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Conduct and Ethics 2010

Posted 11/08/10

ANSWERING TO A DIFFERENT AUTHORITY

When it comes to the death penalty, a would-be Attorney General’s fealty to the law has its limits

     By Julius (Jay) Wachtel.  Is there a point at which a District Attorney should call out the law?  For San Francisco D.A. Kamala Harris, now locked in a tight contest for California Attorney General, that threshold has long been capital punishment.  It’s not as though she’s kept it a secret.  Her promise to never seek the death penalty was right in her 2004 inaugural address:

    As a community that is smart on crime, we must reject simplistic approaches to public policy. Dr. Martin Luther King taught us that, “injustice anywhere is a threat to justice everywhere.” It takes much more than building prisons and locking away prisoners to keep our city safe. I will only use “3 strikes” when the third strike is a serious or violent felony. And I will never charge the death penalty...At the same time, let me be clear that anyone who commits rape, molests a child, commits murder or does any other violent act will meet the most severe consequences and will be removed from this community so that they can do no more harm.

     Harris has remained true to her word, recommending not one case for capital punishment during her two terms (San Francisco voters, who are overwhelmingly opposed to executions, reelected her in 2007.)

     Yes, there have been a few “glitches” along the way.  Perhaps the most notable involved the murder of a San Francisco cop. On an evening in April 2004 San Francisco police gang officers Isaac Espinoza and Barry Parker were patrolling a dangerous neighborhood in an unmarked Crown Victoria when they encountered two men. One seemed to be hiding a gun under his coat.  As Espinoza pursed him on foot the man turned and fired 14 rounds from an AK-47 rifle, killing Espinoza and wounding Parker.  The killer, whose coat, ID and weapon were recovered nearby, was identified as a 19-year old gang member who had done time in a youth prison for a gun-related crime.

     Three days after the incident D.A. Harris announced that in line with existing policy her office would not seek the death penalty. It did, however, file first-degree murder and other charges. But despite abundant evidence prosecutors couldn’t even get that.  Jurors were swayed by the defendant’s improbable assertion that he thought the officers were gang members, not cops and convicted him of the lesser offense of second-degree murder.  Fortunately the judge was not so easily fooled.  She imposed a sentence of two consecutive life terms without the possibility of parole.

     Harris drew a lot of flack on this case.  Some came from a friendly source. A former San Francisco public defender suggested that her quick decision to forego the death penalty made it seem “more like a reflection of a philosophical animus to the death penalty rather than an individualized exercise in discretion.”

     Harris just ran for California Attorney General.  (See above video. The race was very close and remains undecided.)  She caught a lot of grief over her anti-death penalty stance.  Her campaign flack, Brian Brokaw, tried to deflect criticism over the cop-killing case by suggesting that the jury’s verdict supported Harris’s decision to not seek the death penalty. What he didn’t mention was that the “decision” was predetermined.  Neither did he touch on the fact that her office’s failure to secure a first-degree murder conviction might simply demonstrate its incompetence.

     After the killing Harris reportedly established a committee to review potential death-penalty cases and make recommendations. It’s hardly surprising that no such case has ever managed to overcome her philosophical objections.

     Bar associations and such offer prosecutors lots of ethical advice, particularly when it comes to defendant rights. To whom a District Attorney owes their fealty gets little attention.  Occasionally there’s a reference to Berger v. United States, the 1935 Supreme Court case in which Justices addressed the role of the United States Attorney, the top Federal prosecutor in each Judicial District:

    As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

     Kamala Harris’s public stance on the death penalty pretty well thrashes the “servant of the law” model. California Penal Code section 190.3 provides that when the death penalty is an option it’s up to the “trier of fact,” meaning the jury, to determine whether the special circumstances that justify capital punishment are true, and then to decide on either death or life without parole. Harris made this process moot, apparently by directing her attorneys to not charge special circumstances in the first place.  Is that illegal?  Your blogger found no law requiring that D.A.’s charge special circumstances when they’re present.  Prosecutors are typically tough-minded, law-and-order types, so legislators probably didn’t anticipate that one might choose to sabotage their work out of hand.

Click here for the complete collection of conduct and ethics essays

     Still, Kamala Harris did take the oath of office prescribed by Article 20 of the California Constitution:

    I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter....

     Does openly disavowing a legal penalty, then circumventing the process which the Legislature prescribed for its use, constitute a “well and faithful” discharge of duties?  Your blogger thinks not, but then again, he’s not a lawyer.

     On the other hand, he has taught criminal justice ethics, and here the balance turns decidedly against Harris.  Criminal justice practitioners who have a conflict between, say, conscience and duty can recuse themselves and leave the decision to others, or, less effectively, have their prospective decision “vetted” by their peers. Alas, San Francisco D.A. Harris is doing neither (her death penalty “committee” seems nothing more than a pretend version of the latter approach.) So from this perspective your blogger would consider her death penalty decision-making process unethical.

     What about Harris’s plans as Attorney General?  She has repeatedly promised to “uphold the law” if elected. One hopes so, as it’s the A.G.’s duty to contest death penalty appeals.  But while it wouldn’t be out of line for an Assistant A.G. to be against the death penalty – after all, they can avoid these cases – Harris aims to be top dog. Even if she recused herself from overseeing such matters Harris still decides who gets hired and promoted. Her beliefs could discourage lawyers from applying for a job, and would surely take the wind out of the sails of A.G. staffers who work on death penalty appeals. When the problem lies with the boss, there really is no remedy.

     Incidentally, as your blogger’s made abundantly clear (click here and here) he’s against capital punishment. Then again, he’s not looking to be A.G.

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Posted 10/10/10

NEVER HAVING TO SAY YOU’RE SORRY

The limits – if any – of prosecutorial immunity are the focus of a new Supreme Court case

     By Julius (Jay) Wachtel.  If the criminal justice system had “worked” the way that Orleans Parish prosecutors intended this posting wouldn’t exist, as John Thompson would be rotting in his grave and his case would have been long forgotten.  But a few weeks before May 20, 1999, the day Thompson was to meet his Maker, a defense investigator happened across an extraordinary document.

     It was a lab report, previously undisclosed to the defense, analyzing the blood found on the pants leg of one of the victims of an attempted armed robbery. This blood, which was indisputably the robber’s, was type “B”.  That piqued the investigator’s interest. You see, the robbery, which happened three weeks after the December 1984 murder for which Thompson got the death penalty, had also been pinned on Thompson.  In fact, prosecutors took him to trial for the robbery first so that if he was found guilty they could use that conviction to impeach him at his murder trial.  (He was, and they did.)

     Yet they didn’t use the blood evidence. Instead, they relied on shaky eyewitness testimony.  Why?  As it turned out Thompson’s blood type was different.  It was “O”.

     Fourteen years later, as the execution date approached, Thompson’s lawyers presented indisputable evidence that prosecutors knew of the blood-type discrepancy but never let on. Not only was that a clear violation of
Brady v. Maryland, which requires that the State share potentially exculpatory material with the defense, but a stunning moral breach as well.

     Since Thompson’s bogus robbery conviction was used to get jurors to go for the death penalty, a judge placed the execution on hold. Eventually both convictions were set aside.  But prosecutors decided to retry Thompson for murder.  This time, though, the defense had reams of exculpatory material, including previously withheld police reports that suggested a third party was the real killer.  (This man, who had given officers conflicting accounts about the murder, was later shot and killed by a security guard.)

     Jurors were out half an hour. Four years after his close brush with death, and eighteen after getting locked up for two crimes he didn’t commit, Thompson was finally a free man.

     He then sued Orleans Parish for violating his civil rights under 42 USC 1983.  After winning a $14 million judgment in Federal District Court, then having it affirmed in the Fifth Circuit, Thompson must have been disappointed when the Supreme Court elected to hear the D.A.’s appeal (Connick v. Thompson, no. 09-571), a move that is often a harbinger of reversal.

     The Court’s grant of certiorari was hardly surprising.  Three decades earlier, in Imbler v. Pachtman, justices unanimously ruled that “the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system” requires they be absolutely immune, even when a prosecutor’s “malicious or dishonest action” leads to a wrongful imprisonment.

     Like Thompson, Imbler had been convicted of murder and sentenced to death.  He served nearly a decade before a Federal district judge found that the prosecutor, Pachtman, knowingly used false and misleading testimony and withheld evidence of Imbler’s innocence. Imbler was released and the murder case was dropped. It was his lawsuit against Pachtman that eventually led the Supreme Court to grant prosecutors a Hail Mary pass so they could do essentially as they pleased.

     Knowing full well how the Supreme Court felt about such things, Thompson’s legal team sued the office, not the man. Turning to settled law (Canton v. Harris) they cited the duty of municipalities to properly train their employees (in this instance, to disclose potentially exculpatory information under Brady) and avoid being “deliberately indifferent” to the public welfare.

     That wasn’t a unique approach.  In January 2009 the Supreme Court unanimously turned away Tom Goldstein’s civil rights lawsuit against Los Angeles County prosecutors (Van de Kamp v. Goldstein, no. 07-854).   Exonerated after serving 24 years for murder, Goldstein had been railroaded by the testimony of jailhouse informer Edward Fink (regrettably the man’s true name), a notorious liar who sought to earn “discounts” for his own misdeeds.

Click here for the complete collection of conduct and ethics essays

     Goldstein sued the D.A. for keeping derogatory information about Fink secret and for failing to train his staff about informers. But it was no dice: in a relatively brief decision that relied heavily on Imbler, the Court turned Goldstein away.  (For more on the Goldstein case click here.)

     Thompson’s lawyers took pain to distinguish their case from Goldstein’s.  Their brief emphasizes that their target isn’t an individual prosecutor but, as in Canton, a “municipality” (p. 51).  Oral arguments took place four days ago.  Things didn’t go particularly well for either side.  According to the AP the Justices were skeptical about Thompson’s training remedy. On the other hand, an online legal source reported that the Court grilled Louisiana’s lawyer about the Brady violations, which as one justice pointed out are inherently difficult to detect.

     There are good reasons to reconsider Imbler.  Many prosecutorial shenanigans have been uncovered in recent years.  In a notorious 2008 example, a judge set aside the corruption conviction of the late Senator Ted Stevens when it turned out that the Feds had failed to disclose exculpatory material and apparently coached a witness to lie.  DOJ has since embarked on a still-ongoing national probe of Federal prosecutorial practices.   (Tragically, a career attorney who was under investigation for his role in the Stevens case recently committed suicide.)

     Clearly not all is well in Federalville.  “Misconduct at the Justice Department,” a USA Today investigative series, discovered 201 instances since 1999 where judges accused Federal prosecutors of “flagrant” and “outrageous” legal and ethical breaches including hiding evidence, suborning false testimony and lying to courts and juries.  Forty-seven defendants were freed or exonerated. But meaningful punishment seemed nonexistent.  In a typical example, two Federal lawyers who admitted they purposely failed to turn over exculpatory evidence were suspended – for a day. Another, whose misconduct caused a man to be wrongfully convicted, was ordered to attend an ethics workshop. Reacting to the defendant’s exoneration, the prosecutor said “it is of no concern to me.”

     And that’s just the Feds. A just-released California study identified 707 instances of misconduct by state and county prosecutors between 1997-2009. Twenty percent led courts to apply remedies ranging from excluding evidence to dismissing a conviction. Sixty-seven lawyers were named more than once. Only one is known to have been disciplined by the Bar.

     When the Court suggested in Imbler that civil lawsuits were overkill and that errant lawyers could be controlled by Bar associations there was no DNA, hence little inkling that wrongful conviction was a serious problem.  As the Justices well know, that has changed. Yet thanks to Imbler’s safe-conduct pass the Court finds itself in a dilemma.  Whether it hides behind its precedential cloak, finesses things to allow limited relief, or breaks free to chart a new course promises to be as consequential a decision for the prosecution function as Miranda has proven for policing.

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Never Say Die


Posted 8/15/10

BEFORE JETBLUE* THERE WAS MAJOR DYMOVSKY

A Russian cop bails out (figuratively) over corruption.  Should we pay attention?

     By Julius (Jay) Wachtel.  Aleksei Aleksandrovich Dymovsky was fed up. During his years as a cop in Novorossiysk the 32-year old chief of detectives had grown weary of the moral depravity that pervades Russian policing. It wasn’t just about taking twenty bucks here and there to supplement the meager pay, a temptation to which even he had succumbed. No – it was about a lot more, from staging arrests and searches for the sole purpose of extorting cash, to brutalizing suspects, to “solving” crimes by forcing innocent persons to confess.

     Major Dymovsky didn’t have an inflatable escape slide, nor an airplane galley stocked with beer.  So last November he did the next best thing.  After (presumably) pouring himself a tall glass of vodka he recorded a video clip and posted it on YouTube. “Dear Vladimir Vladimirovich...” he said, respectfully addressing Premier Putin by his patronymic.

     Really, he did. Click on the image to watch a subtitled version.

     One can guess the official response, and, as well, its career consequences. But before we get too smug about American cops here’s a news flash: for all the cultural differences, when it comes to misconduct our officers give the Russians no quarter.

     No, this isn’t a story about Russia, where one might expect the worst, but about the good old U.S.A., where police corruption is supposedly a distant memory.

The Bad Old Days

     New York City (time immemorial – mid 1990’s). Audiotapes secretly recorded by Frank Serpico, a disillusioned American cop who went undercover, were used by the 1972 Knapp Commission to expose entrenched, widespread corruption in the NYPD, ranging from shaking down citizens to stealing and reselling drugs.  Two decades later the Mollen Commission reported that if anything things were worse.  Indeed, by the mid-1990’s the situation was so dire that one particularly greedy precinct, the 30th., was referred to as “The Dirty Thirty.”

     Miami (1980’s). It began with extorting drug peddlers. Before long a hundred-odd “River Cops” were cruising the Miami shoreline, but instead of arresting smugglers they grabbed the cocaine to sell later and threw the suspects overboard.

     Los Angeles (1980’s – 1990’s).  Deputies assigned to the L.A. Sheriff’s Department Majors Squad started out by skimming seized cash to buy supplies and incidentals.  Soon they were using the loot to buy boats, cars and vacation homes. A decade later officers in LAPD’s Rampart Division took an anti-gang crusade to new heights, planting evidence, lying on reports and covering up bad shootings.  Numerous cops lost their jobs, some were prosecuted, more than 150 felony convictions were tossed and suspects were awarded $70 million-plus in civil judgments.

     New Orleans (1990’s). And who can forget The Big Sleazy, where in a single three-year period sixty officers were charged with crimes ranging from drug dealing to murder. In a chilling example two rookies robbed a restaurant while on duty, and when an-off duty cop tried to intervene they shot him dead, along with two employees. But they forgot something. When the triggerman (actually, a female cop) returned to the crime scene an employee who hid during the robbery identified her.  And there was the brutal cop who hired a hit man to kill a pesky complainant (he wound up on death row.)

     Whew, those were pretty bad days, all right.  But that was then, this is now. Haven’t things gotten a lot better?

The Great New Days

     Camden (2007 – 2009).  “It’s going to be a headache for a lot of people for a long time.”  That’s what a former New Jersey police captain said about the scandal unfolding in Camden, where two cops recently admitted that their squad regularly planted evidence and stole money and drugs.  More than 200 criminal cases have been dismissed and several prison inmates have been freed.  Two other officers and the supervisor are under investigation and will presumably face charges.

     New York City (1992 – 2010).  Internal affairs case files recently obtained by the ACLU reveal that more than one-hundred NYPD officers are arrested each year for crimes ranging from consorting with prostitutes to running a gambling empire connected with organized crime.  One officer was charged last December with distributing cocaine.  Two more were arrested this February for using their badges and guns to rob a warehouse.

Click here for the complete collection of conduct and ethics essays

     Philadelphia (? – 2010). In a startling press conference only days ago, Police Commissioner Charles Ramsey announced that he was embarking on a “crusade” to eliminate a culture of corruption that forced him to fire fifty-one officers, half for criminal conduct, since he took over as chief in January 2008.

     New Orleans (time immemorial – 2010.) “I have inherited a police force that has been described by many as one of the worst police departments in the country.”  Since May, when freshly elected New Orleans mayor Mitch Landrieu’s plea for help landed on the U.S. Attorney General’s desk, thirteen NOPD officers have been indicted for needlessly killing four citizens during the chaos of Hurricane Katrina. They allegedly tried to cover their tracks by burning olne of the bodies, planting a gun and spinning tales of fictitious eyewitnesses.

     Chicago (1999 – 2008).  In May the City of Chicago agreed to pay a total of $16.5 million to as many as twelve-thousand persons who were arrested for felonies without adequate cause, and were then brutally treated while in custody, ostensibly to get them to confess.

     Houston (2010).   In June four police officers were indicted, three were fired and five were suspended over their roles in the vicious beating of a handcuffed 16-year old burglary suspect. Caught by security cameras, the incident inflamed a city that was already reeling from the acquittal of an officer who shot and killed a black motorist he had mistakenly suspected of car theft.

     Tulsa (2007 – 2009).  Oklahoma’s placid burgh is reeling from news that five current and former police officers and an ATF agent ran a years-long criminal enterprise, lying on search warrants, stealing cash and narcotics, framing suspects and selling drugs.  The agent and a cop have pled guilty; four officers are awaiting trial. Several wrongfully convicted persons have been let go, including one serving two Federal life sentences.

     Well, you get the picture.  So what’s to be done? All the usual suspects – poor hiring practices, lousy training, inadequate supervision, a loose moral climate – have been exhaustively addressed in public reports (e.g., the Knapp Commission) and decades of criminal justice literature.  Of all these issues inadequate candidate screening seems perhaps the simplest to rectify. LAPD’s investigation into the causes of Rampart laid much of the blame on hiring candidates with significant drug and criminal histories. Years later a major hiring push by the L.A. Sheriff’s Department was followed by a wave of significant disciplinary problems among rookie deputies.  An independent assessment concluded that in striving for numbers the standards crumbled, with predictable consequences.

     It can’t be said that police are ignorant of the risks of feeding from the bottom.  Former Miami police executives blame the River Cops scandal on a hiring binge that gave guns and badges to poorly educated, undisciplined youths, including former thieves and gang members. “Our reference to them as time bombs was exactly that. Sooner or later, they’re going to go off. We just don’t know which of them are time bombs or when they’re set to go off.”

     Considering what’s expected of a cop, many agencies have long required more than just a high school diploma.  Serious problems have led some that didn’t, like Washington, D.C. and Chicago, to tighten their standards.  Both now require either two years of college, significant military experience or a combination. Even the hidebound NYPD boasts that more than half of a recent academy class had four-year degrees. Yet the supposedly progressive LAPD and L.A. Sheriff’s Department continue welcoming applicants with nothing beyond a G.E.D. or a passing score on the California high school proficiency exam, a test of English and math that can be aced by a reasonably bright sixteen-year old.

     One would think that after all the ethical meltdowns police entry standards would be commensurate with the grave responsibilities that go along with the job. Alas, one would be wrong.  If at this very moment Major Dymovsky were to parachute into any large American city he would probably feel right at home.

     And that’s not a good thing.

* In a recent incident aboard an arriving flight, a JetBlue attendant fed up with rude passengers grabbed a beer from the galley, activated the emergency slide and slid to freedom. He’s now a folk hero.

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Posted 7/18/10

EXTREME MEASURES (PART II)

Turning cops into immigration agents invites misconduct and corruption

     By Julius (Jay) Wachtel.  Everyone knows that they can be stopped by police for a traffic infraction. What many don’t realize is that officers can detain them at length for other reasons, and with far less justification than is required for an arrest. Barring a last-minute decision by a Federal judge, Arizona cops will soon be wielding that authority in an unprecedented way.

     A.R.S. § 11-1051B, which takes effect July 29, 2010 provides that in any “lawful contact stop, detention or arrest made by a law enforcement official...in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien...unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation” (emphasis added.)

     There’s nothing new about “reasonable suspicion.” More than forty years ago, in the landmark case of Terry v. Ohio, the Supreme Court authorized officers to temporarily detain persons (and, if warranted, to pat them down for weapons) if there was reasonable suspicion that they had committed a crime or were about to do so.  However, officers can’t simply rely on conjecture; what’s needed are “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

     From hot-spot policing to anti-gun patrols, stop and frisk has become a key component of the police arsenal.  Since Terry a series of Supreme Court (U.S. v. Sokolow, 1989; U.S. v. Arvizu, 2002) and circuit court decisions have continued to grant police considerable leeway in deciding when to make a stop.

     As we suggested in “Too Much of a Good Thing?” the inherent subjectivity of reasonable suspicion stops make them ripe for abuse.  Yet until now they’ve always been directed at ordinary crime and ordinary criminals, things that police know something about.  So one can imagine what Arizona POST faced when it was charged with training the state’s cops to take on the role of border police.

     POST’s hastily-produced 90-minute instructional DVD begins with excerpts from the speech delivered by Governor Jan Brewer when she signed the controversial measure:

    My signature today represents my steadfast support for enforcing the law, both against illegal immigration and against racial profiling...As committed as I am to protecting our state from crime associated with illegal immigration, I am equally committed to holding law enforcement accountable should this statute ever be misused to violate an individual’s rights....

     Concerns that Arizona will be accused of racism suffuse the video.  Hardly a minute goes by without one of its half-dozen instructors reminding viewers that they must ignore race and ethnicity when considering whether someone is illegally present in the U.S.  To underline that point lawyer Beverly Ginn brings up U.S. v. Montero-Camargo, a Ninth Circuit decision which held that Hispanic appearance is irrelevant in a community – in this case, El Centro – whose ethnic composition is substantially Hispanic.  (Ginn leaves out the qualification. Neither does she mention that, as the justices readily conceded, Montero-Camargo contradicts the one Supreme Court case on point, U.S. v. Brignoni-Ponce, which held that “Mexican appearance” can be a factor – just not the only one – in forming reasonable suspicion of illegal entry.)

Click here for the complete collection of conduct and ethics essays

     As one sits through the presentations it’s obvious that applying reasonable suspicion to immigration matters is far from simple. Viewers get clobbered with a voluminous list of indicators ranging from lack of ID (when having ID is required), to voluntarily making incriminating statements, to evading police, being with known illegal aliens or at a place where illegal aliens gather, riding in an overcrowded vehicle, traveling in tandem, providing false, misleading or nonsensical information, difficulty communicating in English, nervousness, and so on.

     How many factors will do? Well, viewers must figure that out for themselves. So here’s a question.  In two weeks, when the law is scheduled to take effect, will cops be sufficiently “trained” and “experienced” to form reasonable suspicion of illegal presence in the way that the Supreme Court intended?

     Originally the bill authorized police to detain likely immigration violators on sight.  Yet, having declared an illegal alien emergency and devised a jaw-dropping remedy, legislators apparently had second thoughts. What if their newly-empowered brigadoons run amok?  That led them to insert a precondition: yes, suspected immigration violations must be investigated, but only within the context of a lawful detention for an extraneous, non-immigration reason; for example, while writing a ticket for a traffic infraction.  One can well imagine all the pretextual stops and dishonest reporting that will encourage.

     Arizona’s law is an ideal platform for other forms of misconduct. To be sure, police can threaten to arrest for many reasons, but even in traffic cases the legal process doesn’t end with the cops.  Illegal immigrants are caught in a different vise.  Letting cops get mixed up in immigration matters will let the unscrupulous few take advantage to line their pockets or worse, with little chance of detection.

     Knowing that every police car is a potential deportation machine must be a chilling prospect for victims and witnesses. It’s one of the reasons why Phoenix police chief Jack Harris and Tucson police chief Roberto Villasenor came out strongly against the law. Naturally, their opposition will make officers think twice before enforcing the measure. That portends serious conflicts down the road, as politicians tug one way and cops another.  (Villasenor appears in the POST video, apparently to reassure skeptical officers that whatever happens, the world won’t come to an end.)

     In our earlier post we agreed that Arizona needs better border enforcement. Yet transforming street cops into immigration police is a step into the Twilight Zone. ICE doesn’t cruise city streets. Their patrols stick close to the border, where on-sight violations (think overloaded, speeding vans) are obvious and concerns about racial profiling seldom arise.  Immigration agents work in teams, concentrating on workplace violations and immigrant smuggling rings. And still they get in trouble. One can only wonder what will happen should legions of cops step into the fray.

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Posted 3/7/10

A COP’S DILEMMA

When duty and self-interest collide, ethics can fly out the window

     By Julius (Jay) Wachtel.  Protecting public officials may not be the primary mission of the New York State Police, but there’s no denying that the Executive Services Detail, a unit of about 200 officers who guard the Governor and his family, is the most prestigious assignment to which Troopers can aspire. With David Paterson’s picture prominently displayed on the department homepage (a photo of recently-departed Superintendent Harry Corbitt is buried two layers down) there’s little doubt as to who’s really in charge.  And that may be part of the problem.

     On Halloween evening, October 31, 2009, New York City cops were summoned to a Bronx apartment where an anguished woman told them that David Johnson, a man with whom she had been living, “had choked her, stripped her of much of her clothing, smashed her against a mirrored dresser and taken two telephones from her to prevent her from calling for help.”  Johnson, who is six-foot seven, was gone, and officers filed a misdemeanor report.  Two days later, while seeking a restraining order in family court, the victim told a referee that her assailant could probably be found at the Governor’s mansion.

     You see, David Johnson was until days ago the Governor’s top aide.  Originally hired as an intern in 1999, when Paterson was a State Senator, the strapping young criminal justice major (he later earned a degree) followed his mentor into the executive, and with virtually no other experience gained so much influence that he was soon giving instructions to high State officials, including, to the chagrin of the Governor’s security detail, their own boss.

     This wasn’t Johnson’s first tangle with the law.  When eighteen he was arrested for selling crack to an undercover officer. Johnson served five years probation as a youthful offender.  Neither was it his only instance of assaulting women. During his service as a Senate aide Johnson had several altercations with girlfriends, including an incident where he punched one in the face.

     Unseemly as they were, those encounters didn’t lead to charges (one victim said she had previously called police about Johnson, but to no effect.)  But the Halloween incident was different. According to the New York Times, on the very next day Johnson prevailed on the Governor’s security detail commander, State Police Major Charles Day, to call the victim, ostensibly to smooth things over.  After getting clearance from above, Major Day did so, reportedly three times. Former Commissioner Corbitt also got involved, dispatching a subordinate to contact the woman, a curious act as the State Police has no jurisdiction over cases of domestic assault in New York City. Although officials insisted that the calls and visits were out of concern for the woman – in Corbitt’s words, “to offer [her] counseling and tell her she had ‘options’,” – the victim found the contacts heavy-handed and complained about them in court.

Click here for the complete collection of conduct and ethics essays

     That’s when the Governor himself took hold of the matter. Enlisting an aide who happened to know the woman, Paterson arranged to personally speak with the victim, and after several calls apparently got her to drop the case.

     And that’s where it would have ended but for the New York Times.  When it first broke news of what happened Paterson minimized his involvement, then to demonstrate good faith suspended David Johnson without pay.  But as reporters kept digging the heat got to be too much for State Police Commissioner Corbitt, who abruptly quit. As demands grew that Paterson resign (he’s also facing allegations of lying about getting free tickets to the World Series) his top criminal justice advisor, Denise O’Donnell, and his communications director, Peter Kauffmann bailed out, the latter going so far as to say that he was protecting his own integrity, thus implying that the Governor had asked him to lie.

     It’s not the first time that chief executives have compromised New York’s finest. In 2007 then-Governor Eliot Spitzer got State Police Superintendent Preston Felton to use State Police officers to dig up dirt on Spitzer’s nemesis, Senate majority leader Joseph Bruno. An extensive investigation led to hefty fines and the end of several careers, including Felton’s (he retired) and Spitzer’s (he resigned when it was revealed that he was consorting with call girls.) Before that, Governor Pataki had been accused of using the State Police detail to interfere with a Federal investigation of his campaign staff. Indeed, a report on the misuse of the State Police and the “politicization” of the Executive Services Detail was recently issued by New York Attorney General Andrew Cuomo. Who requested it?  Governor Paterson, supposedly to prevent a recurrence.

     When was it delivered?  September 8, 2009, less than two months before Halloween.

     Security details are in intimate, 24/7 contact with protectees and their families, so they’ll routinely encounter situations that call for heavy doses of discretion and forbearance.  It’s inevitable that officers will grow close to their charges, occasionally too much so. While he was Governor of Georgia, former President Bill Clinton got so buddy-buddy with his State Police protectors that they allegedly procured him female companions.  Later, once Clinton was in the White House and unsavory stories began to leak, at least one of the former guards was offered a job, purportedly to keep quiet about the past.

     What took place in New York is of course different, yet its roots are much the same.  Officers working protective assignments are there at the sufferance of the executive, and all the more so for the detail leader, whose plum job rests on remaining in good terms with the protectee, the protectee’s family and key staff members. Pressures to go along to get along can turn cops into enablers and, if what’s suspected in this episode is true, co-conspirators in obstructing justice.

     Temptations often arise in policing.  Most are ultimately controlled through the same means that deter ordinary citizens – the penal law.  Officers who succumb to the lure of graft by stealing money from drug dealers have wound up in prison. But when the benefits of ignoring one’s duty are less tangible, keeping things on the up-and-up is usually left up to the department.  That’s particularly true for protective details, whose members the law treats as though they’re ordinary peace officers, doing the work that cops normally do. Of course they aren’t, and they don’t. Situations like the above might have never developed if protective officers were forbidden by statute from injecting themselves or exercising authority in matters that are none of their business. That would give every officer the best possible excuse for staying out of trouble:

    “I’d really like to help you [Governor, Superintendent, detail leader] but it’s a crime for me to do anything other than physical protection.  My career and freedom depend on it. I sure hope you understand.”

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Posted 2/21/10

A TICKING TIME-BOMB

Twenty-four years after being let off the hook, a murderous woman goes on a rampage

    I was not on duty at the time of the incident, but I recall how frustrated the members of the department
    were over the release of Ms. Bishop...The release of Ms. Bishop did not sit well with the police officers
    and I can assure you that this would not happen in this day and age.

    Braintree, Massachusetts police chief Paul Frazier, commenting on his department’s lackluster investigation, twenty-four years earlier, of the shooting death of Amy Bishop’s brother.

     By Julius (Jay) Wachtel.  Chief Frazier’s thoughts were echoed by current Norfolk County D.A. William Keating.  Minutes after “accidentally” killing her brother with a shotgun blast to the chest, Bishop burst into an auto body shop and at gunpoint ordered workers to give her a getaway car. They didn’t. She then refused to surrender when police arrived (an officer who snuck up behind her finally got the shotgun away.) How could his predecessors have ignored that?

     On Saturday morning, December 6, 1986, Amy Bishop was twenty-one and living with her parents and brother in Braintree, an affluent Boston suburb.  After a dispute with her father she brought his shotgun to the kitchen, supposedly to get help unloading it. But when her brother stepped in to assist, Bishop swung the muzzle in his direction, discharging a round and fatally wounding him. She then fired another round into the ceiling and left.  That, if one believes Bishop and her mother, would have been the young woman’s third unintentional discharge of the day, as she had also just shot a hole in her bedroom wall.

     Once she was at the police station Bishop clammed up, so some questions never got answered. Why did she need an escape vehicle?  Why did she have a shotgun shell in her pocket? And since the shotgun was pump-action, requiring that users manually work the slide to expel an empty cartridge before firing again, how could she have accidentally discharged three rounds? Then an even bigger mystery arose. Word came from police chief John Polio to let her go.

     In his report to prosecutors, the state trooper assigned to the case said that Bishop was released in part because of her “highly emotional state,” and in part because the shooting was already deemed accidental:

    This officer therefore determined that due to the inability to further question the witnesses at that time as a result of their highly emotional state and their inability to recall specifically the facts relating to this occurrence, as well as the fact that [Bishop’s mother] stated that she had witnessed the entire affair and the discharge had been accidental in nature, it was determined that additional interviews would be conducted at a later time, allowing the witnesses a sufficient time to stabilize their emotions.

     Or to get their stories straight. Either way, Bishop’s fingerprints would never make it into State or Federal databanks.

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     Eleven days later the trooper and two Braintree officers, a captain and a detective, went to the Bishop residence to interview the young woman and her parents, obviously not the way one would investigate a possible murder but understandable if the purpose was to tie a pretty ribbon around a package entitled “tragic accident.”  As one might expect, Bishop and her parents insisted that’s exactly what it was, and their words were accepted at face value. Inexplicably, the trooper’s report made no mention of the body shop incident and subsequent stand-off. (It does state that Bishop said that she blanked out after the shooting and couldn’t remember anything until arriving at the police station.)  The trooper and the Braintree cops (no pun intended) declared that the shooting had been accidental.  Case closed.

     Ex-Chief Polio now insists that he was never told about the events at the body shop and has “no regrets whatsoever” about what he did. One can only imagine how his comments were received at the University of Alabama at Huntsville, where Bishop, a biology professor, systematically gunned down six colleagues at a faculty meeting two Fridays ago. (Three are dead. Two are in critical condition and the sixth is recovering. True to form, Bishop again insists that she remembers nothing.)

     Why did she do it?  A Harvard Ph.D. with a reportedly bright future in biotech, Bishop had been denied tenure, a rare step that was probably influenced by her poor reputation with students.  Put off by her general weirdness and odd lecturing style – she read straight from the book and avoided eye contact – several dozen reportedly took the rare step of petitioning the university in writing. “When it came down to tests,” said a former student, “and people asked her what was the best way to study, she'd just tell you, ‘Read the book.’  When the test came, there were just ridiculous questions. No one even knew what she was asking.”

     Well, there are plenty of odd ducks in academia.  Yet few would go so far as to punch a fellow diner in the face just because she happened to get the last booster seat, as Bishop did at an International House of Pancakes in 2002.  That time Bishop actually got arrested. A judge later turned down a prosecutor’s request that she be ordered to take anger management classes, and after six months all charges were dismissed.

     A tragic “accident” and a slip-up do not a personality make, you say? Fair enough. So what is one to think of that 1993 incident where a Harvard professor who was involved in a dispute with then-graduate student Bishop got two pipe bombs in the mail?  Bishop and her husband were interviewed by ATF. Although agents apparently suspected that the husband bought the pipe-bomb components, Federal prosecutors ultimately refused to charge the couple for lack of evidence. Curiously, Bishop’s husband has said that ATF had issued him and his wife a letter of clearance. (ATF doesn’t issue such things, as your blogger, a retired agent, knows.  Challenged about the document, the husband now claims it was lost.)

     One could go on about Bishop and her temper – former neighbors and associates had lots to say about that – but enough about her.  Let’s turn to the fateful decision made by police and prosecutors in 1986.  Why did they let Bishop go?

     Braintree, an upper-middle class Boston suburb of about 34,000, has one of the lowest crime rates in Massachusetts, if not the whole U.S. (it reported a total of two murders between 2000-2008.)  Unaccustomed to serious violence, police were caught off-guard by a killing that intimately involved members of the town’s social elite (Bishop’s mother and the novelist John Irving are cousins.) Although patrol officers were upset, their more politically-attuned superiors and the state trooper seemed anxious to avoid getting caught up in a fight with a prominent couple that had lost a son and seemed ready to lose their daughter as well.  But there was a niggling obstacle.  “It was almost like they wanted to put it on the shelf and forget about it,” a former body shop employee said during a recent interview. Armed with the shotgun, Bishop had screamed at him to raise his hands (he did).  “[If it was] me I’d be wrapping up a long prison sentence. But with this, it seems like they just wanted it to go away.”

     Is that why the trooper’s report was incomplete?  John Kivlan, the supervisory prosecutor who handled the case, said that had he known about the body shop incident things would have turned out differently.  In the end, whatever the reasons, an explosively violent young woman managed to avoid any consequences. She wasn’t arrested or confined, didn’t get mental treatment, and her behavior wasn’t monitored.  Bishop married, earned a prestigious Harvard degree and moved to Alabama, where no one was aware of her deep secret.  U of A’s background check turned up nothing.

     Then the ticking time-bomb went off.

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Posted 2/15/10

LIARS FIGURE

Pressured by Compstat, police commanders cook the books

     By Julius (Jay) Wachtel.  Who would have thought? In response to a questionnaire more than one-hundred retired NYPD officers with ranks of captain and above said that crime reports were routinely fudged to minimize the number of Part I offenses that had to be reported to the FBI.  Dodges ranged from tweaking thefts so that losses fell under $1,000 to encouraging victims of violence to minimize what took place, thus holding down the number of aggravated assaults.

     Conducted with the assistance of the command officers’ union, the survey forms the basis of “Unveiling Compstat: The Naked Truth.”  A forthcoming book by criminal justice professors John Eterno and Eli B. Silverman, it asserts that the deception was driven by weekly Compstat sessions where headquarters staff mercilessly grilled precinct commanders over crime in their districts.

     As might be expected, NYPD reacted angrily. Pointing to other studies that affirmed the accuracy of the department’s stats, officials suggested that those surveyed either weren’t in a position to know whether the books were being cooked or were simply passing on rumors about the same incident. Professor Eterno, who retired from NYPD’s crime analysis section before becoming an academic, poo-poohed that notion.  “Those people in the Compstat era felt enormous pressure to downgrade index crime, which determines the crime rate, and at the same time they felt less pressure to maintain the integrity of the crime statistics.”

     It’s not the first time that NYPD has found itself in the cross-hairs of a crime reporting controversy. In 2005 it successfully fought off attempts by a city investigative commission to look into alleged tinkering with the stats. More recently, the department admitted that such “manipulation” led to the removal of three district commanders.  What’s more, an NYPD officer on suspension for other reasons recently accused his precinct, including a Lieutenant known as “The Shredder” of systematically reducing felonies to misdemeanors and refusing to take crime reports.

     Several victims backed up his account.  One told reporters that he was bloodied in a street robbery but all officers did was take a “lost property” report. Another, an elderly man, complained that police refused to believe his home was burglarized because of a lack of “evidence.”

     There’s no doubt that Compstat sessions can unnerve police commanders, placing them on the hot seat over deep-rooted social problems that cops can’t hope to influence. And while the steep downward trend in crime that got underway in the nineties has seemingly leveled off, Compstat brooks no such excuses. Crime must keep going down, or else.

     Exaggerating accomplishments isn’t a problem only in the Big Apple. A 2009 report by the Florida Department of Law Enforcement attributed chronic under-reporting by Miami police to “a self-imposed pressure that certain [officers] felt as a result of the implementation of Compstat.” One of the examples cited was a carjacking that police downgraded to an “information report.”

     Miami police chief (and Compstat booster) John Timoney rejected the findings out of hand. That impolitic response probably cost him his job. Timoney joined ex-Detroit police chief James Barren, who was fired last year after DPD and the medical examiner got caught classifying homicides as self-defense and suicide.  A Dallas newspaper investigation revealed that police were reporting only half the crimes called for by FBI guidelines. Dallas hasn’t counted being beat with a pipe as an aggravated assault since 2007; to keep from counting unfounded vehicle break-ins it’s also supposedly stopped reporting real ones.  Meanwhile Baltimore police have been classifying shootings with multiple victims as a single crime. Just like NYPD, they’ve also jiggled the value of stolen property to keep incidents from reaching the felony threshold.

     Lying about stats to look good is nothing new.  Speaking at a 2009 conference of criminal justice journalists a reporter for the Philadelphia Inquirer described a scandal uncovered by his paper more than a decade ago.  “The phony stats were known for many years. Aggravated assaults were easily changed to simple assaults…Precinct commanders used to joke about this, but behind those statistics are real victims.”

     Of course, there have always been pressures to show improvement.  Yet in the charged, accusatory atmosphere of Compstat, where numbers are king, officers may feel that they have little choice but to dissemble. Indeed, complaints by commanders that they were being ridiculed in public led NYPD to bar outsiders from attending Compstat meetings. (Of course, the meetings didn’t stop.)

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     Camden’s abysmal finances and sky-high crime rate led the State to place the Attorney General in charge of the police.  Compstat was promptly installed.  During one of the tense meetings that the police union called “nightmares”, the AG’s representative challenged a 25-year police veteran to explain why an undercover squad arrested only one person in four days:

    “Let me ask you this.  You’ve been a police officer for quite some time. Does that [only one arrest] sound right?”

    “No, sir.”

    “No, it doesn’t. It doesn’t,” the AG’s man self-righteously concluded.

What the inquisitor didn’t ask, probably because he didn’t know any better, was the obvious: Was it a major arrest? Did it require intensive investigation?  Was the suspect a particularly desirable target?

     Amplified by the widespread embrace of Compstat, pressures to reach numerical objectives have displaced worthy goals and turned cops into liars.  Cooking the books has also brought assumptions about crime trends into question.  Long considered the world’s premier source of crime data, the UCR can’t be any more trustworthy than its weakest link, the police.  Considering what’s been happening around the U.S., that’s not a reassuring notion.

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Unveiling Compstat     Quantity and Quality     Production and Craftsmanship in Police Narcotics Enforcement

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Cooking the Books     The Numbers Game     Is the UCR Being Mugged?     A Very Dubious Achievement

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