Welcome to America. Buy one visa and get one police brutality FREE!

Welcome to America, where not speaking English is a curbstomping offense; where any darker skinned individual peacefully walking down the street is a suspect and any cop who asks questions in English, is told “no English”, is too stupid to put two and two together.

Granted, this is Alabama, but by God we are becoming a parody of ourselves: brutish dumb oafs who are outwardly and secretly racist and xenophobic, sitting in our oversized chairs because they’re the only ones that will accommodate our obese bodies, wearing tin foil hats and rocking bath and forth fervently while listening to the crazed ravings of Fox News.

Two videos of the incident later released by Madison police include both audio of the officers involved, and visuals of the exchange. In one video, a pair of officers approach Patel and ask him where he’s headed, what his address is, and request to see his ID. One officer says, “he’s saying ‘no English.’ ”

The second officer continues to ask Patel questions, including “are you looking at houses and stuff?”  Sureshbhai Patel said he tried to tell the officers that he doesn’t speak English by saying “No English. Indian. Walking,” according to the lawsuit. He says he repeated his son’s house number and pointed toward the residence.

Apparently basic instructions and hand signals aren’t good enough for these this Stone Age Alabama cop, so he decides to give Mr. Patel a quick introduction to the curb. Trouble is, this results in Mr. Patel having severe spine and neck injuries and becoming paralyzed.

In a what-should-be-by-now-not-so-surprising-move, prior to the release of the videos, the police were pushing the narrative of a call of a suspicious 30yr dark skinned male walking up and down the street looking at houses and into garages:

The department also released portions of audio and video pertaining to the incident. In a non-emergency call to police, a neighbor described Patel as a “skinny black guy” and said that he’d “never seen him before” in the neighborhood. Patel, he said, was “just wandering around” and “walking close to the garage.” The caller added that he was following Patel at a distance. When asked to estimate his age, the caller guessed Patel was in his 30?s.

The neighbor also told the police dispatcher he was “nervous” leaving his wife because of Patel’s presence in the neighborhood.

Since none of that has been substantiated – the actions, not the call – the narrative has now turned to the only one that it should have been since the beginning: a profound apology, the firing of the officer and a warrant for his arrest.

Great. What about Mr. Patel and the hundreds of people like him who get subject to the psychotic wrath of Officer Friendly? Are their broken spines and shotgun shell riddled faces and their lost lives worth only an apology? If you’ve got such an itchy trigger finger then you probably shouldn’t be a cop. If you see handcuffing and slamming to the concrete a 50+ year old frail man as the only solution to a “stranger walking on the sidewalk” scenario, then perhaps you shouldn’t be a cop. If, if, if.

Maybe it’s time we start questioning how we hire these cops and maybe the burden has shifted to assuming they’re all unstable psychotic bullies.


Tsarnaev: a hearing in futility and the neverending charade


Just when you thought that the window-into-the-criminal-justice-system’s-foibles that the Tsarnaev case couldn’t get any window-into-the-criminal-justice-system’s-foibles-ier, the First Circuit ups and practically shoves an opinion in our faces that screams “CHARADE! CAN YOU SEE IT? THIS IS A SCAM!”

You might remember from my earlier posts that after being denied a change of venue three times, Tsarnaev filed a second Writ of Mandamus in the 1st Circuit, asking them to stay jury selection and move the trial to another jurisdiction. The 1st Circuit finally ruled [PDF]. The headlines will be: “First Circuit grants argument in venue change!”

The reality is that they’ve already told you how they’re going to rule.

In addition to the Second Petition, three motions are pending before this court. First, petitioner seeks a stay of jury selection in the district court, which the government has opposed. Petitioner’s motion to stay is denied as without merit by two judges of this court.

The First Circuit will listen to arguments on whether the jury selection and the whole trial should be moved to another jurisdiction one week from today but they won’t stop jury selection until then. We don’t know how many jurors will be questioned between now and then and if enough will be accepted to seat a whole jury.

Do you really think that next week, the First Circuit is suddenly going to say that, yes, of course, the trial should be moved? Absolutely no chance at all of that happening1.

So why are they granting a hearing in the first place? It seems because they have to:

Our concurring and dissenting colleague has requested oral argument and argument may be granted at the request of a single judge. Accordingly, we will hear argument on the Second Petition on February 19, 2015, at 10:00 a.m.

The panel that issued this order consists of three judges. Out of the three, only one would have granted the stay of jury selection and only one wants to hear oral argument on whether the case should be moved. The lone dissenting judge is Juan Torruella, all of 81 years and a Reagan appointee. He makes the rather obvious point that if a hearing is to be conducted next week on whether the case should be moved elsewhere, then wouldn’t it make sense to halt jury selection until then?

So how do you think the other two will vote come next Thursday? I don’t think Judge O’Toole is worried.

Then there’s also the charade of dancing around the very heart of the matter that’s at the core of this motion for change of venue. Both parties are not allowed to reference items that are sealed below. This means that they cannot reference, in open court, the responses of jurors to questions or to the questionnaire that call into question the ability of Tsarnaev to have a fair trial in Boston.

Judge Torruella again:

Second, while I agree with the order as to the time, place, and length of the hearing, as well as the briefing schedule, I disagree with the restrictions placed upon it by virtue of the sealing order. It will be quite an interesting hearing since the parties will be forbidden from discussing the details of facts directly at the heart of the issue presented: whether the answers given during the jury selection process have demonstrated that the jury pool is so tainted and prejudiced that it is impossible for the Defendant to receive a fair trial.

At 81, he’s no fool. He sees this for what it is: a pro-forma hearing with a foregone conclusion. The First Circuit seems to have made up its mind: this trial will happen in Boston, regardless of how fair the jurors are and at the exclusion of the press and the public if need be.

This is justice in America. Some have called it a Kangaroo Court. I call it Thursday.

  1. I suppose one never says never, but this is as unlikely as a koala giving birth to a caterpillar.

OT: Tweepleball


After years of being in Blonde Justice’s blawgers baseball fantasy league and then years of not having one, I’ve got a hankerin’ for some fantasy baseball this year. It’s been far too long. So, I’ve started a H2H weekly points league over at Yahoo if you’re interested. This is for those who are serious, and are friends on Twitter or other social media type things (hence the Tweepleball).

If you’re interested and want in, mention me on Twitter or leave a comment here.

Provoking prosecutorial oversight

Slate has published an interview with Fordham Law professor John Pfaff (Twitter) that is both very good and very bad. I suspect they contacted him because of his post at PrawfsBlawg (guys, it’s been, like, 10 years. Can we change that name now? Seriously please?) in which he thinks about prosecutors.

Thinking about prosecutors is a very good thing – we here at APD do it often – and it seems that John Pfaff recognizes that thinking about prosecutors is an important thing and he seems to do it often and do it well:

The second question concerns a recent change in prosecutorial behavior that has had a profound impact on punishment in the United States over the past twenty years (and one I have raised in earlier posts as well). Since the early 1990s, prison populations have continued to soar even as crime rates steadily dropped. Why? Well, before asking “why,” we need to ask “who”—whose actions are most responsible for the change.

The basic facts are straightforward: since the 1990s, crime has fallen, and so too have arrests. The likelihood that a felony case results in a prison admission has been flat. The time that admitted person spends in prison has been flat too (I swear—though contrary to conventional wisdom, this is in fact the case). Only one thing has increased: the probability that an arrest results in a felony charge.

The change has been dramatic: over the course of the 1990s and 2000s, the probably that an arrest resulted in a felony case soared, from about 1-in-3 to 2-in-3, and this appears to be the primary engine of prison growth during the crime decline. Thus the story of post-crime decline prison growth is a story of increased prosecutorial aggressiveness.

In fact Pfaff has been at this for a while. Here’s a paper he wrote in 2009 and here’s an accompanying piece in, of all things, Slate in 2009. Here’s another one from 2014. His point is that while a lot of us have been focused on the war on drugs as the main driving force behind America’s incarceration problem, it is but one factor. He urges us to look at prosecutors more skeptically and question their unchecked power and their exercise of their discretion in determining who to charge and with what crimes.

This is, of course, not a novel idea: it stands to reason that if prosecutors are overzealous and heavy-handed and throw around their power, they will charge greater numbers of people with more serious crimes and use the threat of incarceration to get potentially innocent people to plead to lesser offenses and thus boost prison populations, despite actual crime dropping.

Whether there is a direct correlation here is beyond my mathematical abilities, but intellectually one cannot escape coming to the conclusion that this theory holds water. Anecdotal, experiential evidence supports this theory. Every criminal defense lawyer has encountered a prosecutor or three who insists that – despite damning evidence to the contrary – a dismissal shall not be forthcoming and a defendant must agree to accept some responsibility whether real or imaginary. Every criminal defense lawyer has encountered a prosecutor who refuses to forgo a prosecution despite it being the morally correct path to take. Statutory rape cases are the prime example of opportunity for abuse. Additionally, in CT alone – a very small state – there are 1532 offenses one could commit that would land one in jail.

“A pound of flesh” isn’t a phrase thrown about in criminal justice circles because the participants are avid meat eaters.

The Slate interview with Pfaff is a good thing, however, because it highlights the problem with a lack of oversight of prosecutors to the lay individual1.

So what caused prosecutors to become more aggressive? Sadly, no one knows. I thus want to start talking through some of the possibilities, such as other political incentives, changing budgets, improved policing, tougher sentencing laws (which do not necessarily result in longer sentences, but may facilitate plea bargains), etc. Any real reform of criminal justice outcomes in the US will require some change in prosecutorial behavior.

But that’s a tricky thing to accomplish. Not only do we not really understand what motivates or shapes prosecutorial outcomes, but DAs are very hard to regulate: directly elected at local levels, generally unchallenged and politically popular. Any effort to modify prosecutorial behavior will thus likely have to operate indirectly and by persuasion, which of course requires us to know what is persuasive.

There is, as far as I’m aware, no oversight of prosecutors anywhere. Grievances are rarely filed, if ever. There are no boards who review the performance of prosecutors and internal investigations are pro-forma if they are ever performed.2 Even those who are found by courts to have engaged in unethical behavior are rarely punished and not only continue to keep their jobs, but also get promoted and become judges.

The greater the awareness of this issue and the greater public interest we can generate, the better it is for everyone.

But let’s not call prosecutorial oversight “provocative” shall we? What’s so provocative about suggesting that prosecutors are sending more people to jail and thus our prison populations are increasing across the country?3

This is why this piece is very bad. It sets up Pfaff’s theory as some sort of ground-breaking, dangerous, novel idea. It reveals another pet subject of ours here at APD and that is the complete and abject genuflection that the media engages in at the altar of law enforcement.

Most media representations of the justice system are from an solidly “law and order” position: all crime is bad, all criminals are bad, whatever police say is true and every person deserves the punishment they get.

When that is the underlying theme of every story written about the justice system, it isn’t hard to see why an idea that questions the righteousness of those on the “law and order” side of the justice equation would be treated as “provocative”.

I have never understood why the media isn’t more skeptical. They are clearly so when it comes to other forms of governmental power and abuse: the military, state secrets, who’s making how much and which contract was given to which relative. So why do the police and prosecutors get a “can-do-no-wrong” pass? Why are press releases from the police blotter routinely printed verbatim? Why isn’t it equally normal to wonder if the accused in a particular case was given a just sentence or whether the prosecutor really needed to purse a more serious charge when a lesser one would have sufficed?

If judges, defense lawyers, grievance committees, legislators and the media won’t challenge the authority of prosecutors and demand oversight, then who’s left? That’s right: prosecutors.

  1. As lay as an individual who reads Slate can be.
  2. There is this bill raised this year in the CT legislature, but there are no details yet and whether it makes it beyond someone’s draft board remains to be seen.
  3. Though not in CT, apparently, where we’re hitting some record lows.

It depends on what you mean by a fair trial (updated)

Both the Federal Constitution and the state constitution provide every person with several rights when it comes to the kind of trial that he or she deserves: there is a right to a public trial1, a right to a fair trial2 and a right to a trial by an impartial jury3.

Concurrently, the public and the press have a First Amendment right of access to courts and to trials4. These rights combine to form a “presumption of openness”5 and access to courts and judicial documents.

The core value of this right to a public trial is:

Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures.

“[T]he bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.”

Rosado v. Bridgeport Roman Catholic Diocesan Corp.

An impartial jury is one which comes into a trial without any preconceived notions and can put aside whatever biases they may have formed and decide the case based on the evidence presented to it. Just because jurors have been exposed to news coverage doesn’t mean that the defendant is deprived of due process6. Jurors are not required to be “totally ignorant of the facts and issues involved” and prominence does not necessarily produce prejudice, and juror impartiality does not require ignorance7.

Sometimes, however, these core rights are at loggerheads. This is when the public’s right of access and the media’s right to report on court proceedings creates an atmosphere of publicity in which it is impossible to find and seat impartial jurors. This happens in high profile cases where there is such extensive media coverage with inflammatory information and facts that create irreversible biases among potential jurors. In a case like that, the defendant need not prove that each potential juror is actually biased against him, but whether the pretrial publicity constitutes an “extreme circumstance where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable.”8 Since this would be done pretrial, most defendants would seek to have the trial moved to another location where there isn’t such publicity, or wait a long time for the prejudice to abate.

This Constitutional lesson is currently being enacted for the American public in Boston, where Dzokhar Tsarnaev is being tried in a capital case for the Boston Marathon bombings.

That there is immense pretrial publicity in this case is undeniable. The Boston bombing was the top MA story of 2014. This has already prompted Tsarnaev’s lawyers to file three motions for change of venue. [UpdateThe first two were rejected All three have now been rejected [PDF] as was a subsequent Writ of Mandamus filed in the 1st Circuit Court of Appeals [pdf] which that court denied [PDF].9 This is because courts like to think that jury selection can weed out the partial jurors and uncover those hidden gems who can profess to be impartial. In fact, it’s one of the minimization mechanisms required as an alternative to a change of venue.10

It is with that in mind that it seems the district judge and the court of appeals denied Tsarnaev’s first attempts at changing venue.

Then came jury selection, which has been an unmitigated disaster. According to his third Motion for Change of Venue [PDF] and his Second Writ of Mandamus [PDF], juror questionnaires and jury selection have uncovered irreparable biases:

[A]n extraordinary 85 percent of the prospective jurors either believe Mr. Tsarnaev is guilty, or have some self-identified “connection” to the case, or both.

Fully 68 percent of prospective jurors already believe that Mr. Tsarnaev is guilty, before hearing a single witness or examining a shred of evidence at trial.

Even more striking, 69 percent of prospective jurors have a self identified connection or expressed allegiance to the people, places, and/or events at issue in the case. Stronger support for a finding of presumed prejudice in Boston is difficult to imagine, and the existing record precludes a fair trial in Boston.

The news media has done an equally impressive job of documenting the utter futility of seeking impartial jurors and the investigations of potential jurors’ social media accounts have uncovered biases that may have otherwise remained hidden. In fact, a new poll published today in the Boston Globe reveals that almost 90% of people think he is guilty or probably guilty.


11 days of selection have passed, 142 jurors have been questioned and we still don’t know how many, if any, have been selected11.

The First Circuit ordered the Government to respond to Tsarnaev’s Writ today. Whether it rules today and in what direction remains to be seen, but all of this does raise the question:

What do we really mean by a fair trial? Given the juror responses and the polls conducted, it seems obvious that everyone thinks Tsarnaev is guilty. Then why are we persisting with this charade in Boston? Our rules of law require that a decision be made only on the basis of the evidence presented in court. Yet if this trial is permitted to remain in Boston it will become clear that what we mean by “Fair Trial” is merely an “appearance of a fair trial” without regard to reality. Fair trial would mean “a fair trial to the extent that we can provide one under the circumstances”. The right decision here would be to move the trial but can we get past the legalese and make that difficult decision?12 Or is it going to be “good enough” for us to say that “well, we know he’s really, really guilty, so seriously, c’mon guys, the Constitution doesn’t count here”?

The Tsarnaev case has already once delivered a beating to a core Constitutional right. Will there be a second?

  1. Sixth Amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a … public trial.” Article 1, Section 8 of the Connecticut Constitution, as amended by Article XVII of the amendments to the Constitution, provides: “The accused shall have a right … in all prosecutions by information, to a speedy, public trial by an impartial jury.”
  2. State v. Crafts.
  3. Skilling v. United States.
  4. Press-Enterprise.
  5. Nixon v. Warner Comm’n.
  6. Murphy v. Florida.
  7. Irvin v. Dowd.
  8. State v. Marra.
  9. The Second Writ of Mandamus is still pending before the 1st Circuit.
  10. State v. Marra; U.S. v. Sabhnani.
  11. This is because the judge has decided to keep secret the actual selection or removal of jurors and challenges for cause, another First Amendment violation that requires a separate post. The Boston Globe has challenged this here (PDF) and there’s still no hearing or ruling.
  12. This might also explain the trial judge’s ludicrous dismissal of the presumption of innocence.

Good news, everyone

A couple of updates to some pretty awful stories of the last week, both of which involved the arrest of God’s Lawyers™ by police officers.

First, in Allegheny County, PA, the charges against Andrew Capone, who misled the court about whether he had seen his client on the day the client fled from court, were dismissed. Prosecutors, not being used to cases being dismissed over their objection, are still fuming and vowing further action.

Secondly, the completely idiotic arrest of public defender Tillotson by some moronic San Francisco cop that was caught on tape, will also lead to no charges, because sanity finally prevails. In a departure from the above case, while there will be further investigation here, it will be of the police department and their policies and procedures.