Prosecutors must maintain ethical conduct during misdemeanor plea deals, ABA ethics opinion says

By Jason Tashea

When entering into a plea bargain for a misdemeanor offense, prosecutors have an ethical duty to ensure the legal and evidentiary basis of the charges are sound, according to a new formal ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility.

“Observance of the special obligations of prosecutors under the Rules of Professional Conduct is critical to achieving fair guilty pleas,” the opinion states.

Released Thursday, Formal Opinion 486, “Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses,” states that the application of these ethical standards apply regardless of constitutional requirements or whether the defendant is represented by counsel.

“Hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions,” says Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility. “Opinion 486 imposes duties on prosecutors and their supervisors to ensure that the accused has a reasonable opportunity to obtain counsel, that decisions to resolve a case through plea bargaining are grounded in the prosecutor’s independent assessment of the case, and that prosecutors reveal known collateral consequences, which may include deportation and the loss of eligibility for a wide range of public services, including food assistance and public housing. The failure to take the precautions described by the opinion especially harms the poor and minorities, who are disproportionately represented among the defendant population.”

The guidance addresses Model Rules 1.1 (Competence), 1.3 (Diligence), 3.8 (Special Responsibilities of a Prosecutor), 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Person), 5.1 (Responsibilities of a Partner or Supervisory Lawyer), 5.3 (Responsibilities Regarding Nonlawyer Assistance), and 8.4 (Misconduct).

Under Rule 3.8(a), for example, prosecutors may not bring “a charge that the prosecutor knows is not supported by probable cause.” This means that a DA can’t begin a plea bargain without assessing each charge. However, the opinion notes that because of limited resources and the perception that a misdemeanor is “lower stakes,” prosecutors often rely “uncritically” on a police officer’s report. “Unless the prosecutor has reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers who prepare the supporting documents and investigation, reliance on them is likely to be misplaced and the very discretion the Rule is designed to protect may be abused,” the opinion states.

Barbara Gillers.

Additionally, the opinion warns that a prosecutor’s failure to vet each charge independently, could violate the duty of competence under Rule 1.1.

The opinion comes at a time when misdemeanor criminal enforcement has received heightened attention.

About 80 percent of America’s criminal dockets are taken up by misdemeanor offenses, a number that has doubled since 1972, according to the opinion. This trend disproportionately impacts poor and minority people.

At the same time, prosecutors are engaging in plea bargaining before the right to counsel has been raised, using delay tactics or the threat of a higher sentence to keep the defendant from invoking the right to counsel. The opinion also found that tactics, including forcing a defendant to waive his or her right to counsel as a criteria to negotiate a plea, violate the Rules of Professional Conduct and potentially the Constitution.

These practices occur, in part, because many people charged with a misdemeanor are given a citation or notice to appear and are not arrested for the offense, which means the accused is not read his or her rights. In such situations, it may fall to the prosecutor to make clear to the accused their right to counsel.

Noting that, in some cases, the accused may choose to be unrepresented or does not qualify for subsidized representation from the state, prosecutors have unique and heightened duties. For example, if a prosecutor does not mention the impact of the plea deal on a separate case or the broader social or economic impacts of a criminal record, called collateral consequences, it could be considered misrepresentation or deceptive conduct under Rules 4.1 and 8.3(c), respectively.

“A prosecutor will rarely know all of the potentially relevant collateral consequences of accepting a plea or the exact nature of any subsequent sentence enhancement,” reads the opinion. “However, if the prosecutor knows the consequences of a plea—either generic consequences or consequences that are particular to the accused—the prosecutor must disclose them during the plea negotiation.”

Ultimately, the opinion looks to reinforce the idea that, “a prosecutor’s duty is to seek justice, not merely to convict.”

“The professional integrity of prosecutors is essential to the administration of criminal justice,” the opinion states.

via ABA Journal Daily News http://bit.ly/1jXmrxS

May 9, 2019 at 10:31AM

There Is One Legal Out For Don Jr. And He Might Be Too Dumb To Take It

The Senate Intelligence Committee has subpoenaed Donald Trump Jr., the president’s adult son, to testify before the committee. Yes, Don Jr. is being called by the Republican-controlled Senate Intelligence committee chaired by Richard Burr, not the House Intelligence Committee chaired by Democrat Adam Schiff. The subpoena was issued weeks ago, after Don Jr. resisted testifying for a second time, before the redacted Mueller report was made public.

President Trump is tweeting that the Mueller report “exonerates” Don Jr., but it does nothing of the sort. Instead, the Mueller investigation failed to even bring Don Jr. in for questioning, essentially determining that he was too dumb to commit any crimes without even asking him about it.

Don Jr. has already testified in front of the Senate, and the House back when Republicans controlled that body. But since then, it looks like Trump lawyer Michael Cohen has contradicted some of Don Jr.’s testimony, and brought up new questions for Donny. Even the softball investigation being conducted by friendly Senate Republicans would be incomplete without giving Don Jr. an opportunity to defend himself and refute Cohen’s testimony.

I read the move by Burr as trying to help Don Jr. and the Trump family. There’s no way the GOP Senate is going to contradict Mueller or recommend charges against Don Jr. when Mueller did not. Don Jr. just has to go in, tell the truth, or at least not demonstrably lie, and Burr and the other Republicans will do the rest of the work for him. This is a layup.

Of course, most of the Republican party is freaking out. I assume this is because they know Trump and his family are compromised as hell and fear any additional scrutiny about the family’s actions. The GOP knows that “testifying without lying” is a thing these people seem genetically unable to do, so they’re all rallying around the “case closed” line surfaced by Senate Majority Leader Mitch McConnell this week.

CNN reports that Don Jr. is considering just ignoring the subpoena. I point that out just to mention that somehow ignoring Congressional subpoenas without any legal argument to do so is now considered “one option among many” by Trump and the Republicans. That party is now run by mendacious and lawless people.

If Don Jr. doesn’t want to testify, he shouldn’t take the lawless action of ignoring a Congressional subpoena, nor should he take the lawless action of perjuring himself in front of Congress. He should take the Fifth Amendment. He should avail himself of his right against self-incrimination. I know this is a strange way to put it, but taking the Fifth is what LAW-ABIDING PEOPLE DO when faced with Don Jr.’s dilemma.

If Don Jr. goes to jail, it’s likely going to be for financial crimes in the Southern District of New York. The person who might have the goods on him is Trump Organization CFO Allen Weisselberg. It’s unlikely that he will be charged for criminal conspiracy with a foreign government by Trump butler and U.S. Attorney General William Barr. The ONLY WAY he can mess himself up in connection with Russia is if he lies to Congress about it. Testifying truthfully should be easy, and if it’s not, then taking the Fifth should be easy.

Will there be political fallout if the president’s son invokes his right against self-incrimination? Maybe. I happen to believe that both sides are baked in on the issue of whether or not the Trump’s are a crime family, but I suppose there are some low-information voters who will be dragged away from their coffee to talk about their shifting views on television.

But I simply cannot accept living in a world where the political fallout from accessing a legal right guaranteed by the Constitution is worse than simply ignore the law altogether. I mean goddamn. The Fifth Amendment is part of the law, and ignoring subpoenas is a flagrant disregard of the rule of law.

The GOP Senate is not trying to hurt Don Jr. Could this freaking family get through one entire week without screwing up the institutional structure of the country? Take the freaking 5th, Donny boy. It’s better than all of your other options.

Senate Intelligence Committee subpoenas Donald Trump Jr. [CNN]


Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

via Above the Law https://abovethelaw.com

May 9, 2019 at 02:23PM

Inmate who represented himself on appeal and in fourth trial wins acquittal on murder charge

By Debra Cassens Weiss

A Pennsylvania inmate who served nearly 13 years in prison on a murder charge won an acquittal Monday after representing himself on appeal and in a fourth trial.

Jurors deliberated only 81 minutes before acquitting Hassan Bennett in the 2006 shooting death of 19-year-old Devon English and the wounding of 18-year-old Corey Ford, report the Washington Post and the Philadelphia Inquirer.

Bennett said he was at home on the phone when he heard the gunshots and ran outside to investigate. English and Ford were friends.

Prosecutors had claimed that Bennett plotted the crime because of losing $20 to English in a dice game.

Bennett’s first trial in 2008 ended in a mistrial because of jury tampering. He was found guilty in his second trial later that year, but Bennett won a new trial based on his own appellate arguments on ineffective assistance of counsel. The third trial last year ended with a hung jury after Bennett represented himself.

In the fourth trial, which started last month, Bennett once again acted as his own lawyer. He argued that a homicide detective coerced statements from Ford and a co-defendant who wrongly identified Bennett as the shooter. The detective has been accused of coercing witness statements in at least 10 cases.

Bennett noted to jurors that prosecutors didn’t call the detective to testify, although Bennett called him to the stand and accused him of coercion.

Ford and the co-defendant recanted their statements to the detective at trial. Bennett also submitted phone records to back up his story and produced three witnesses who corroborated it.

Bennett said that, when he began to represent himself in the appeal, he took it upon himself to learn the law. He studied in the prison library and received help from his cellmate, who would rip up his handwritten documents if they weren’t written in the proper format.

“He was like my Yoda,” Bennett said in the Washington Post story.

Bennett recounted his opening statement in an interview with the Washington Post. Bennett told jurors to think of the song from Sesame Street that asked viewers to identify what doesn’t belong there. Bennett said he was like Oscar the Grouch among photos of fruit.

Prosecutors might think Oscar the Grouch belongs because he has a smart mouth and is nobody’s favorite on Sesame Street, Bennett said. “But that doesn’t make him guilty when the evidence shows he’s not guilty.”

Bennett said he’s considering a legal career after his courtroom success. A high school graduate, he’s considering college and law school. In the meantime, he has accepted a job with his standby counsel doing investigative and paralegal work, according to the Philadelphia Inquirer.

via ABA Journal Daily News http://bit.ly/1jXmrxS

May 9, 2019 at 01:39PM

Hackers breached 3 US antivirus companies, researchers reveal

An infographic from Advanced Intelligence showing the hacking group Fxmsp’s breach-selling business model.

In a report published Thursday, researchers at the threat-research company Advanced Intelligence (AdvIntel) revealed that a collective of Russian and English-speaking hackers are actively marketing the spoils of data breaches at three US-based antivirus software vendors. The collective, calling itself “Fxmsp,” is selling both source code and network access to the companies for $300,000 and is providing samples that show strong evidence of the validity of its claims.

Yelisey Boguslavskiy, director of research at AdvIntel, told Ars that his company notified “the potential victim entities” of the breach through partner organizations; it also provided the details to US law enforcement. In March, Fxmsp offered the data “through a private conversation,” Boguslavskiy said. “However, they claimed that their proxy sellers will announce the sale on forums.”

Fxmsp has a well-known reputation in the security community for selling access to breaches, focusing on large, global companies and government organizations. The group was singled out in a 2018 FireEye report on Internet crime for selling access to corporate networks worldwide, including a global breach of a luxury hotel group—potentially tied to the Marriott/Starwood breach revealed last November. AdvIntel’s researchers say the group has sold “verifiable corporate breaches,” pulling in profits approaching $1 million. Over the past two years, Fxmsp has worked to create a network of proxy resellers to promote and sell access to the group’s collection of breaches through criminal marketplaces.

In March, the group “stated they could provide exclusive information stolen from three top antivirus companies located in the United States,” AdvIntel’s researchers reported in a blog post going live today. “They confirmed that they have exclusive source code related to the companies’ software development.” And the group offered privately to sell the source code and network access to all three companies for “over $300,000,” the researchers said.

A screenshot of samples of source code presented by the hacking collective Fxmsp showing access to a major US antivirus software company.

A screenshot of samples of source code presented by the hacking collective Fxmsp showing access to a major US antivirus software company.

AdvIntel LLC

According to the AdvIntel report, Fxmsp had managed to steal source code that included code for antivirus agents, analytic code based on machine learning, and “security plug-ins” for Web browsers. “Fxmsp also commented on the capabilities of the different companies’ software and assessed their efficiency,” the researchers wrote.

In the past, Fxmsp’s breaches have typically focused on exploiting Internet-connected remote desktop protocol (RDP) and Active Directory servers. But more recently, the group has claimed to have developed a credential-stealing botnet—malware that collects usernames and passwords—to target high-value networks that are better secured. “Fxmsp has claimed that developing this botnet and improving its capabilities for stealing information from secured systems is their main goal,” AdvIntel’s researchers noted.

via Ars Technica https://arstechnica.com

May 9, 2019 at 10:41AM

Unlicensed Federal Prosecutor Doesn’t Doom Case, DOJ Tells Supreme Court

A federal prosecutor overseeing criminal cases on a suspended law license does not strip a district court judge of jurisdiction over a trial, the U.S. Justice Department told the U.S. Supreme Court.

Criminal defendants do not have “‘a constitutional right to a properly licensed prosecutor,’” U.S. Solicitor General Noel Francisco, quoting a North Carolina district court judge, told the justices in the case Mendez v. United States.

Lawyers for Gilbert Mendez argue the U.S. District Court for the Northern District of Ohio and the U.S. Court of Appeals for the Sixth Circuit were wrong to deny him a certificate of appealability on his claim that his 2005 guilty plea to cocaine charges should be set aside because the law license of his federal prosecutor had been administratively suspended at the time of the indictment. U.S. District Judge Donald Nugent of the Northern District of Ohio ruled against Mendez.

The justices are scheduled Thursday to review the case during the court’s private conference.

The Mendez case is one of several challenges—and perhaps the first to reach the Supreme Court—by criminal defendants whose indictments or trials were handled by former assistant U.S. attorney David Folmar Jr. Folmar was ineligible to practice in federal court from 2003 until 2009. His license had been suspended for failure to keep current with the continuing legal education requirements of the North Carolina bar. (The state bar still says Folmar’s license is suspended.)

During those six years, Folmar was engaged in the practice of law in the Northern District of Ohio, the Eastern and Middle Districts of North Carolina and the Eastern District of Tennessee. In disciplinary action in June 2010, the North Carolina bar found that Folmar had concealed his suspension from his Justice Department supervisors and falsely held himself out to the court and public as qualified to practice law. The North Carolina bar also found Folmar was suffering from personal and family problems.

The bar noted that Folmar enjoyed a professional reputation of honesty. The bar suspended his license for five years, with the opportunity to apply after 18 months for a stay of the remaining time if he complied with a list of ongoing requirements and restrictions.

Most of the challenges stemming from Folmar’s prosecutions appear to have failed. In the Supreme Court, Mendez’s counsel, Sarah Thomas Kovoor of Ford, Gold, Kovoor & Simon in Warren, Ohio, urges the justices to answer “whether the United States’ failure to be represented by a validly licensed attorney deprives the district court of jurisdiction.”

When Folmar signed Mendez’s indictment, Kovoor said, he committed a fraud upon the court and fraudulently induced Mendez to plead guilty. She argued in her petition that the misrepresentation violated Mendez’s due process rights and that the Justice Department’s failure to inform the defense of Folmar’s status and the court’s resulting lack of jurisdiction—both exculpatory information—violated his rights under Brady v. Maryland.

“This problem is not mitigated, but indeed is only aggravated, by the Sixth Circuit’s astonishing statement that any person is ‘authorized’ to represent the United States if that person is merely ‘assigned’ to do so by officials within the Department of Justice,” Kovoor said. If left undisturbed, she adds, that ruling means, for example, “that any unlicensed paralegal or law clerk employed could be ‘assigned’ to represent the government in litigation.”

In the government’s response, Francisco said Folmar didn’t sign the Mendez indictment or the superseding indictment. They were signed by then-U.S. Attorney Gregory White, according to Francisco. Folmar, assigned to prosecute the case, did sign the plea agreement with Mendez, defense counsel and the trial judge.

“This court has long held ‘that defects in an indictment do not deprive a court of its power to adjudicate a case,’” Francisco wrote. The prosecution was authorized by a “proper representative of the government,” he said, and although unlicensed, Folmar was “assigned” by his superiors to work on the case.

Mendez was denied relief by the district court because he failed to show he was prejudiced in any way by Folmar’s suspended license during the prosecution, Francisco told the justices.

Mendez failed to raise a due process claim in the lower courts, “and neither the court of appeals or the district court addressed a claim based on the appearance of impropriety,” according to Francisco. Like that claim, his Brady claim is not properly before the high court because he never raised it below, writes the solicitor general.

Kovoor told The National Law Journal that the government’s reliance on the U.S. attorney signing the indictments “makes absolutely no sense to me.”

Even if there were a factual error in the petition, she said, Folmar was the person who investigated the case, spoke to police officers, made the decision on whether there was sufficient evidence to go forward to the grand jury ,and was the “unauthorized person” in the grand jury room.

Kovoor also said Folmar, knowing his license was suspended, would want to keep that fact hidden, which provided a questionable motive for his role in the plea negotiations.

via Law.com – Newswire https://www.law.com/

May 8, 2019 at 03:30PM

Unless you want your payment card data skimmed, avoid these commerce sites

More than 100 e-commerce sites around the world are infected with malicious code designed to surreptitiously skim payment card data from visitors after they make purchases, researchers reported on Wednesday. Among those infected are US-based websites that sell dental equipment, baby merchandise, and mountain bikes.

In total, researchers with China-based Netlab 360 found 105 websites that executed card-skimming JavaScript hosted on the malicious domain magento-analytics[.]com. While the domain returns a 403 error to browsers that try to visit it, a host of magento-analytics[.]com URLs host code that’s designed to extract the name, number, expiration date, and CVV of payment cards that are used to make purchases. The e-commerce sites are infected when the attackers add links that cause the malicious JavaScript to be executed.

One of the infected sites identified by Netlab 360 is ilybean[.]com, an Orlando, Florida, business that sells baby beanies. As the screenshot below shows, the site executes JavaScript hosted at magento-analytics[.]com.

A quick review of the JavaScript, which is located at https://magento-analytics[.]com/5c3b53f75a8cb.js and partially shown to the right, shows a sprawling piece of code. While it’s hard for non-coders to fully parse, it includes tell-tale variable names, including verisign_cc_number, shipping:firstname, shipping:lastname, verisign_expiration, verisign_expiration_yr, and verisign_cc_cid. Functions suggest it collects the payment card data, and base 64 encodes it and siphons it away.

“This isn’t a new campaign, as the domain has been around for several months already, but it is one of the more active ones, according to our telemetry stats,” Jérôme Segura, head of threat intelligence at security provider Malwarebytes, told Ars. “We block an average of 100 connections to this domain daily from Malwarebytes users that visit an online store that’s been hacked.”

Segura pointed to this search query that showed 203 sites had been affected by the campaign. It appeared that some of the sites listed were no longer executing code hosted on magento-analytics[.]com, most likely because they had been disinfected after being indexed.

Most of the compromises reported by Netlab 360 appear to be hitting niche sites, but at least six of them are part of the Alexa top 1 million. They include:

    • mitsosa[.]com
    • alkoholeswiata[.]com
    • spieltraum-shop[.]de
    • ilybean[.]com
    • mtbsale[.]com
    • ucc-bd[.]com

Ars confirmed that all six of the sites were calling JavaScript hosted on magento-analytics[.]com at the time this post was being reported. Ars contacted each of the six sites to seek comment for this post but hadn’t received a response from any of them at the time this post was going live.

The compromises reported by Netlab 360 are part of a rash of infections that came to light starting late last year affecting, among others, sites for British Airways, Newegg, and seven other businesses with more than 500,000 collective visitors per month. In one case, a single site was infected by two skimming groups that competed against each other. The compromises were still going strong as of two months ago.

Historical IP and whois records show that magento-analytics[.]com has no relation to Megento, the e-commerce CMS that Adobe acquired last year. Attackers likely picked the name to confuse administrators of infected sites.

The full list of sites in Netlab 360’s report is:

adirectholdings[.]com
adm[.]sieger-trophaen[.]de
adventureequipment[.]com[.]au
alkoholeswiata[.]com
alphathermalsystems[.]com
ameta-anson[.]com
ametagroup[.]com
ametawest[.]com
appliancespareparts[.]com[.]au
armenianbread[.]com
autosportcompany[.]nl
bagboycompany[.]com
boardbookalbum[.]biz
boardbookalbum[.]com
boardbookalbum[.]net
boardbookalbums[.]biz
boardbookalbums[.]net
burmabibas[.]com
businesstravellerbags[.]com
clotures-electriques[.]fr
cltradingfl[.]com
colorsecretspro[.]com
connfab[.]com
cupidonlingerie[.]fr
devantsporttowels[.]single site was infected by two skimming groupscom
diamondbladedealer[.]com
digital-2000[.]com
emersonstreetclothing[.]com
equalli[.]com
equalli[.]co[.]uk
equalli[.]de
eu[.]twoajewelry[.]com
eyeongate[.]net
fitnessmusic[.]com
fluttereyewear[.]com
freemypaws[.]info
gabelshop[.]ch
gosuworld[.]com
hotelcathedrale[.]be
huntsmanproducts[.]com[.]au
iconicpineapple[.]com
ilybean[.]com
imitsosa[.]com
jasonandpartners[.]com[.]au
jekoshop[.]com
jekoshop[.]de
junglefeveramerica[.]com
kermanigbakery[.]com
kermanigfoods[.]com
kings2[.]com
koalabi[.]com
lamajune[.]com
li375-244[.]members[.]linode[.]com
libertyboutique[.]com[.]au
lighteningcornhole[.]com
lighting-direct[.]com[.]au
lightingwill[.]com
liquorishonline[.]com
lojacristinacairo[.]com[.]br
magformers[.]com
maxqsupport[.]com
mdcpublishers[.]com
meizitangireland[.]com
mockberg[.]com
monsieurplus[.]com
mont[.]com[.]au
mtbsale[.]com
noirnyc[.]com
nyassabathandbody[.]com
pgmetalshop[.]com
pinkorchard[.]com
pizzaholic[.]net
powermusic[.]com
prestigeandfancy[.]com
prestigebag[.]com
prestigefancy[.]com
prestigepakinc[.]com
prettysalonusa[.]com
promusica[.]ie
qspproducts[.]com
qspproducts[.]nl
qspracewear[.]nl
rightwayhp[.]com
safarijewelry[.]com
schogini[.]biz
shopatsimba[.]com
spalventilator[.]nl
spieltraum-shop[.]de
storageshedsoutlet[.]com
stylishfashionusa[.]com
suitpack[.]co[.]uk
svpmobilesystems[.]com
task-tools[.]com
tiroler-kraeuterhof[.]at
tiroler-kraeuterhof[.]com
tiroler-kraeuterhof-naturkosmetik[.]com
ucc-bd[.]com
ussi-md[.]com
utvcover[.]com
vezabands[.]com
vitibox[.]co[.]uk
waltertool[.]info
waltertool[.]org
waltertools[.]com
workoutmusic[.]com

There’s no easy way for people to know for sure if an e-commerce site they’re browsing is infected. Malwarebytes and many other endpoint security programs will block the best-known campaigns, but new ones pop up so often that these products can’t be expected to catch all of them. People should never use debit cards when making online purchases. Credit card users should be sure to check their statements each month for fraudulent charges. People may also want to consider using temporary cards that have small, fixed lines of credit.

via Ars Technica https://arstechnica.com

May 8, 2019 at 04:21PM

Denver First to Decriminalize Psychedelic Mushrooms

Denver voters narrowly approved a proposal to make their city the first in the nation to decriminalize psychedelic mushrooms, the Denver Post reports. If the unofficial result is certified May 16, police will treat enforcement of laws against possession of psilocybin mushrooms as their lowest priority, similar to the marijuana decriminalization policies that preceded Colorado’s trailblazing pot-legalization vote more than six years ago.

Efforts are afoot to get psilocybin-related measures on the ballot in Oregon and California in 2020. An earlier effort in California last year failed to qualify for the ballot. Psychedelic mushrooms still would remain illegal to buy, sell or possess, with the latter crime a felony that carries a potential punishment of up to a year in prison and a fine. But Initiative 301 backers hope to lower the risk users face of getting caught with mushrooms. Last fall, the U.S. Food and Drug Administration granted psilocybin “breakthrough therapy” designation for its potential to help with treatment-resistant depression, a status that speeds up the development and review process for a medicine containing the substance.

via The Crime Report http://bit.ly/2myW3Gx

May 9, 2019 at 08:41AM

FL Prison Whistleblowers Tell of Racism, Abuse, Coverups

The Santa Rosa Correctional Institution is a crucial backstop in the Florida prison system, responsible for some of the state’s most challenging inmates, but also some of its most vulnerable. But the Panhandle prison also has major problems on its own staff, according to whistleblowers. In interviews with the Florida Times-Union, a dozen former and current employees at Santa Rosa Correctional Institution described a culture of abuse, bullying, racism and administrative cover-ups in the mental health dorms. Officers selected inmates they had problems with for unsanctioned forms of punishment: to include physical violence or withholding their food to the point where prisoners lost considerable weight, employees said.

One former Panhandle prison employee said she filed a written complaint about a correctional officer’s racist behavior, then came into work several days later to another officer dangling a noose made of toilet paper in front of her. Another former employee said she walked in on a handcuffed inmate being beaten in the medical unit, surrounded by a group of officers. She was suspended one day after filing an incident report about it, and fired within two weeks. One former inmate, Ronald Thornton, was one week away from his release date, serving a four-year sentence for cocaine possession, when he says guards told him they had a going-away present for him — a severe beating, which he claims was retribution for his complaints about racist guards.

via The Crime Report http://bit.ly/2myW3Gx

May 9, 2019 at 08:41AM

Cops Celebrated A Copwatcher’s Arrest. They Had No Idea They Were Caught On Tape.

New York City just paid Jose LaSalle of the Copwatch Patrol Unit nearly $900,000 over claims of false arrest related to the 2016 incident, but his fight for justice is far from over.


At around 11 p.m. on Aug. 5, 2016, Jose LaSalle was brought into the NYPD’s Police Service Area 7 in the Bronx in handcuffs. Several officers noticed LaSalle, the city’s most well-known copwatcher, and celebrated his arrest.

“It’s a party! It’s a party! It’s a party! Hey!” one of the officers joyously sang.

When another officer excitedly told LaSalle that he was “a felony collar,” the room broke into applause and cries of “Got him!” and “We did it, guys!”

LaSalle, founder of the Copwatch Patrol Unit, was arrested on disorderly conduct charges. Later that night, officers claimed the walkie-talkie he used for copwatching was illegal and charged him with illegally possessing a radio device that transmits over police frequencies. But the officers were unaware that they were being recorded. Their celebrations and their attempts to falsely charge LaSalle would come back to haunt them.

Lawsuits settled, but LaSalle still seeking justice

In late March this year, the city and the NYPD agreed to pay LaSalle an $860,000 settlement after he accused the police of false arrest, imprisonment, and conspiracy. Also in March, he received $65,000 to settle a separate lawsuit against the department.

But LaSalle wants more than monetary settlements. At protests he held on April 3 outside Bronx District Attorney Darcel Clark’s office and Police Service Area 7, LaSalle said he wants the cops and prosecutors who he said tried to frame him held accountable. He and his lawyer are now considering taking their case to the Department of Justice.

“We gathered in front of the Bronx district attorney’s office to send her a message that she needs to indict these officers that have cost the city close to a million dollars and are still working, and are still doing the same things that they’ve been doing,” LaSalle told The Appeal. “And also, from there, we ended up marching to PSA 7 because we want to send them a message, too, that what they’re doing is standing behind criminals. These officers perjured themselves, and they committed a crime because they tried to set me up with felony charges.”

Bronx cops celebrate an arrest

LaSalle was part of a coalition of activists and families affected by gang raids who sought to push back against them. Just months before LaSalle was arrested, NYPD and myriad federal law enforcement agencies raided the homes of people living in the New York City Housing Authority’s Eastchester Gardens housing complex and made mass arrests. One hundred twenty people were indicted in federal court in what the Department of Justice lauded as “the largest gang takedown in New York City history.”

So LaSalle started paying extra attention to police in public housing during his routine copwatching. The night of the arrest, he was in NYCHA’s Patterson Houses in the Bronx. He began recording Sgt. Miguel Frias, Officer Felix Baez, and Officer Elvis F. Duran conducting stop-and-frisks on two young men. After the officers finished searching the men, they turned their attention toward LaSalle. “Y’all need to stop harassing people for no fucking reason, though,” LaSalle told the officers. The cops got angry at LaSalle for cursing at them.

“It’s my freedom of speech,” LaSalle responded. “I could say what the fuck I want to say. What you going to do? Show your true colors?” One of the officers then told LaSalle to “shut the fuck up” to which LaSalle responded “you shut the fuck up!” Then the cops handcuffed him.

The incident was caught on video.

In the patrol vehicle, LaSalle told the officers, “This is something that you’re going to have to answer to, believe me.”

They replied that they had “no problem” because it “doesn’t cost [them] anything.” LaSalle responded, “You’re right! It doesn’t cost you anything. It costs the fucking taxpayers money.”

When the officers brought him to the NYPD’s Police Service Area 7 in handcuffs, LaSalle noticed that it was in the middle of the shift change, so there were more than 20 officers present. That’s when the officers started celebrating.

“Oh, Jose LaSalle!” one officer yelled as other officers laughed.

“He told me to Google him. I didn’t believe him!” another one of the officers joked.

“Now for him, filming is a crime, right? All right,” LaSalle responded.

And then one of the officers sang: “It’s a party! It’s a party! It’s a party! Hey!”

The police searched LaSalle and removed his belongings from his pockets. They found the two-way radio that he used to communicate with Copwatch Patrol Unit members. LaSalle explained how he used his radio, but the officers insisted that it was a scanner transmitting on the NYPD’s frequency.

“This is illegal. You are now transmitting in our frequency,” one officer triumphantly told LaSalle as others cheered. “You are a collar, my man. You are a felony collar! You cannot transmit in our frequency. That is a FEL-O-NY!”

Loud applause broke out and several officers jokingly cheered, “Got him!”

A fleeting moment of freedom

Months before LaSalle’s arrest, someone taunted and threatened cops on the NYPD radio frequency. The media closely covered the story, so when LaSalle was arrested in August 2016, one officer told a fellow officer to “make sure you call operations, let them know, ’cause they’re looking for guys with this.” That officer also commented that LaSalle’s arrest was “a great collar, especially right now.” A month later, the police said they found the people who were actually responsible for using their radio frequency.

“I was in a cell all the way until 6 in the morning,” LaSalle told The Appeal. “Then they transferred me to the Bronx Central Booking, and I was there until about 9 at night when I was mysteriously released.”

As LaSalle waited to see a judge at Central Booking, he was told to go with an officer. LaSalle cautiously agreed, but the officer refused to answer when he asked, “Where are you taking me?” The officer took LaSalle to a back door, released him, told him he was free to go, and closed the door behind him. LaSalle was confused; he thought it was a set-up so the NYPD could claim he attempted to escape. He would later learn the NYPD had tried to charge him with disorderly conduct and illegally possessing a radio that could transmit over police frequencies, but the Bronx district attorney declined to prosecute.

When LaSalle realized that he was free, he went to Police Service Area 7 to retrieve his belongings.

“I went to pick up every single thing they took from me,” LaSalle told The Appeal. LaSalle then traveled to the Crown Diner on 161st Street in the Bronx to meet with friends doing jail support that night. “I ordered a deluxe cheeseburger with fries. Before the cheeseburger with fries got there, the police got there.” Deputy Inspector Jerry O’Sullivan, Lieutenant Eric Dym, Lieutenant Ramon Tejeda, and Sgt. Raymond Contreras then entered the diner to re-arrest LaSalle.

Shannon Jones, an activist with the abolitionist group Why Accountability, was with LaSalle in the diner that night. “This is really weird because this is your top brass of the precinct rolling up to speak to one guy,” Jones told The Appeal. “The cops basically form this perimeter around Jose and begin to get on their phones and you can hear them discuss the need to confiscate Jose’s technological equipment.”

In a video of LaSalle’s re-arrest, the officers can be seen asking him about the copwatching equipment he had when he was first arrested. After making some calls and talking among themselves, the cops decided to handcuff LaSalle. They told him he was accidentally released without seeing a judge, and took him back to Police Service Area 7 to give him a court date. LaSalle and his law

Bronx Cops Celebrated A Copwatcher’s Arrest. They Had No Idea They Were Caught On Tape.

yer later learned that once LaSalle was released, several top NYPD officials called Bronx DA Clark to inform her that one of her assistant DAs had made a mistake by declining to prosecute and that LaSalle needed to be re-arrested and have his charges reinstated.

Back at Police Service Area 7, officers asked LaSalle for the passcode to his phone. He refused. They took him back to Central Booking where he was eventually given a desk appearance ticket that didn’t even list his charges. He was again released without seeing a judge. When LaSalle went to collect his belongings for a second time, the police said his two phones, a video camera, his two-way radio, and a GoPro camera were being vouchered as evidence. Days later, on Aug. 16, LaSalle and other copwatchers held a rally outside NYPD headquarters to raise awareness of what happened.

Audio of arrests emerge

In January 2017, the Bronx DA’s office dropped all the charges against LaSalle, including illegal possession of a police radio, and sealed the case. Later that month, LaSalle and his lawyer, Jeffrey Emdin, went to pick up his belongings from the NYPD property clerk’s office in the Bronx. They were accompanied by the Bronx DA’s Public Integrity Bureau, including assistant DAs Gary Lee Heavner and Peter Kennedy, and Detective Investigator Peter Moro. LaSalle had Moro forensically examine the devices. The meeting was recorded on video, and LaSalle discovered missing memory cards from his cameras. He also found out through an app installed on his phones that cops tried to unlock at least one. (The app takes a photo when someone attempts to unlock a phone with an incorrect passcode and sends an email alert to its owner along with a photo and even a few seconds of audio.) LaSalle showed investigators that on the night of his Aug. 6, 2016, re-arrest he received three messages indicating that someone had tried to unlock his phone. Another app alert captured a blurry picture and audio of someone saying, “I’m going to shut this off so it’s not on.”

A few weeks later, LaSalle retrieved the remainder of his belongings and realized that one of his phones saved audio recordings of the first of the two arrests. It captured everything, including the police officers celebrating and their discussion of the felony against him.

“When we got the audio tape back and we’re listening to their conversation, you could hear them trying to figure out a felony to charge him with,” Emdin told The Appeal. “Then, there’s even some conversation, and they’re going to say it was joking but I submit that it was tongue-in-cheek joking, of ‘Oh, maybe we can slip the ADA $800 and stick him with a gun charge.’”

The audio recording also captures officers saying they hoped to find weapons like pepper spray or a Taser on him. And officers Duran, Frias, and Baez were recorded reading one of LaSalle’s fliers and mocking the statistics on the number of people killed by police every year. While discussing charging LaSalle with “obstruction of governmental administration” (for recording their stop-and-frisks), Duran said they “could charge him with it, but the DA is going to say that he didn’t come into physical contact with us.” The audio also caught Baez admitting that LaSalle was “15-20 feet away” and therefore not interfering with the officers when he recorded them.

In early April 2017, LaSalle released some of the audio which he dubbed the “Copwatch Tapes” during a rally outside the NYPD’s headquarters. The Bronx DA’s office told NY1 it was investigating the officers’ actions during LaSalle’s arrests, and NYPD Commissioner James O’Neill said, “I haven’t heard the audios yet. If Mr. LaSalle has an allegation he should come forward with it so we can investigate it.”

Later that month, LaSalle and other activists held a rally outside the Bronx DA’s office and crashed the Police Service Area  7 precinct council meeting to demand that the cops who falsely arrested him be indicted. But the office refused to prosecute the officers. The DA’s office did not respond to multiple requests for comment.

‘Something’s got to happen’

The $860,000 that LaSalle received in March over his arrests was a significant settlement for someone who wasn’t beaten or injured by the police. LaSalle said the city and the NYPD did not want to take the case to trial where high-ranking NYPD officers and even Bronx DA Clark would have been called as witnesses. “They didn’t want these officers on the stand to continue to perjure themselves or plead the Fifth Amendment because it would’ve been a big embarrassment to the NYPD,” LaSalle told The Appeal. “They didn’t want to put these officers through that. They didn’t want to put the Bronx DA, who would have to take the stand, which would’ve been crazy, [through that].”

Several of the officers involved in his case have cost the city more than $6 million in total, LaSalle said. According to the Legal Aid Society’s CAPstat database, officers Larry Nikunen, Frias, Baez, Duran, Dym, and Tejeda have all been named in past state and federal civil rights lawsuits, usually in cases involving false arrests and excessive force.

In fiscal year 2018, New York City paid $230 million in settlements in 3,745 lawsuits against the NYPD, according to an April 15 report by New York City Comptroller Scott Stringer’s office. Of the $230 million, approximately $108 million stemmed from allegations of police misconduct like false arrests and excessive force.

“I feel like it’s so easy for everybody to discount people that have been saying for years ‘They pinned this on me! They’re lying! This isn’t true! They violated me in these cells! They planted evidence!’ and all that falls on deaf ears because there’s no evidence. This was the best evidence ever of what happens in these precincts,” Kim Ortiz, an activist who is also a member of LaSalle’s Copwatch Patrol Unit, told The Appeal. “Imagine how many people that don’t have the reputation, the reach, and the resources that Jose LaSalle has. They get fucked, and there’s nobody there. There’s no technology on their phone to save them. They just get stuck in the system.”

On April 17, LaSalle finally got a copy of the city’s Civilian Complaint Review Board’s investigation into his case. LaSalle plans to take his case to state Attorney General Letitia James or even the Department of Justice, and he doesn’t plan on giving up until the cops who tried to set him up are finally held accountable.

“Something’s got to happen. Because I’m not going to stop until these officers are no longer on the job continuing to do these things to other people. So I

Bronx Cops Celebrated A Copwatcher’s Arrest. They Had No Idea They Were Caught On Tape.

’m going to keep fighting for that,” LaSalle told the Appeal. ”And I know it’s a long road ahead of me, but guess what? Thanks to the NYPD, I got a little bit of money to make a little more noise.”

via The Appeal https://theappeal.org

May 9, 2019 at 09:53AM

Nearly 60% of Young Lawyers Pondering Career Switch, Florida Bar Survey Finds

Michelle Suskauer, Florida Bar president and Dimond Kaplan & Rothstein attorney.

Young Florida attorneys are finding their legal careers fall short of the expectations they’d had of the profession.

A new study showed nearly one-third of fledgling lawyers would not apply for law school knowing what they now do about the field, many take little or no vacation, and 58% of respondents have considered changing careers, switching to a different firm or practice, and feel the legal work is becoming “less desirable.”

The data comes from a newly released survey by the Young Lawyers Division of the Florida Bar. Between Nov. 15, 2018, and Dec. 6, 2018, the group collected 1,967 responses from attorneys across the state over a six-month period, with input from psychologists.

Young Lawyers Division membership is open to attorneys who have been practicing for less than five years or are younger than 36. Division president Christian GeorgCourtesy photoe said the survey was designed to gauge the mental health and wellness of attorneys who had recently entered the workforce, to then fine tune programs and resources aimed at providing relief.

“The goal was to find out … what mental health issues are affecting our constituents and how people are dealing with it, either in healthy ways or not,” said George, managing partner of Akerman’s Jacksonville office,

Attorneys on the group’s health and wellness committee put together the survey, then a team of voluntary psychologists modified it, and a Florida Bar in-house statistician made edits and gave it back to the psychologists.

“We didn’t want to just throw a survey together that wasn’t looked at by actual professionals,” George said.

‘Tough Numbers’

It was worth the effort.

The survey also showed more than one-third of respondents said stress had caused them to leave a law office in the past, and more 25% reported they felt they are unable to balance their lives with their legal careers.

Almost one-third of those polled said time constraints kept them from taking more vacation time in 2018.

The questionnaire was released as part of the Young Lawyers Division and Florida Bar’s fifth annual “Health and Wellness Month for Florida Lawyers.”

The topic of mental health in the legal profession has become a subject of renewed focus in recent months, thanks to high-profile incidents. Last year, for instance, Florida’s legal community reeled in the wake of Miami-Dade County Administrative Law Judge Timothy Maher’s Aug. 24 suicide during a standoff  with law enforcement.

Florida Bar president Michelle Suskauer said the results of the survey and “Health and Wellness Month” present an opening for the state bar to better assist those in need.

Courtesy photo“It’s a challenge but it’s an opportunity,” she said. “It’s an opportunity to say, ‘What can we do better to help our young lawyers? What can we do better to help lawyers, all of our lawyers, in dealing with these issues?’ ”

Suskauer said it’s her hope the survey will ultimately provide a guidepost on the challenges faced by Florida lawyers.

“I know this is going to help frame the opportunities for future presidents, young lawyers and bar presidents moving forward,” she said. “They’re tough numbers, but they’re instructional.”

She adds, “I think data always helps you fine tune. … It makes you rethink what are the programs we have and how can we do better?”

George said he’s “too close” to the profession to have been shocked by the survey’s findings.

“This has been one of my passions for so long I was not that surprised,” he said. However, he pointed to other numbers from the results — such as the 79% of lawyers who report a personal sense of satisfaction from their work — that pave a path forward for a profession grappling with how to take care of its own.

“There’s hope,” George said. “If you’re a lawyer and you’re struggling with these issues you’re clearly not alone, and you shouldn’t be afraid to address them.”

He adds, “ I’m hoping as a result of this and other efforts, in five years the disheartening responses will be more positive.”

Read the survey: [falcon-embed src=”embed_1″]

Related stories:

‘My Heart Breaks’: Lawyers React to Miami-Dade Judge’s Suicide

Florida Board of Bar Examiners Settles Suit Alleging Discrimination Over Mental Health

Law Grads Say Schools Don’t Offer Enough Mental Health Support

via Law.com – Newswire https://www.law.com/

May 8, 2019 at 01:36PM