Florida Ex-Inmate Voting Threatened by New Ruling

Lance Wissinger is hugged by Permon Thomas as Neil Volz looks on as they fill out their voter registration forms at the Lee County Supervisor of Elections office on Jan. 8, 2019, in Fort Myers, Fla. Wissinger and Volz, both with felony records, were able to register to vote for the first time after an amendment took effect. (Joe Raedle/Getty Images)

Voting rights advocates are scrambling to understand the impact of an appeals court decision blocking some Florida felons’ eligibility to participate in elections, the Washington Post reports. The case is a blow to efforts to restore voting rights to as many as 1.4 million people. The U.S. Court of Appeals for the 11th Circuit in Atlanta halted a judge’s order that had cleared the way for hundreds of thousands of felons to register to vote. The judge had found that a state law requiring them to pay fines and fees first amounted to an unconstitutional voting tax if they are unable to afford it. The appeals court scheduled a hearing for Aug. 18, the same day as Florida’s primary election. It’s unclear if the court will decide the issue in time for the presidential election, or if the court’s ruling will be appealed to the U.S. Supreme Court.

On Wednesday, the Campaign Legal Center asked the Supreme Court to vacate the circuit court ruling, saying it has “thrown the election rules into chaos.” Sean Morales-Doyle of the Brennan Center for Justice’s Democracy Program said the ruling “will surely mean that we are once again in a state of some confusion when it comes to people’s eligibility, as we were before.” Voting rights activists worry the uncertainty of the issue may discourage former inmates from trying to register even if they’re eligible. The re-enfranchisement of Florida felons has been a contentious issue since voters passed Amendment 4 in 2018. The amendment cleared the way for most felons, except those who had been convicted of murder or felony sexual offenses, to register. About 85,000 felons have registered since Amendment 4 went into effect last year. Florida had been one of a few states that barred felons from voting for life.

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July 9, 2020 at 10:47AM

Supreme Court Lawyer on Tax Return Rulings: ‘If I’m Donald Trump, I’m Scared Right Now’

After the U.S. Supreme Court issued a pair of 7-2 decisions in high-profile cases on President Donald Trump’s tax returns, the prevailing consensus among legal experts was that the rulings were a mixed bag: the High Court reaffirmed that no one—including the president—is above the law, but also shielded Trump from potential political damage in the here and now, and likely until after the 2020 election. But Supreme Court litigator Neal Katyal argued Thursday that those takes were off the mark.

Appearing on MSNBC, Katyal said the prevailing notion that the president had weathered the storm surrounding his financial documents was wrong.

“I’ve been listening to our reporting for the last half hour and I love my MSNBC colleagues and analysts, but I profoundly disagree with almost everything that’s been said. This is not a ‘mixed bag’ or a victory for Trump. Trump shouldn’t be happy about this. The fact is he lost,” Katyal said, responding to NBC News’s Pete Williams.

The former acting U.S. Solicitor General then addressed the perception that the cases, Trump v. Vance and Trump v. Mazars, being returned to the lower courts meant that the proceedings would be tied up in litigation until well after the 2020 election.

“Look, these cases can move very quickly. The Nixon tapes case moved in a matter of three months; Bush v. Gore, start to finish – the election dispute of 2000 – 36 days. This is all about the election of 2020, and I expect Cy Vance to move incredibly fast,” he said, adding that Trump’s remaining legal defenses in the case are nothing more than a “paper-thin shield at best.”

Katyal concluded by discussing the his view of potential timeline leading up to the November elections.

“I think it’s totally possible for all of this to come out before the 2020 election in terms of New York’s prosecutors getting this information and acting on it,” he said. “So I would caution all those folks who have been listening to this for the last half hour and say, ‘This is a mixed bag.’ It is not. If I’m Donald Trump, I am scared right now. Whether or not it comes before or after the 2020 election, Cy Vance is going to get this material, and it looks pretty damaging to Donald Trump.”

Later in the day, Katyal described the court’s decisions as “scary for Trump,” suggesting it was going to be “easy for courts to decide the New York case, particularly since the SCOTUS opinion today leaves Trump with very little left to say.”

Former federal prosecutor and Law&Crime legal analyst Gene Rossi concurred with Katyal’s take.

“I fully agree with the brilliant [Katyal],” Rossi wrote. “The two tax and financial cases are not wins by any means for President Trump. The SCOTUS essentially said the Emperor has no clothes. And he is crowing because he found a tiny four-leaf legal clover to cover himself?”

Former federal prosecutor and MSNBC legal analyst Joyce White Vance sided with Katyal’s take this was a clear loss for the president, particularly when you consider that Justices Brett Kavanaugh and Neil Gorsuch ruled against the president’s arguments of absolute immunity.

[image via Chip Somodevilla/Getty Images]

via Law & Crime https://lawandcrime.com

July 9, 2020 at 02:22PM

With PPP Money Dwindling and Cases Rising, ‘Substantial Uncertainty’ Remains for Firms

Photo: fizkes/ Shutterstock

Law firms have been relieved that the COVID-19 pandemic has not been as financially catastrophic for the industry as predicted in March, but the coming months will bring more uncertainty for firms and the broader economy as Paycheck Protection Program loans run out and coronavirus cases continue to rise in the United States.

The PPP, intended to cover salaries for up to two and a half months, disbursed most of its funding in April. More than 1,500 law firms across the United States received PPP loans, and at least 47 firms in the Am Law 200 received loans totaling between $218 million and $445 million, according to data released by the Small Business Administration, which administers the program.

Nearly two months after most loans were disbursed, though, firm leaders and legal observers now say firms aren’t out of the woods yet.

“There’s still substantial uncertainty around the ‘second wave’ and the long-term economic impact,” said Sullivan & Worcester managing partner Joel Carpenter. “Supplemental unemployment is up at the end of the month. We’re cautiously optimistic, but we still don’t know where all this is going to take us.”

The loan, Carpenter said, allowed his firm to weather the pandemic’s initial impact without instituting broad layoffs. Instead, employees who made more than $66,000 per year saw a 5% reduction in salary, and partners also saw a double-digit reduction in their draws. The firm also furloughed fewer than 10 employees who were unable to do their jobs remotely.

While Sullivan & Worcester has brought back half of its furloughed staff, those jobs are tied to recent reopenings in New York. But some states, in response to the rising tide of coronavirus cases in June and July, have either paused or reversed their reopening plans.

On Wednesday, the Florida Department of Health announced 9,989 cases, bringing the state’s total number of confirmed cases to 223,783. Florida’s highest single-day total was recorded July 4, with 11,458 cases. Miami-Dade Mayor Carlos Giménez responded by reinstating bans on indoor dining and closing the beaches, among other steps.

Texas, Arizona, California and South Carolina are among other large states seeing upticks in cases, and U.S. industries continue to be hammered by the pandemic months after the virus first started appearing in the country: United Airlines announced Wednesday that it may furlough up to 40% of its staff, around 36,000 workers, Oct. 1, even after receiving much of the $25 billion in passenger airline stimulus funding allotted by Congress in March.

“The problem is that [PPP] is a short-term fix,” said Paul Hastings partner Christopher Austin, who advises on PPP applications. “Anytime you can get funds in the door in a time of uncertainty, it gives the people more opportunities to get people employed. Whether or not that will last will depend on how people are doing now.”

As with United Airlines, several firms that received PPP stimulus loans have announced pay cuts and furloughs. Hughes Hubbard & Reed laid off an undisclosed number of attorneys and staff Tuesday, despite receiving a loan between $5 million and $10 million.

In a statement to Law.com, the firm said Tuesday that while the PPP loan helped “to save jobs during the worst of the crisis,” the “deep impact of court closures and a slowdown in deal activity” three months after the pandemic first began forced its hand.

A few firms that did not draw down PPP loans also announced austerity measures in June. New York’s Fried, Frank, Harris, Shriver & Jacobson—which had a standout 2019—said it would offer buyouts to staff. Denver-based Holland & Hart announced broad pay cuts for both partners and staff.

And while layoffs and cuts are discouraged for those receiving PPP funds by being linked to loan forgiveness, there’s nothing that would stop a firm from laying off employees after the money is spent and its loan forgiveness has been approved.

Gretta Rusanow, head of advisory services for the Citi Law Firm Group, said that among the 60 firms she collects data and projections from, roughly two-thirds are girding for projected median revenue declines of 5% in Q3. The firms, including almost half of the Am Law 100 and several firms in the Am Law 200, also projected a median 5% drop in demand and a median 5% lengthening of collections.

Rusanow added that firms have been initially pessimistic in their projections amid the pandemic: When asked to project demand for Q2 at the beginning of the quarter, a similar sample of law firms estimated a median demand drop of 15%. But by June, the firms moderated their projections to just 7%. Revenues among the group saw a median Q2 decline of 1%, although Rusanow notes that results varied greatly.

“What I’ve seen from this sample is that Q2 was better than expected, and firms went into the months very concerned,” Rusanow said. “Going into Q3 there is an anticipated drop in revenue, but we may as well see a moderation as we go into the quarter.”

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

July 9, 2020 at 04:03PM

Fired SDNY U.S. Attorney: Barr Told Me to Resign or Else Ruin My ‘Future Job Prospects’

WASHINGTON, DC - JUNE 15: U.S. Attorney General William Barr speaks during a roundtable on “Fighting for America’s Seniors” at the Cabinet Room of the White House June 15, 2020 in Washington, DC. President Trump participated in the roundtable to discuss the administration’s efforts to “safeguard America's senior citizens from COVID-19.

Ousted former U.S. Attorney for the Southern District of New York (SDNY) Geoffrey Berman testified before Congress on Thursday about how Attorney General Bill Barr went about orchestrating his firing. Berman described what, to some, sounded like a thinly veiled threat.

“The Attorney General said that if I did not resign from my position I would be fired,” Berman told the House Judiciary Committee in his opening statement. “He added that getting fired from my job would not be good for my resume or future job prospects. I told him that while I did not want to get fired, I would not resign.”

Legal experts were appalled at the description of the pressure brought to bear on the onetime SDNY head.

Civil Rights lawyer Sasha Samberg-Champion, who previously worked in the U.S. Department of Justice (DOJ) said that he didn’t “see anything subtle about” Barr’s threat to Berman.

“It’s a clear threat to fire Berman (as eventually happened),” Samberg-Champion told Law&Crime in an email. “With respect to Berman’s resume and job prospects, I read this more as a prediction (and a bad one, frankly) rather than a threat.”

National security and federal employment attorney Bradley P. Moss also criticized Barr for leaning on the once-powerful prosecutor.

“Although it is plausible AG Barr’s comments were meant to be construed in traditional Beltway parlance, it is difficult given the circumstances to rule out the likelihood they contained an implied ‘nice career, be a shame if anything happened to it’ threat,” Moss told Law&Crime. “It remains unclear what exactly was the big rush to push out Berman, and that reality is what is driving so much of the concern about the Attorney General’s motives and actions.”

The SDNY chief’s departure was unannounced unceremoniously on June 19 when Barr issued a false press release claiming Berman had submitted his resignation. But that was actually not the case at all.

Rather, Barr had apparently grown frustrated after his efforts to secure Berman’s resignation proved unsuccessful and he attempted to force the issue–hoping that Berman would simply walk away from leading the nation’s premier U.S. Attorney’s Office. He did not do so.

Instead of a quiet departure, Berman, a court-appointed U.S. Attorney, raised a ruckus and defiantly saying that Barr didn’t have the authority to fire him. He also said he would remain in his position until “a presidentially appointed nominee is confirmed by the Senate.” President Donald Trump fired Berman the next day.

The blaring headlines and intrigue immediately elicited congressional attention–resulting in one of the fastest oversight turnarounds for the typically trepidatious and often supine 116th Congress.

The forced out attorney’s testimony also implicated Barr in what amounts to bog standard beltway influence-peddling.

“The Attorney General pressed me to take the Civil Division position, saying that the role would be a good resume builder,” Berman told the committee. “He said that I should want to create a book of business once I returned to the private sector, which that role would help achieve. He also stated that I would just have to sit there for five months and see who won the election before deciding what came next for me.”

Samberg-Champion was floored by this account of the 77th and 85th attorney general’s actions.

“While the revolving door between business and government is always potentially problematic, you rarely see government officials describe the monetization of government service in such crass terms,” he said. “As a former DOJ lawyer, I was really taken aback by this.”

[image via Doug Mills-Pool/Getty Images]

via Law & Crime https://lawandcrime.com

July 9, 2020 at 05:20PM

How ICE Exported the Coronavirus

Video – How ICE Exported the Coronavirus

This video was produced in collaboration with The New York Times.

Admild, an undocumented immigrant from Haiti, was feeling sick as he approached the deportation plane that was going to take him back to the country he had fled in fear. Two weeks before that day in May, while being held at an Immigration and Customs Enforcement detention facility in Louisiana, he had tested positive for the coronavirus — and he was still showing symptoms.

He disclosed his condition to an ICE official at the airport, who sent him to a nurse.

“She just gave me Tylenol,” said Admild, who feared reprisals if his last name was published. Not long after, he was back on the plane before landing in Port-au-Prince, one of more than 40,000 immigrants deported from the United States since March, according to ICE records.

Even as lockdowns and other measures have been taken around the world to prevent the spread of the coronavirus, ICE has continued to detain people, move them from state to state and deport them.

An investigation by The New York Times in collaboration with The Marshall Project reveals how unsafe conditions and scattershot testing helped turn ICE into a domestic and global spreader of the virus — and how pressure from the Trump administration led countries to take in sick deportees.

We spoke to more than 30 immigrant detainees who described cramped and unsanitary detention centers where social distancing was near impossible and protective gear almost nonexistent. “It was like a time bomb,” said Yudanys, a Cuban immigrant held in Louisiana.

At least four deportees interviewed by The Times, from India, Haiti, Guatemala and El Salvador, tested positive for the virus shortly after arriving from the United States.

So far, ICE has confirmed at least 3,000 coronavirus-positive detainees in its detention centers, though testing has been limited.

We tracked over 750 domestic ICE flights since March, carrying thousands of detainees to different centers, including some who said they were sick. Kanate, a refugee from Kyrgyzstan, was moved from the Pike County Correctional Facility in Pennsylvania to the Prairieland Detention Facility in Texas despite showing Covid-19 symptoms. He was confirmed to have the virus just a few days later.

“I was panicking,” he said. “I thought that I will die here in this prison.”

We also tracked over 200 deportation flights carrying migrants, some of them ill with coronavirus, to other countries from March through June. Under pressure from the Trump administration and with promises of humanitarian aid, some countries have fully cooperated with deportations.

El Salvador and Honduras have accepted more than 6,000 deportees since March. In April, President Trump praised the presidents of both countries for their cooperation and said he would send ventilators to help treat the sickest of their coronavirus patients.

So far, the governments of 11 countries have confirmed that deportees returned home with Covid-19.

When asked about the agency’s role in spreading the virus by moving and deporting sick detainees, ICE said it took precautions and followed guidelines of the Centers for Disease Control and Prevention. As of last week, ICE said that it was still able to test only a sampling of immigrants before sending them home. Yet deportation flights continue.

Emily Kassie and Barbara Marcolini

Dmitriy Khavin

Drew Jordan

Malachy Browne

Dahlia Kozlowsky

Andrew Cagle and Bron Moyi

Masha Froliak
Abdul Saboor Khaliq
Pierre-Antoine Louis
Priya Arora

Jonah Kessel

Mark Scheffler

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July 10, 2020 at 05:02AM

Study Finds ‘Persistent’ Racial Bias in Police Traffic Stops and Searches

Police decisions to stop and search motorists are affected by “persistent racial bias,” according to a study published in the Nature Human Behaviour journal.

The authors of the study constructed a national dataset of approximately 95 million traffic stops conducted by 21 state patrol agencies and 35 municipal police departments between 2011 and 2018. The data showed that comparatively fewer Black drivers were stopped after sunset—when it’s assumed to be difficult for police officers to identify motorists by race.

“If Black drivers comprise a smaller share of stopped drivers when it is dark and accordingly difficult to determine a driver’s race, that suggests Black drivers were stopped during daylight hours in part because of their race,” the authors said.

Moreover, after being stopped, Black and Latinx drivers were searched on the basis of less evidence than their white counterparts, the study found. This was the case for searches carried out by both state patrol agencies and municipal police departments, according to the article.

The authors argued that their findings suggest “decisions about whom to stop and, subsequently, whom to search are biased against Black and Hispanic drivers.”

The authors also studied the effects of drug policies on racial disparities in traffic stops.

The legalization of recreational marijuana lowered the number of searches of white, Black, and Hispanic drivers; however, the evidentiary standard for searching minority drivers remained lower than that for white drivers, the study found.

This led the authors to conclude that the problem of racial disparities in traffic stops is solvable: the legalization of recreational marijuana is one of many policy interventions that could reduce such bias.

Although the study’s results stem from a comprehensive study of traffic stops, “they only partially capture the wider impacts of law enforcement on communities of color,” warned the study’s authors.

The authors explained: “If, for example, officers disproportionately patrol Black and Hispanic neighborhoods, the downstream effects can be injurious even if individual stop decisions are not directly affected by the color of one’s skin. Similarly, enforcement of minor traffic violations, like broken tail lights – even if conducted uniformly and without animus – can place heavy burdens on Black and Hispanic drivers without improving public safety.”

More research, data collection, and data analysis is needed in these areas, wrote the authors.

The study’s authors were Emma Pierson, Ph.D., assistant professor at Cornell Tech; Camelia Simoiu, Ph.D. candidate at Stanford University; Jan Overgoor, Ph.D. candidate at Stanford University; Sam Corbett-Davies, Ph.D. candidate at Stanford University; Daniel Jenson, engineering student at Stanford University; and Amy Shoemaker, data scientist at the Stanford Computational Policy Lab.

Other authors were Vignesh Ramachandran, producer at ProPublica Illinois; Phoebe Barghouty, data journalist at the Stanford Open Policing Project; Cheryl Phillips, professor at Stanford University; Ravi Shroff, assistant professor at New York University; and Sharad Goel, assistant professor at Stanford University.

Additional information about the study’s methodology can be found here.

The full study can be accessed here.

Michael Gelb is a TCR News Intern.

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July 9, 2020 at 10:33AM

Innocence Project Calls for Policy Reforms in Wake of Landmark Report on 25 Wrongful Convictions in Brooklyn

Today, the Kings County District Attorney’s Office released a landmark report examining how and why the KCDA’s Conviction Review Unit (CRU) in Brooklyn, New York, agreed to exonerate 25 wrongly convicted people in a five-year period (between 2014-2019).

These 25 wrongly convicted persons served a staggering 426 years in prison before their exonerations. And virtually all of them — 24 out of 25 — were Black and/or Latinx. They served an average of over 17 years in prison; the one white exoneree, a victim of a politically motivated election fraud prosecution, served no prison time. The report also finds that the evidence police gathered against many of these exonerees was clearly flawed from the outset — raising obvious questions about why so many Brooklyn citizens of color were prosecuted at all, and why none of the system’s actors stepped in to halt these prosecutions or rectify them for decades.

The report forthrightly addresses the grievous errors – including outright misconduct in a number of cases — by both police and prosecutors that tainted the vast majority of these cases. We know that, for many reasons, retrospective investigations of official misconduct will always yield an undercount. For example, evidence supporting a claim of innocence that is intentionally suppressed by law enforcement is designed to stay hidden — and often does. But those limitations make the errors and misconduct that were found by the CRU all the more undeniable. For example, the reinvestigations by the KCDA’s own CRU staff revealed that:

  • Misconduct and/or serious error by prosecutors was the most common factor in these wrongful convictions, occurring in at least 84% of the 25 cases.
  • “Police conduct” was the next most common factor and was present in 72% of the exonerees’ cases.
  • Failure to disclose favorable evidence to the defense — by prosecutors, police, or both — was a factor in 40% of these exonerees’ cases. (This factor was independent of — and/or in addition to — other police and prosecutorial conduct cited by the CRU.)
  • False or unreliable confessions were used to wrongly convict over one-third (36%) of these 25 exonerees, and in many cases was the only direct evidence against them.
  • Eyewitness Misidentification was a contributing factor in the wrongful convictions of one-fifth (20%) of the 25 exonerated people.

The KCDA, the Innocence Project, and the law firm of WilmerHale co-authored the report, and the Innocence Project designed the research tool that was used to gather and analyze the data.

Many prosecutors around the nation have formed “conviction review” or “conviction integrity” units in recent years. These are specialized, independent units whose sole focus is to reexamine and reinvestigate claims of wrongful conviction. But today’s report constitutes the first public examination ever commissioned by any elected prosecutor in the United States of the reasons why its own office made the decision to throw out more than two dozen deeply flawed convictions in its own county. It is also the first time an elected district attorney has ever allowed outside researchers — much less staff from an innocence organization — to analyze documents from its own files regarding that process.

The result is a groundbreaking report that, for the first time, provides a window into how and why one prosecutor’s office came to acknowledge the injustices earlier perpetrated in its own county against so many of its own citizens.

The report is necessarily limited by its exclusive focus on the CRU’s own investigations and conclusions. The CRU’s conclusions reflect its own view of these cases, based on the evidence it had available and/or considered significant at the time. We recognize that many of these wrongly convicted persons and their advocates may have very different perspectives on why they were sent to prison for crimes they did not commit, and that key facts about these cases and the officials involved may not be included here.

However, there are still profound takeaways from this report for all who seek to fix our broken criminal legal system, particularly since it constitutes the district attorney’s own acknowledgment of what went grievously wrong in these cases and its devastating human toll.

While there have been some gains in reforming the criminal justice system in New York State to prevent future miscarriages of justice like these, the report provides a good roadmap for modifications to existing reforms and the need to promote new changes to the criminal justice system through law and policy. These include:

  • Banning Police Deception/Assessing Reliability of Confession Evidence. Addressing the legally permitted use of deception by law enforcement in the interrogation room and assessing the reliability of confession evidence before it is introduced. New York State Senator Zellnor Myrie, also from Brooklyn, has introduced SB6806, which would prohibit law enforcement’s use of “false facts” during interrogations and assure that when judges assess the voluntariness of a confession, they also assess its reliability before allowing it to be used in court.
  • Rejecting Repeated Presentations of the Same Person When Witnesses are Asked to Identify a Suspect /Requiring Witnesses to Rate How Confident They are When an Identification is Made. In several cases, the same suspect was presented to the eyewitness in more than one identification procedure, such as a view in a mug book, a show-up, or one-on-one identification procedure, or a photographic or live lineup with multiple potential suspects. This has been shown to increase the possibility of a misidentification of an innocent person because of what is known as “commitment effect” or misplaced familiarity. Multiple identification procedures of the same suspect should never be permitted during the course of an investigation.
  • The level of confidence an eyewitness expressed at the time of an identification is critically important to capture. The level of confidence an eyewitness might initially describe at the time he or she identifies someone as the perpetrator of a crime can be artificially inflated through any sort of confirming feedback, so that by the time the eyewitness takes the witness stand, he or she is 100% confident in the identification she/he has made. All police agencies should implement the policy of taking an immediate confidence statement — where the witness is asked in his or her own words how certain they are of the identification they have made — at the time when an identification is first made. While versions of these reforms are included in an advisory policy in New York State, they should be mandated and uniformly adopted across the State. Also, given the lack of evidentiary value offered by an in-court identification, they should no longer be permitted.
  • Assuring Police and Prosecutorial Accountability. New York recently repealed Civil Rights Law 50-a, which had shielded police misconduct records from the public. Now that this law has passed, police agencies should readily provide this information to the public, without requiring Freedom of Information Law requests, and immediate action should be taken to remove law enforcement with histories of perjury and excessive force from police agencies. New York should also finally allow the nation’s first-ever Commission on Prosecutorial Conduct to begin its important work; the independent commission was enacted into law in 2019 but has been ensnared in court challenges which will require either judicial resolution or legislative action to resolve.
  • Prosecutors’ offices should better assess the integrity of the evidence they may use in a criminal case. The report’s authors noted that many of the 25 wrongful conviction cases might not have moved forward had trial prosecutors and their supervisors more thoroughly assessed the reliability of the evidence presented to them by law enforcement — including eyewitness accounts, confessions, informant claims, and forensic evidence. For example, the report cites numerous cases where a “confession” or an informant’s statement simply did not fit the physical evidence or failed to comport with eyewitness accounts of the crime. While each of these cases represent a systemic breakdown at every step of the process, many red flags became apparent in the review of these cases that should have been heeded, and opportunities to prevent the cases from becoming wrongful convictions were missed.

The Innocence Project commends District Attorney Eric Gonzalez for making these detailed findings public, and for the report’s forthright acknowledgment that “[t]he wrongful convictions discussed here all point to failures of prosecution as an institution — whether through the acts of individual prosecutors, collective decisions, or failure to train or guide prosecutors adequately.” We look forward to working with policymakers and exoneree advocates to meaningfully redress the systemic failures cited in the report and prevent future wrongful convictions.

The post Innocence Project Calls for Policy Reforms in Wake of Landmark Report on 25 Wrongful Convictions in Brooklyn appeared first on Innocence Project.

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July 9, 2020 at 10:41AM

Now Is The Time: Tell Congress to Ban Federal Use of Face Recognition

Cities and states across the country have banned government use of face surveillance technology, and many more are weighing proposals to do so. From Boston to San Francisco, elected officials and activists rightfully know that face surveillance gives police the power to track us wherever we go, turns us all into perpetual suspects, increases the likelihood of being falsely arrested, and chills people’s willingness to participate in First Amendment protected activities.

That’s why we’re asking you to contact your elected officials and tell them to co-sponsor and vote yes on the Facial Recognition and Biometric Technology Moratorium Act of 2020.

Take action

TELL congress: END federal use of face surveillance

Three companies—IBM, Amazon, and Microsofthave recently ended or suspended sales of face recognition to police departments, acknowledging the harms that this technology causes. Police and other government use of this technology cannot be responsibly regulated. Face surveillance in the hands of the government is a fundamentally harmful technology. Congress, states, and cities should take this momentary reprieve, during which police will not be able to acquire new face surveillance technology from these companies, as an opportunity to ban government use of the technology once and for all.

Face surveillance disproportionately hurts vulnerable communities. Recently the New York Times published a long piece on the case of Robert Julian-Borchak Williams, who was arrested by Detroit police after face recognition technology wrongly identified him as a suspect in a theft case.  The ACLU filed a complaint on his behalf with the Detroit police. The problem isn’t just that studies have found face recognition highly inaccurate when it comes to matching the faces of people of color. The larger concern is that law enforcement will use this invasive and dangerous technology, as it unfortunately uses all such tools, to disparately surveil people of color.

This federal ban on face surveillance would apply to opaque and increasingly powerful agencies like Immigration and Customs Enforcement, the Drug Enforcement Administration, the Federal Bureau of Investigation, and Customs and Border Patrol. The bill would ensure that these agencies cannot use this invasive technology to track, identify, and misidentify millions of people.

Tell your senators and representatives they must co-sponsor and pass the Facial Recognition and Biometric Technology Moratorium Act of 2020, introduced by Senators Markey and Markley and Representatives Ayanna Pressley, Pramila Jayapal, Rashda Talib, and Yvette Clarke. This bill would be a critical step to ensuring that mass surveillance systems don’t use your face to track, identify, or incriminate you. The bill would ban the use of face surveillance by the federal government, as well as withhold certain federal funding streams from local and state governments that use the technology.  That’s why we’re asking you to insist your elected officials co-sponsor and vote “Yes” on the Facial Recognition and Biometric Technology Moratorium Act of 2020, S.4084 in the Senate.

Take action

TELL congress: END federal use of face surveillance

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June 29, 2020 at 06:37PM

The Robot in the Courtroom

Could the robot driving your car become a witness against you?

The growing sophistication of artificial intelligence (AI) tools makes it likely that such tools will increasingly be used in criminal trials—but they also pose new challenges in determining the reliability of “machine-evidence,” according to a paper published in the Georgetown Journal of International Law.  

Sabine Gless, the author of the paper and a professor at the University of Basel School of Law in Switzerland, argues that the fact-finding required to assess guilt or innocence in a trial is complicated when the source of the evidence is a machine that cannot be cross-examined.

Assumptions that evidence produced by such machines—or “machine evidence” —is objective or neutral may not necessarily be correct, she warns.

“As AI becomes more ubiquitous, and if such technology is deemed to be an accurate assessment of human conduct, more people may be willing to accept it as a reliable and trustworthy source of information,” Gless wrote.

“Despite this possibility, it remains unclear if and how such information would —be admitted into a court of law.”

Gless proposed a “hybrid” approach that borrows from both the “adversarial” legal system used in the U.S. and the “inquisitorial” system used in European countries such as Germany to address the complicated challenges presented by digital data collected from “non-human” sources.

She used the example of a traffic accident involving cars that are jointly controlled by a human and a robot. The car’s computer system is programmed to take control when the motorist consents, while closely monitoring both the car and driver.  It records a driver’s reaction speed, and it can alert her if the vehicle is dangerously close to other vehicles or if she is falling sleep.

“As this technology progresses, humans will increasingly be sharing the wheel with so-called ‘driving assistants,’ or software bots that support the human driver’s performance and assist or even take over driving in specific situations,” she wrote.

“In the case of the latter, it is unclear, however, who will be seen as the driver at any given moment, and this has significant consequences for liability.”

If the motorist fails to heed the robot’s advice and crashes into another car, can she be held liable? Or if the robotic system itself fails, who is to blame?

These questions could confound the traditional way courtrooms present and assess evidence, even as robotic systems become more dependable and prevalent, Gless wrote.

One positive trait of AI testimony, the article argues, is objectiveness, since machines have no emotional stake in the outcome of a case and thus cannot be guilty of perjury.

Nevertheless, Gless warned, AI “is not infallible,” and the evidence it provides needs human input to check for gaps or glitches.

“One must first acknowledge that robots and software bots—i.e., stand-alone machines or programs that interact with users of a consumer product—are different from forensic instruments like breathalyzers, DNA testing kits, or radar speed guns,” Gless wrote.

Cross-examining a Machine

How do you check whether a machine is providing an accurate account?

Despite their ability to collect vast amounts of data, AI-driven devices cannot explain for themselves how they evaluate human conduct or reach a decision. Therefore, law enforcement and the courts must be cautious about what they learn from machine-generated data, Gless wrote.

“AI-driven devices cannot undergo the equivalent of cross-examination even where they are evaluating human users and coming to a conclusion, like whether or not a driver has the capacity to operate a vehicle,” she wrote.

The only possible way to allow machine evidence to be used in the courtroom is by making it possible for attorneys to scrutinize how the machine works, through interrogating its “design, algorithms, and machine learning/training data.”

Proposing what she said were “significant changes” to both systems in anticipation of courts across the world being faced with evidence generated by AI, she argued for a “hybrid” approach that draws from both adversarial and inquisitive legal systems.

It would involve a judge assessing the validity of evidence recorded outside the courtroom, while allowing lawyers for the defense and prosecution to incorporate expert analysis of the data to assess guilt or innocence.

According to Gless, the kinds of machine evidence that could be used in trials was expanding as technology continued to improve. Facial recognition technology, for example, which purports to detect a person’s mental state or predict behavior could someday be introduced in court to establish motivation for a crime.

“Now is the time to prepare for fact-finding in ambient intelligent environments,” she asserted.

“To do so, we first must understand the characteristics of the various types of machine evidence and work with qualified experts to both understand the technology and explain the underlying legal concepts.

“Regardless of whether AI becomes a new tool to convict or acquit, we must ensure trustworthiness in the fact-finding process where machine evidence is used in criminal proceedings. “

Download the complete paper here.

TCR News Intern Sara Rose George contributed to this summary.

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June 30, 2020 at 08:06AM