that the easiest thing to do is to when dealing with an individual is to ignore or gloss over the fact that the defendant is, in fact, an individual. Perhaps there is something in the human mind’s coping mechanism that forces us to do this, in order to avoid confronting the life-changing impact that the machinery of the justice system has on individual lives.

Most people get their exposure to the justice system not from personal observation or participation, but rather from news reporting by local and national news organizations, newspapers and online periodicals. It is through this lens that defendants, judges and lawyers are presented to the public at large, which often includes judges, jurors and legislators. Public policy and decisions in individual cases are thus formed and shaped and influenced by the perspective of the justice system that is put forth by those in control of the news.

It is this perspective that framed the “tough-on-crime” years in America, which lead to excessive sentences for drug offenders, absurd mandatory-minimums which handcuff judges and prevent them from making individualized decisions, a rampant death penalty and fear-mongering election campaigns which persist to this day.

This one-size-fits-all view of all defendants as mythical “criminals” also influences jurors who are called upon to serve and determine the guilt of an individual. As Justice Frankfurter explained in Irvin v. Dowd:

One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure…How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused.

But the perspective to report fairly and neutrally and intelligently is hard to come by when the reporting is done exclusively by people with little or no familiarity with the justice system. Take, for example, America’s darling crime story of the last year – Serial and the murder of Hae Min Lee by, perhaps, Adnan Syed – and the storm of discussion surrounding the format and the narrator Sarah Koenig. While a significant proportion of the criticism focused on the racial insensitivity, Koenig’s greatest sin in my opinion was letting this opportunity to shine a spotlight on the fallibility of the criminal justice system go wanting.

By making the show about Koenig‘s own Woody Allen-esque quirks, she shines that spotlight inward to her own perspective, her own life-experiences and her own reactions to the facts of the case and then processes of the criminal justice system. Koenig’s assertions that “they must have had enough evidence to convict or else they wouldn’t have convicted him” lay bare a lack of understanding of reality.

That is because, in the end, she is a spectator, just like the hundreds of thousands who tuned in and downloaded her episodes. To her, just like to the many who write court reports by lifting out of the police blotter, experience is always shaped by being in the spectator’s section of a courtroom. To her and those like her, the system is fair and the system is just and that’s a matter of black and white. It is the modern day Coliseum – those who have can sit and watch the blood sport of those who have nothing and are subjugated by a system that confounds at every turn.

It’s unfortunate that Serial has become so popular as a detective story rather than an examination of how imperfect our system of laws is because it has legitimized the idea that the fallibility of the criminal justice system is nothing more than a spectator sport; that there is always a right outcome and a wrong outcome and that the job of the observer is to suss that out, instead of realizing that such an attitude strikes fear in the hearts of those hundreds of thousands who have to rely on the podcast listening elite to determine their fate.

[This is my latest column for the CT Law Tribune.]

Rewarding lying cops: America’s crisis of faith

There is a crisis of faith in America. A crisis that exposes the deep chasms that exist in our society. Traditionally a community caretaking function, and thus deserving of the highest levels of faith, trust and respect, policing in America is now a flashpoint; a litmus test through which to determine which side of the privilege aisle you rest your head on.

A Gallup poll released last week showed that while police departments were one of the institutions that Americans on average had the highest confidence in (57% overall), this was belied by deep divides among racial and political lines. Although, it should be noted, that 57% confidence in an institution whose sole function is to protect the lives and liberties of fellow citizens is truly an abysmal number.

Mathematics suggests that this overall percentage would be higher if police departments decided to make an effort to treat black individuals with the same care and respect they seem to treat white individuals. Blacks trust police at around 34% and urban blacks even less so.

Can you blame them? After the events of the last 5 months, starting with the death of Michael Brown, through to the homicides of Eric Garner, John Crawford and Tamir Rice, through to the mass demonstrations, the no-protesting zones, the “rioting”, the curfews, the non-indictments of Darren Wilson and Daniel Pantaleo, all of this piled onto the overwhelming yoke of stop and frisk, tough-on-crime, the drug war and a lost generation, is there any reason to expect that black Americans should trust any police officer?

Is it any surprise that there is no faith in the community caretaking function of visitor-officers, who are increasingly not a part of the community they purport to keep secure? Do we have any right to demand respect for people like Cleveland Police Patrolman Union chief Jeffrey Follmer who repeatedly refer to a slain 12-year old boy as “the male” and justify the actions of a police officer who almost immediately upon arriving at the scene shoots and kills that child? Why would any level-headed, rational, liberty-loving American give any modicum of respect to a police officer who believes, like so many before him, that it is their job to give orders and civilians’ jobs to obey and get out of the way, or die.

“How about this: Listen to police officers’ commands. Listen to what we tell you, and just stop,” he said. “I think that eliminates a lot of problems.”  “I think the nation needs to realize that when we tell you to do something, do it,” he added.

This is an actual statement by an actual police officer made in 2014 in the Greatest Country in the World, with all its individual freedoms and liberties.

Is there any wonder that there is no respect for police officers, when, on the one hand our courts repeatedly remind us that there is no greater public policy interest than one that ensures the truthfulness and integrity of police officers. These are the people we pay to protect us at night as we sleep. These are the people whom we ask to step in front of bullets for us. These are the people of whom we expect honesty, compassion and a desire to “serve and protect”.

Though if you were to step into a criminal courthouse in America, you would see that there is less truthfulness and more truthiness – truth that wouldn’t stand to be held back by facts – when it comes to testimony from police officers. Is it any wonder, then, that when black Americans accused of crimes confront their Blue Uniformed accusers and listen to them twist and churn and shuffle the truth into truthiness, that they would lose all respect?

I know of no sensible, pot-smoking, drug dealing individual who, upon being approached by police officers, would roll down his windows and offer up the information that he was carrying a lot of marijuana in the car. Yet this account of spontaneous confession is among the most popular narratives to be recounted in police reports across the state and, I suspect, the country.

I am sad to report that courts accept this ludicrous version of events. Is it because they willingly turn a blind eye to a dubious report of an encounter with an eye to a greater good – getting the drugs off the street – or is it because they truly have no experience in the world that is the subject of these prosecutions that they must believe that all Americans are Police fearing first and God second. For it is true that the police “serve” and “protect” the demographic that has up to very recently been the one that overwhelmingly populates our judicial benches.

Malice is not required to discriminate against others and I am certainly not implying that such malice exists. The injustice is a product of the way the system is set up and has been for decades.

Yet how do we ask our fellow citizens to trust and respect the police, especially when dishonest behavior on their part is not only not punished by our courts, but rewarded.

Earlier this week, our supreme court reinstated the employment of a police officer who had been terminated for lying while on the job. In a 3-2 opinion [PDF], the majority concluded that while there existed a strong public policy in requiring police officers to be honest, because this particular officer’s lies weren’t frequent or under oath, it wasn’t worth him getting fired. They cite to Brady v. Maryland as an example of the police’s duty to be honest and seek justice, which is ironic, because a prosecutor in Texas has just filed suit against his office for firing him for disclosing exculpatory information. But back to this case.

Officer Justin Loschiavo, of Stratford, CT, was suffering from epilepsy but had them under control. One day, in 2009, he suffered a seizure, lost control of his patrol car and struck two other vehicles. While no one was injured, he was removed from patrol duty. Over the course of the next 6-9 months, he sought to be reinstated. To that end he got clearance from his personal physician and then met with someone the town had hired to evaluate him.

Turns out, he removed documents pertaining to his seizures and his alcohol use from the file that he turned over to the town’s doctor. It was for this lie that the town sought to terminate him.

The majority makes a big deal of the fact that he didn’t lie to other officers or in the performance of his duties, but as the dissent from Justice Palmer points out [PDF], these are absurd statements: he lied and he lied to remain a police officer. He lied about his medical condition which could put others at risk. If that doesn’t strike at the very heart of what a police officer is supposed to do: be honest, be sincere and help others, then I don’t know what would. It makes no difference that he didn’t lie under oath. How are we to trust that when he does take the stand, with someone else’s liberty at stake – that what comes out of his mouth will be the truth and not some self-serving statement?

Justice Palmer concludes:

In sum, the town had no choice but to terminate Loschiavo’s employment as a police officer because his intentional and serious dishonesty has grievously compromised his credibility and integrity, and he has been rendered unfit to serve as a sworn officer.

I think the same can be said of black Americans’ view of police departments as a whole.

[This is my latest at the CT Law Tribune.]

3 images about Ferguson you need to have handy today

I bet you’re all going to hang out with family today. All families, by law, have one or two racist fucktards who are gonna go on and on about how the Officer was defending himself and acting properly in the line of duty. They’re not gonna get it, but to explain that requires reading.

Here are three images – because people like your Uncle Bill aren’t the best at reading good – that you should print out and shove in their faces:


Via. Note the staggering number of NA for Darren Wilson.


Via. There’s more at the link.

And if you really want to troll someone – and why wouldn’t you? – there’s this:



Happy Thanksgiving.

1 thing you should do after Ferguson

There are lots of websites out there giving you advice on what you can do to help and change things after Ferguson.

It’s cute. It’s stuff like “understand things better” or “hold hands y’all” or “be good to each other” or “realize that black lives matter”.

It’s hogwash. None of that will change anything. I’m here to give you the straight dope. The skinny. The real deal. The inside info.

Here’s what you should do to change things.

  1. Get on a jury.

  2. Vote to acquit.

Done. The more marginal, he-said she-said, uncorroborated, victim-less crimes you acquit defendants of, the less incentive there will be to prosecute such crimes, the less injustice there will be, the fewer police resources will be spent on bullshit and fewer people will die.

Here’s a comedian telling you essentially the same thing, but funnier:

This isn’t about Michael Brown


This isn’t about Michael Brown1. Or rather, it isn’t about just Michael Brown. It certainly isn’t about only this Michael Brown. It’s about race, power and a system that just affirmed itself.

It’s about anger at a system which has trained the powerless to accept their lack of power over and over again. It’s about anger at a system, that despite the promises of the civil rights era, has only affirmed the status quo: some lives are worth more than others. Some people will always get punished more harshly than others.

It’s about anger that those who are the most underprivileged, the most disenfranchised continue to be subjugated under the guise of the best system in the world.

It’s about anger that the ethnic majority has historically viewed and continues to view minorities as dangerous and frightening. It’s about anger that the majority is doing its best to clutch onto its slipping grasp through intimidation and fear.

Michael Brown was shot and killed by a police officer, like many, many others have been shot and killed by police officers. Darren Wilson wasn’t indicted or charged for that shooting like an overwhelming number of police officers haven’t been charged. While whites are certainly victims of police brutality, minorities are overwhelmingly so.

The anger is because it seems that Michael Brown was shot because of his race – and that doesn’t mean Officer Wilson shot Michael Brown specifically because Michael Brown was black. Rather, Wilson shot Brown because of what he believed about black people; what we’ve all read and heard about black people; what we’ve all been conditioned to realize about black people; what popular media regularly portrayed black people as.


And more:

So when he stopped, I stopped. And then he starts to turn around, I tell him to get on the ground, get on the ground.

He turns, and when he looked at me, he made like a grunting, like aggravated sound and he starts, he turns and he’s coming back towards me. His first step is coming towards me, he kind of does like a stutter step to start running. When he does that, his left hand goes in a fist and goes to his side, his right one goes under his shirt in his waistband and he starts running at me.

At this point it looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him.

And the face that he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way.

Like an animal. Michael Brown was an animal to Darren Wilson.

That’s what this anger is about. That this non-indictment exposed the gaping race chasm in America: white people love police and authority when it comes to maintaining the social order. That social order is fairly simple: there are the whites who can do whatever they want, then there are the “criminals” and the “minorities” and the “gays”, except those that act like the white people. The system exists to contain the teeming masses of minorities/criminals and to keep them in check. If a black man is killed by a police officer, well that’s his fault.

As I’ve written before, for White America, the police force exists as a private security force, to keep them and their belongings safe and secure and separate from the uncouth, uncivilized and dirty Blacks and Hispanics. (Here’s another must-read on the subject from The Atlantic.)

For the rest of America, the police force is sadly nothing but an oppressor acting with the imprimatur of the greatest Democracy in the World.

That’s what this anger is about. It’s about the death of one boy, for sure, but it’s also about the death of the right to be free and the right to be equal in America.

It’s about the death of Dr. King’s dream.