Showing posts with label Injustice. Show all posts
Showing posts with label Injustice. Show all posts

November 6, 2017

Warm Sands Sex Case Judge Would Not Touch An Envelope from Gay Man:U know where's been


{There is "homophobic" and there is "rabidly anti gay" This judge was the latter, surrounded by cops who belonged to the same club}
Judge  David B. Downing is an Anti gay Judge who ruled on gay defendants
An Indio judge who upheld charges in the Warm Sands sex sting case six years ago despite strong evidence that Palm Springs police discriminated against gay men is now accused of making an alarmingly homophobic statement while being secretly recorded in another case.

Riverside County Superior Court Judge David B. Downing, who is now retired, allegedly said he would not touch the motions of a gay, HIV-positive murder suspect because they came in envelopes that had been licked closed.

“Lord knows where his tongue has been,” Downing said, according to sworn declarations by convicted murderer Kaushal Niroula and his co-defendant Daniel Garcia, the latter of whom made secret recordings of Downing in 2012.

Those recordings, first reported by The Desert Sun this week, now threaten to undo Niroula’s conviction, potentially leading to new trials in the murder case. The recordings also casts a shadow over the Warm Sands prosecution, Downing’s highest-profile case, which involved more than a dozen gay defendants, three gay attorneys and allegations of systematic police discrimination against gay men. 

In the Warm Sands case, defense attorneys presented evidence that Palm Springs police officers had exclusively targeted gay men in an undercover 2009 public sex sting. Police leaders were also caught on tape using slurs and calling the suspects “filthy,” and defense attorneys eventually proved that the police department had never arrested a straight person for the same behavior. 
Regardless, Downing ruled that the case wasn’t discriminatory, allowing prosecution to continue.

“I was always perplexed, because the hearing went so well, I thought he would rule in our favor,” said attorney Bruce Nickerson, an expert on lewd conduct law who worked on the Warm Sands case. “But he didn’t. I was never sure why. Now, I think it’s clear.”

Nickerson was one of three Warm Sands attorneys who spoke to The Desert Sun over the past week, reacting to how the secret recordings from Niroula’s trial reflected on the sex sting case. Each attorney expressed mixed feelings about the judge – who they recalled as outwardly professional, fair and open-minded – but said they remained puzzled by his decision to uphold the Warm Sands charges.

“I was certainly baffled by the ruling. I still am,” said defense attorney Joe Rhea. “I thought it was just a bang-up motion, and there was never a clear reason for denying it.”

A little more than a year after the Warm Sands decision, Downing allegedly made his “tongue” comment behind closed doors. The statement was captured by a laptop that one of the murder suspects had left recording in the courtroom even when the case was on a break. Official court transcripts show that the murder suspects later confronted Downing with the recordings, at which point he defended the statements and never denied them. When reached by The Desert Sun earlier this month, Downing said he could not remember if he made the “tongue” comment or not.

If he did say it, the comments are undoubtedly offensive, said Mark Foster, a retired defense attorney who also worked the Warm Sands case. Even more worrisome was the idea that any judge would not read a defendant’s motion, regardless of reason, Foster said.

The comment was so wholly terrible, Foster said, he had to believe Downing just made “a bad joke.”

“I was openly gay in the courtroom, and he treated me fairly,” Foster said. “But I don’t know what darkness lurks in men’s hearts… He might be a raging homophobe, he might not have a homophobic bone in his body. I just don’t know.”

The sex sting occurred in June of 2009, when the Palm Springs Police Department decided to crack down on public sex in the Warm Sands neighborhood, a well-known gay hookup scene. For four nights, on a city block surrounded by gay resorts, undercover cops approached men on the street and encouraged them to expose their genitals. If they did, the men were arrested.

When the sting was over, 14 men – all gay – were charged with misdemeanor crimes. Prosecutors sought to add each of them to a sex offender registry

But the case quickly became a massive embarrassment for local law enforcement, drawing widespread criticism for what appeared to be blatant discrimination. Condemnation of the case grew in 2011, when defense attorneys revealed that Palm Springs police had never arrested any heterosexual couples for the same crimes, despite prior complaints of straight people having sex in public places.  

Video footage of the sting also exposed that one of the leaders of the operation, Sgt. Bryan Anderson, had used a gay slur while watching the sting from inside a police vehicle. Additionally, Police Chief David Dominguez resigned after it was revealed he referred to the gay men as “some filthy (expletives)” during the sting.

All of this was presented to Downing during an eight-day court hearing in February 2011. Defense attorneys never denied what their clients had done, but insisted they had been entrapped by a police department that had exclusively targeted homosexuals. Judge Downing ruled otherwise.

"These … men were not arrested for being gay,” he said from the bench, before upholding the charges and allowing prosecutions to continue. “These men were arrested for having sex in public.”

Four defendants later appealed this ruling, but the decision was upheld. To this day, defense attorneys insist that Downing missed the entire point of the discrimination argument – If the suspects had been straight, but done the same thing, they would have never been arrested in the first place.

“They were only punished because they were having gay sex,” Foster said. “That was the whole point. If they were males having sex with females, no one would have launched a sting operation. We established that in court.” 

Although Downing’s ruling kept the Warm Sands case alive, the hearing had been embarrassing enough that law enforcement lost their lust for harsh punishment. Prosecutors decided to offer lighter plea deals – without registry as a sex offender – and most of the defendants accepted. A majority pleaded guilty to misdemeanors and were sentenced to probation. A few have since returned to court and had their convictions reversed. One defendant is still arguing in court to have his whole case sealed.

“The Warms Sands case has changed Palm Springs,” Rhea said. “Law enforcement has acted very differently after this. I haven’t seen a coordinated sting like this since Warm Sands.” 'd die.

To date, only one Warm Sands defendant has had their case completely erased.

That defendant was represented by Nickerson, the lewd conduct law expert, who expressed both the strongest criticism and highest praise of Judge Downing. Two years after the Warm Sands decision, Nickerson came back to the judge’s courtroom seeking one of the most coveted rulings in criminal law.

Nickerson asked for his client to be issued a “finding of factual innocence,” which is a court document that says a defendant is actually innocent instead of just not guilty. Downing appeared as if he was going to deny the request, Nickerson said, but then the judge surprised him again.

The defendant’s innocence was confirmed, allowing him to get a job as a teacher.

If Downing was homophobic, he must have looked past his prejudice on that day, Nickerson said.

“It was heartwarming for me,” Nickerson said. “Whatever Downing may have thought of my client, he put it aside and ruled strictly on the law on that motion."

, The Desert Sun
Public Safety Reporter Brett Kelman can be reached at 760 778 4642 or at brett.kelman@desertsun.com. You can follow him on Twitter @TDSbrettkelman. 

April 25, 2017

J.Sessions Went Far out with NYC Comment, Now He sees the Parrots from the Pigeons






Attorney General Jeff Sessions went to a place he probably shouldn’t have gone, and after he received an overflowing bucket-load of clap back for it, he’s already trying to make it better.
On Friday, Sessions issued a letter to nine jurisdictions. He warned that any refusal to cooperate with (or hindering of) federal immigration officials would result in the loss of federal grant money. That wasn’t ground-breaking news to many of these cities, as the removal of grants has been mentioned by President Trump and Sessions in the past. What did upset New York City, however, was one line that has everyone noticed, from Morning Joe co-host Joe Scarborough to New York City mayor Bill de Blasio, who demanded an apology from the Attorney General, according to the New York Post
“New York continues to see gang murder after gang murder, the predictable consequence of the city’s ‘soft on crime’ stance.”
As you might have expected, Mayor de Blasio was not pleased with Sessions referring to his city or its police department as “soft,” and he let it be known that the falling crime rate in New York speaks for itself
“We did not become the safest big city in America by being … soft on crime … This is an insult. Look our police officers in the eye and tell them you believe they are soft on crime.”
Scarborough weighed in on the topic during his Monday morning show, saying Sessions should apologize. He wondered aloud if the new Attorney General has any real idea of what is going on in America’s biggest city:
“He needs to apologize to the NYPD rank and file. Has he ever been to New York City? I’m just curious. You don’t talk about the NYPD that way … it makes me mad.”
While Sessions hasn’t taken the step of apologizing for his “soft” comments just yet, he’s already back peddling away from them at a rate that could get him drafted as a first-round cornerback in this week’s NFL Draft. Speaking with ABC News, Sessions was suddenly in the mood to shower the NYPD with glowing praise:
“For four decades, New York has been a fabulous city for law enforcement,” Sessions told ABC’s “This Week.” “They have developed some of the best techniques ever. They are so far ahead of many other cities. I think we all should study the tactics that have been developed.”
If all the backtracking doesn’t make everyone forgive Sessions for this comments about the NYPD, he could always just say he was joking. That tactic didn’t work for Sessions last week when he defended how he referred to Hawaii as being “an island in the Pacific,” but maybe it will take here.

April 18, 2017

Federal Judge Resigns After Sentencing a Young Man to Life







No longer bound by ethics rules that keep judges silent, Sharp in an exclusive interview Saturday with The Tennessean denounced mandatory minimum sentences.
 
Kevin H. Sharp served as a federal judge in Nashville for 6 years. He was nominated by Barack Obama.
He'll work in private practice, handling employment and civil rights cases.
As a lawyer, he can be an advocate and said he hopes to level the playing field for minorities.
In an exclusive interview, he revealed he hopes to advocate for one man in particular: Chris Young.
 
Kevin H. Sharp sent Chris Young to prison for life and he thought it was wrong.

"Each defendant is supposed to be treated as an individual," Sharp said at the sentencing hearing in 2014. "I don't think that's happening here."

But there are duties that come with a black robe and gavel, chief among them following the laws of the United States no matter your personal opinion. And as a federal judge, Sharp had to impose mandatory minimum terms. That meant Young, a repeat drug offender, would never go home to Clarksville.

Young, now 28, is at a federal prison in Lexington, Kentucky.

Sharp, now 54, is starting a new job and still thinking of Young.

The former chief U.S. District judge in Middle Tennessee resigned his post Friday, ending a lifetime appointment after six years. On Monday, he'll begin work at Sanford Heisler, expanding the respected civil rights and employment law firm into Music City while also expanding its title: Sanford Heisler Sharp.

In an exclusive interview on Saturday, Sharp talked about his tenure on the bench and his decision to leave it. No longer bound by ethics rules that keep judges silent, he denounced mandatory minimum sentences and previewed the topics he'll attack at the civil rights firm.

Those coalesce with Young. Talking about the case brought tears to Sharp's eyes and emotion choked his speech.

"If there was any way I could have not given him life in prison I would have done it," he said. "What they did was wrong, they deserved some time in prison, but not life."

Read a transcript of the sentencing at the end of this story.

'What we do kind of defines who we are'

Some of Sharp's motivation to move jobs was rooted in his path to becoming a lawyer more than 20 years ago. The Memphis native held odd jobs after high school: as an airport baggage handler, at a car wash — and even carrying a baseball bat around a gas station making sure self-service customers paid.

"I’d go hey, you pay for that? I thought, this is not really a career."

He enlisted in U.S. Navy. He was stationed in Hawaii, Alaska, the Philippines, Japan and Thailand. Despite the cultural differences, there was a common thread.

“I realized that, what we do kind of defines who we are," he said. "People meet me and they go, 'Nice to meet you Kevin, what do you do?'

"All this stuff gets layered on there. They make stereotypical decisions about who you are and what you’re like."

Whether those assumptions are right or wrong, Sharp said he grew to believe that a person's opportunity to work needed to be protected, which attracted him to employment law.

"African Americans, women, ethnic minorities, religious minorities don’t have the same opportunities," he said. “That to me is something that’s important, making sure the playing field gets leveled.” 

Money$ Makes the World go around $

Sharp went to Vanderbilt Law School and then into private practice. President Barack Obama nominated him for the Nashville judgeship six years  ago.

Work on the bench was intellectually challenging, and fun, he said. But Sharp saw that cases presenting significant issues came along unpredictably, and he couldn't choose the issues. One example: The legal challenge to a private probation company in Rutherford County, in which several probationers said they were being punished because they couldn't pay. In one hearing, Rutherford County General Sessions Judge Ben McFarlin Jr. testified.

"Money makes the world go 'round," McFarlin testified.

"I thought, Oh my God, no," Sharp recalled his reaction in court that day. "Money is not what makes the justice system go round.

"That’s not just morally wrong, it’s illegal. It’s unconstitutional.” 

But in other high-profile cases his hands were tied by the law, and rulings countered what Sharp personally believed. He named specifically a case brought by a family against Nashville schools alleging discrimination in the district's rezoning plan. In 2012, Sharp ruled that although the effect of the district policy was segregation, the plaintiff did not prove the intent was discrimination.

"The proof wasn’t there and the law wasn’t on their side," he said. "If I was director of schools, I’d go, scrap this."

"As a lawyer I can be more proactive," he said. "I can say things I want to say. I can take cases I want to take. I can advocate for positions that I want to advocate for — as opposed to waiting as a judge, do I get that case or not?"

A sticking point during Sharp's time on the bench were criminal cases, colloquially known as "drugs and guns" cases, that required mandatory minimum sentences.

"The drugs-and-guns cases, you say it like that and it sounds like they’re all dangerous," he said. "Most of them are not. They’re just kids who lack any opportunities and any supervision, lack education and have ended up doing what appears to be at the time the path of least resistance to make a living."

'Maybe somebody can fix this'

Young's was a drugs-and-guns case. He was charged in December 2010, one of 32 people — some of them gang members — who federal prosecutors said were involved in drug trafficking in Clarksville. Court documents say federal agents believed Young was buying crack cocaine from a leader of the ring at a gas station. He was charged with conspiracy to distribute cocaine and crack cocaine and other counts.

Young had two prior drug-dealing convictions, and his new charges triggered a provision of federal law requiring a mandatory life term if found guilty. Young and two others went to trial in August 2013 and were found guilty. About a year later, Sharp sentenced Young to life in prison.

At the hearing, Young described his upbringing: His mother was a drug addict, he said, and at times their house had no lights nor water. When he was old enough to get a job, he worked at a funeral home, but he felt a growing divide between himself and others in his neighborhood who dealt drugs, pulling him that way.

Hallie McFadden, a lawyer who defended Young, said each time she saw Sharp after the sentencing he asked about Young.

"I'm heartsick to see him go," she said of Sharp, "especially with the prospect of someone far less caring taking the seat."

Jim Thomas, a Nashville lawyer who later represented Young during his appeals and has had other cases in Sharp's courtroom, said Sharp was a "very capable and fair minded judge." That was exemplified in Sharp's words at Young's sentencing, according to Thomas.

"Maybe somebody can fix this," Sharp told Young.

Maybe that somebody is Sharp.

Sharp says he will work to get Young's sentence commuted, meaning Young would be released from prison. It could take years, leaving Young behind bars for a decade.

This story is coming from
Federal judge forced to sentence defendant to life because of mandatory minimums is stepping down and speaking out

November 18, 2016

Fed Court Blocks Release of Brendan Dassey





A federal appeals court ruled Thursday that a Wisconsin man whose case was chronicled in the true crime docuseries "Making a Murderer" must remain in prison — even after his murder conviction was overturned this summer. 


Brendan Dassey's release from prison was blocked Thursday afternoon by the United States Court of Appeals for the Seventh Circuit while prosecutors appeal the decision to overturn his conviction. 
Dassey, 27, was sentenced to life in prison in 2007 for the rape and murder of 25-year-old photographer Teresa Halbach in Manitowoc County, Wisconsin. A 16-year-old at the time of that 2005 murder, Dassey was accused of helping his uncle, Steven Avery, in the killing. Avery was tried separately and also sentenced to life in prison. He is appealing his case. 
Dassey's conviction was overturned in August after a judge ruled that prosecutors had coerced the teen into confessing that he had helped his uncle kill Halbach. 
U.S. Magistrate Judge William Duffin wrote at the time that investigators made repeated claims to Dassey that they already knew what occurred the night of the murder and falsely promised him that he had nothing to worry about.  The Wisconsin Justice Department then filed an emergency motion with the United States Court of Appeals for the Seventh Circuit to block his release. 
A three-judge panel from the appeals court ruled Thursday to keep Dassey behind bars.


November 14, 2016

“Making a Murderer” Sees Light Outside of Jail





On Monday, a judge ordered that Dassey be released immediately while an appeal is pending that seeks to keep him behind bars. Though he'll be freed from prison, the ruling comes with a number of stipulations: Dassey can only travel within the district of Wisconsin's Eastern court, he can't get a passport, and he's not allowed to possess a gun or any controlled substance. He's also been ordered not to have any contact with his uncle, Making a Murderer subject Steven Avery, or the family of Teresa Halbach, the woman he was convicted of helping to kill.
 
In August, a federal judge made the ruling that Dassey's confession to helping his uncle with the crime was coerced by police. Dassey, who was 16 years old at the time, can be seen on tape recordings on the Netflix series being promised by police that "you don't have to worry about things" and things would be "OK" if he told them about the murder, which the judge says constitutes an unfair promise of leniency.

Wisconsin's attorney general has since appealed the judge's ruling and seeks to overturn it and keep Dassey in prison, where he's been for more than a decade. He says that Dassey voluntarily answered police questions after being informed of his rights and that he supplied details about the murder in response to open-ended questions, which isn't what the documentary shows.

As the appeal works its way through the courts, Dassey has remained in prison, despite his conviction being overturned.


November 1, 2016

A Top Cop and Prosecutor Too





Beyond the precedent that the Justice Department, particularly the FBI, bends over backward not to interfere in a presidential election, there is yet another precedent, this one established during the Monica Lewinsky investigation: A holder of high office, under pressure from both Congress and the press, can lose his mind. The mind in question belonged to Kenneth Starr, the independent counsel, who back in the winter of 1997 signaled he had had more than enough of Bill Clinton, sex that wasn’t sex, a dress no longer suitable for a casual date, and other such matters and was quitting. He would repair to Pepperdine University, about as far from Washington as is continentally possible, and become dean of its law school. Then all hell broke loose.

Republican members of Congress denounced Starr for cutting and running. Sen. Arlen Specter (R-Pa.), a member of the all-important Judiciary Committee, asked Starr to reconsider. William Safire, then the biggest gun on the New York Times’s op-ed page, was less judicious. His column was titled “The Big Flinch.” He called Starr a wimp who had brought “shame on the legal profession” — as if such a thing were possible. It seemed it was, and Starr retracted his resignation, stayed in Washington, hounded Clinton into impeachment and, in general, soiled a promising legal career that once had him on some shortlists for the Supreme Court.

I tell you this sad tale of opportunity missed just to illustrate how political pressure and the braying of the media can addle the minds of otherwise smart people. This is what happened to Ken Starr, and it seems to have happened to James B. Comey, the director of the FBI, although maybe not for much longer. Twice now, he has lost his bearings, stepped out of his role as top cop and decided he was prosecutor instead. In July, he announced that the FBI had concluded its investigation into the Hillary Clinton email server and found nothing worth prosecuting. He did find that her handling of her emails had been “extremely careless,” which was true, but was the sort of judgment that pundits like me get to make, not lofty FBI directors whose personal — even professional — opinions should be saved for their memoirs.

For recommending against indictment, Comey was vilified by the right, particularly by Donald Trump. Others had a different criticism: Comey should have said nothing at all. The decision to prosecute is made by the Justice Department, not the FBI, and it was not his place to chastise Clinton, who, if I may be permitted an observation, certainly deserved it. Now Comey has announced that the investigation that seemed closed remains open. He announced this less than two weeks before Election Day, virtually reviving a dormant Trump campaign. “Bigger than Watergate,” Trump observed.

What’s going on? We don’t know. An astounding 650,000 emails were found by the FBI on the laptop belonging to Anthony Weiner, the now-estranged (and always strange) husband of Huma Abedin, Clinton’s No. 1 aide. This could be a device that Weiner allegedly used to send filthy pictures of himself to women both young and old, one purportedly a mere 15. It’s possible the emails are duplicates of what the FBI has already seen on Clinton’s private server or — G-men beware — maybe half a million Weiner selfies. (You cannot out-weird this story.)

From the very start, I’ve felt that this whole business of Clinton’s email server has been ridiculously hyped. She shouldn’t have done it. Granted. She’s hiding something. Granted. She’s even hiding that she’s hiding something. But she didn’t commit treason, and the nation’s security has not been endangered as far as we know, and all this mucking around in the personal emails of public figures has gone too far. If there’s no crime, let’s move on. The threat is not Clinton and her BlackBerry, but the Russians and their military-industrial-hacking complex.

But Comey, buffeted from both sides and possessed of a fiery moralism, has now possibly thrown the election into doubt. What’s this all about, Jim? We — the voters — need to know. (Actually, I can’t imagine learning anything that would get me to vote for Trump.) Still, some voters are undecided. Both candidates have the negative ratings of bill collectors. Now that Comey has broken established practice and intruded into the elections, he needs to say why — what did his agents glimpse in that laptop that made him throw both judgment and precedent to the wind? It better be good or else he should do what Starr in the end didn’t: quit.


September 10, 2016

Federal Judge Overturns the Dassey Case of "Making a Murderer”

June 30, 2016

Special: Attacks on LGBT People Rarely Prosecuted as Hate Crimes


Image result for gay hate crime not prosecuted

                                                                                     
                                                                       









Dionte Greene, a 22-year-old black gay male, was looking for a hook-up. He reached out to an 18-year-old stranger on Facebook.

“I’m not interested in smoking weed with you, Travone,” Greene wrote to the teenager, Travone Shaw, in their first exchange. “I just find you attractive and I want to have a sexual encounter with you.”

“I ain’t gay,” Shaw replied, according to court documents. “Bro, stop in boxing me.”

But hours later, Shaw contacted Greene twice and invited him to get high on marijuana. “You going to come over tonight when you get off of work?” Shaw asked.

Just after midnight on Oct. 31, 2014, Greene drove to meet the younger man. Three and a half hours later, police discovered Greene’s body in his idling gold Dodge Stratus, with a single bullet in the right side of his head.

Shaw was convicted last month of involuntary manslaughter and stealing in connection to Greene’s death. He faces up to 29 years in prison. But in the view of this city’s LGBT community, law enforcement should have prosecuted the killing as a hate crime.

Greene’s family and friends say Shaw and an accomplice lured, robbed and killed Greene because he was gay. Shaw posted anti-homosexual slurs on his Facebook profile nine times in the eight months before the killing.

Law enforcement officials said they did investigate the killing as a hate crime. A spokesperson for the U.S. Attorney’s office in Kansas City said, “The investigation did not turn out sufficient evidence to support (hate crimes) charges.” The FBI declined to comment on its investigation.

Local officials said they too would struggle to prove beyond a reasonable doubt that anti-gay bias was the motive at the moment of Greene’s murder. They also said a hate crimes murder conviction does not bring additional jail time in Missouri.

State prosecutors charged Shaw with murder, but no hate crime.

"After sitting at the trial, I don’t think those two people were just there to steal his phone,” said Melissa Brown, a local LBGT advocate. She cited Shaw’s use of the prospect of sex to lure Greene to the meeting and his anti-gay slurs on Facebook.

Shaw’s lawyer, Paige Bremer, did not respond to a request to comment.

The handling of Greene’s death is one of three killings of LGBT people in Kansas City since 2010 that, advocates say, should have been pursued much more vigorously as hate crimes. They say there are unresolved questions about whether the three – all of whom were black or Latino – were attacked because of their sexual orientation, gender identity or race.

The massacre of 49 people in an Orlando, Florida, gay bar by a self-professed jihadist has put a spotlight on hate crimes against LGBT people. As the murder cases in Kansas City show, America’s system for punishing bias crimes is filled with limits and inconsistencies.

Seven years after landmark federal legislation recognized attacks on LGBT people as hate crimes, no comprehensive nationwide system exists for tracking bias crimes. And while 30 states have enacted similar laws, criminologists say many of them are poorly written and make convictions difficult.

No comprehensive, nationwide programs exist to train police and prosecutors in how to properly investigate hate crimes. And members of the LGBT community said police frequently react with indifference or hostility when hate crimes are reported.

Prosecutors say proving a hate crime can be difficult and can weaken their overall argument to a jury. But some criminologists say prosecutors have a duty to pursue hate crimes convictions nevertheless, because bias attacks terrorize entire communities, not just individuals.

“It is important to charge, even if you’re not going to get a few more years, because you’re telling the community you will not tolerate this,” said Jack McDevitt, a professor at Northeastern University in Boston, Massachusetts, who studies hate crimes. “But many prosecutors will not take that risk.”

LGBT activists say violence against the community is increasing, particularly against transgender women of color. Twenty-four LGBT or HIV-positive people were murdered in the United States in 2015 because of their sexual orientation, according to an annual survey conducted by the National Coalition of Anti-Violence Programs, an LGBT advocacy group.

Legal scholars said many state statutes were written quickly when politicians were under pressure to act on the issue. The result is a hodgepodge of standards of proof and sentences that confuse juries and judges.

In Delaware, the minimum sentence for defendants convicted of committing a bias-motivated murder is doubled, but many other states provide no such enhancement. In Iowa, meanwhile, attacking someone because of their “political affiliation” is a hate crime. In Louisiana, attacking a police officer is a hate crime. Last year, New Jersey’s State Supreme Court threw out part of its hate crimes law because the standard of proof was too vague.

"The criminal codes vary the same way vegetable soup does from region to region,” said Peter Joy, head of Washington University’s Criminal Justice Clinic in St. Louis, Missouri. “Everyone throws in their own ingredients and comes up with their own recipe.”

Created by the 1968 Civil Rights Act and expanded by Congress in 1994 and 2009, hate crimes laws are designed to add additional punishments to crimes motivated by bias against the victim’s race, ethnicity, religion, national origin, disability, gender or sexual orientation.

During its first five years, the administration of President Barack Obama charged 50 percent more people with federal hate crimes than were charged during the administration of President George W. Bush, a spokesman for the U.S. Department of Justice said. But the number of cases is still small.

Over the last seven years, the Obama Justice Department has brought 33 federal hate crimes cases under the 2009 Shepard/Byrd Act, the spokesman said. Eleven involved discrimination based on sexual orientation. Nine of the 13 defendants in those cases were convicted, with one case pending.

On a state and local level, there is no system that reliably tracks the number of hate crimes reported or prosecuted. An FBI hate crimes database, derived from voluntary reporting by police departments, lists 1,178 reported hate crimes based on sexual orientation in 2014.

But a Justice Department survey of crime victims that same year found 50 times that number - 59,000 people - who said they were victims of hate crimes based on sexual orientation. About half of all the victims surveyed said they did not report the attack to police.

“We don’t believe in police,” said Arianna Lint, a Peruvian transgender woman who runs TransLatina, a support group for transgender women of color in South Florida. “In small towns, they call us ‘freaks’ and ‘it.’ ”

DISTRUST IN SOUTH FLORIDA

In interviews in the Miami area after the Orlando killings, 10 transgender women told Reuters that they and others in their community are reluctant to report bias crimes because of a mistrust of the police.

Among them is Payton Hale, 26. Hale, who is transgender, said she was leaving a bar in Hollywood, Florida, with a friend in the early hours one night in July 2015 when a group of people started to yell slurs at her - “faggot,” “queer” and “tranny.”

As Hale got into her car, a woman from the group ran across the street and began hitting and scratching her, Hale said. A male joined the assault, punching Hale several times in the face.

Hale blacked out. When she regained consciousness, she was covered in blood. The attack left Hale with a fractured nose and three damaged front teeth, hospital and dental records reviewed by Reuters show.

Hale and her friend said the two police officers who responded to the crime failed to pursue the attackers. The perpetrators, they said, were still across the street when police arrived minutes after the attack. Hale’s friend, Pettus “Karma” Deerman, videotaped the interaction with the police.

“This is the cops standing here not doing any fucking thing,” Deerman says in the footage. “They wanted to go ahead and sit here and question us because we’re transgendered. They weren’t worried about the people who victimized my friend right here.”

The police report describing the incident paints a different picture. The officers wrote that Hale was “extremely uncooperative." They also said she did not give a clear description of the assailants.

In the footage, Deerman describes the female attacker as wearing “a white and black dress” and having “dark hair” and mentions a male attacker. Hale also tells the officers she was attacked because she was transgender.

In the section of the report that requires police to say whether the officer suspects the crime was “hate / bias motivated,” the officer wrote “unknown.”

A spokesperson for the Hollywood Police Department cited the police report, which says the officers checked the area for “a male suspect in a white dress,” a different description than the one Deerman gives them in the video. The spokesperson said the officers needed more evidence to declare the case a suspected hate crime.

McDevitt, the Northeastern University professor who studies hate crimes, said he has found bias among police officers toward transgender people.

“The transgender community is probably where the gay community was in the 1980s,” he said, referring to police bias. “Police are not in many cases receptive. They blame the victim for being transgender and somehow deserving of being attacked.”

Hale said her encounter made her lose faith in the police.

“I’m afraid that I could be murdered and the police would literally just kind of brush me away from them,” Hale said in an interview, “like it’d be no big deal.”

A HATE CRIME OR A ROBBERY?

In Kansas City, the handling of the recent string of murders has unsettled many LGBT people interviewed by Reuters.

On the night he died, Greene told a friend he was going to meet someone to have sex. Before leaving his house, Greene traded texts with Shaw, or his accomplice, that police later said “were in reference to performing sexual acts.”

As Greene drove to meet the men who would kill him, he called his best friend and kept him on the phone. Greene thought the 18-year-old was cute, but was nervous about encountering two strangers.

Greene parked on a deserted street and wondered if it was the right address when two men approached the car. Greene kept his cell phone on, so his friend could listen. It was 12:45 a.m.

Greene’s voice grew tense, the friend later testified, as Greene, Shaw and Shaw’s friend drove off looking for marijuana. At 1:05 a.m., Greene’s phone cut off.

Law enforcement officials said Kansas City police deemed the killing “a robbery gone bad” because Greene’s cell phone was missing.

During Shaw’s trial, prosecutors argued that Shaw and his friend used Greene’s homosexuality to lure him to the meeting where he was killed. Shaw’s lawyer argued that he was an unwitting accomplice who had no idea his friend planned to rob Greene at gunpoint.

Shaw was convicted of involuntary manslaughter and robbery in May but acquitted of murder. He faces anywhere from probation to 29 years in prison when he is sentenced next month. His friend, who has pleaded not guilty, will be tried for murder in October.

Michael Mansur, a spokesman for the state prosecutor’s office in Kansas City, said he could not comment on a pending case. But he said the office took hate crime allegations very seriously.

“We do look to see whether evidence supports filing a hate crime,” he said in an email.

Another case that members of the LGBT community in Kansas City say should have been prosecuted as a hate crime is the Christmas Eve 2011 murder of Darnell “Dee Dee” Pearson, a transgender woman. Pearson’s killer, Kenyan Jones, shot Pearson after paying her for sex and then learning Pearson was transgender, according to court records.

Jones obtained a gun, hunted down Pearson and shot her at point blank range, the court records said. Convicted of murder but not a hate crime, Jones was sentenced to 30 years in prison.

Law enforcement officials said the evidence in the case did not merit a hate crimes prosecution. Friends of Pearson, however, believe she was targeted because she was transgender.

Police are also investigating whether a third killing in Kansas City is a hate crime, as members of the LGBT community contend. Last August, a transgender woman named Tamara Dominguez was run over twice by a truck in a parking lot.

Kansas City law enforcement officials say the safety of the LGBT community is a top priority. After the killings in Orlando, the rainbow flag flew at half staff above the Kansas City state courthouse.

The city, whose population is 69 percent white and 30 percent black, has its first African American police chief. The force includes a diversity unit and a liaison to the LBGT community.

On crime reports, police are required to check a box to indicate whether they believe bias may have played a role. The Kansas City Anti-Violence Program, a local LGBT advocacy group, conducts sensitivity training for local police.

In an interview, Kansas City Police Department spokeswoman Kari Thompson said police comprehensively investigate all attacks against the LGBT community.

"We approach it according to the law. That’s how you are able to convict: by the law and based on facts, not assumptions,” she said. “We have to make sure we are doing everything the right way."

Star Palmer, a friend of Greene and local LGBT advocate, sees it differently.

“Why is it so hard to prove a hate crime is a hate crime?” she asked.

                 Zachary Crockett; data via NCAVP hate crime reports (1996-2014)
Ned Parker and Mimi Dwyer/REUTERS

(Reporting By Ned Parker and Mimi Dwyer; edited by David Rohde.)
 (This June 29 Special Report corrects size of increase in number of people charged with federal hate crimes in paragraph 24, adds that 33 prosecutions in past seven years were under the Shepard/Byrd Act in paragraph 25)

June 16, 2016

Rapist Judge Removed from Another Rape Case



                                                                         
                                                                          


Local prosecutors in California successfully moved to remove Aaron Persky, the Santa Clara Superior Court judge, from a sexual-assault case Tuesday, citing his lenient sentencing of Brock Turner, the former Stanford student convicted of sexual assault, as a cause for concern.

The Santa Clara District Attorney’s office told reporters it was also “disappointed and puzzled” by Persky’s dismissal of a misdemeanor mail-theft case on Monday after the prosecution presented its case. According to the Mercury News in San Jose, Persky granted the motion to dismiss because the alleged thefts weren’t recent enough; prosecutors argued he misunderstood the case law he cited.

The removal adds to the growing fallout from the Stanford rape case, which ignited a national debate earlier this month over sexual assault and the criminal-justice system.

Persky was widely criticized for his role in the trial and sentencing of Turner, a former Stanford University student convicted of three felony counts of sexual assault in March for raping an unconscious woman on campus in 2015. During the sentencing phase earlier this month, Turner’s 23-year-old victim read a searing 12-page letter to her attacker in the courtroom that garnered international attention after it was published online by Buzzfeed.
 
Prosecutors originally asked Persky for a six-year sentence, essentially applying the two-year minimum guideline for each of the three felony counts. Instead, Persky instead sentenced Turner to six months in jail and probation. “A prison sentence would have a severe impact on him,” the judge said. “I think he will not be a danger to others.” Turner will also have to register as a sex offender for life.

Tuesday’s removal also follows an extraordinary moment in Persky’s courtroom during jury selection in the dismissed misdemeanor case. The Mercury News reported at least 10 prospective jurors refused to serve on a case assigned to the judge.

"I can't be here, I'm so upset," said one juror, who according to multiple sources, told the judge while the lawyers were picking the jury in the misdemeanor receiving stolen property case.

Another prospective juror stood up and said, "I can't believe what you did," referring to the six-month county jail sentence Persky handed to Turner, who was convicted for sexually assaulting an unconscious intoxicated woman last year outside a Stanford University frat party.

In each case, the judge said, "I understand," thanked the prospective juror and excused her or him from duty.
Jury nullification isn’t unheard of in American legal history. But a jury pool’s mass refusal to participate because of the presiding judge’s actions in an unrelated case appears to be unprecedented, at least in the modern era.

Andrew Ferguson, a University of the District of Columbia law professor who specializes in juries, described the move as “interesting and troubling.”

“Imagine if jurors regularly chose to reject jury service because they disagreed with the prior decisions of a judge or their political or legal philosophy,” he said. “Jurors are the voice of the community, yes, and in one sense, these jurors should be commended for engaging in thinking about the application of criminal law in their courts. But this is a bad precedent.”

Community members outraged by Turner’s sentencing could soon have another way to express their displeasure. Stanford law professor Michele Dauber and other members of the local legal community are spearheading a recall effort to remove Persky, who is running unopposed for reelection in November, from the bench.

August 17, 2015

A Judge without a Law background? Prosecutor and Witness? Meet Small Town Justice



                                                                          
                                                                       
The summary court in Simpsonville, a few miles southeast of Greenville, is also in a mini-mall. (Photo: Matthew Franklin Carter)


After four years with the Army in Iraq, Jake Christie would self-medicate his PTSD with the bottle. It didn’t usually end well. One night in 2014, four years after he was honorably discharged, he got into a fight with another regular at a local watering hole near his home in Port Royal, South Carolina. The owner kicked them out and called the police, who found Christie in the parking lot. They told him to take a cab home and not come back. He obliged but remembered halfway there that he had left his messenger bag with his laptop and community college textbooks in his car, back in the parking lot. He told the cab driver to turn around.

Christie heard a gruff voice as he reached into the backseat of his car to grab his bag: “You weren’t supposed to come back.” It was the police officer from before. He told Christie he was headed to jail, but Christie protested, saying he had no intention of returning to the bar or driving. “I’m not going to jail,” he told the cop. The officer pushed him against the car and spun him around to grab his wrists and cuff him. Perhaps as a symptom of his PTSD—“Something went wonky,” he says—Christie flipped out when he felt the officer’s hands on him, and both went to the ground. The scuffle ended when the officer hit Christie twice with his Taser. Christie was charged with trespassing and resisting arrest. (Christie’s name has been changed out of respect for his fear of retaliation by local police for speaking publicly.)

Several weeks later, he found himself in front of Justice James A. Grimsley III at Port Royal Municipal Court. Down near the water in Beaufort County, the local court is tucked inside the city’s redbrick Town Hall.

Together, the charges carried a sentence of up to 60 days in jail, if found guilty, or $700 in fines. “I told them I wanted a lawyer,” Christie, now 40, said. “But the judge said no—if you request a jury trial, you either have to [represent] yourself or pay for a lawyer.” Christie was barely getting by on disability checks of $420 a month from the Department of Veterans Affairs; his PTSD made work impossible. His income, which was below the federal poverty level, made him eligible for state-appointed counsel. Paying for a lawyer was out of the question, but the judge, unmoved, denied him his constitutional right to an attorney. (Grimsley, a local attorney, did not respond to repeated requests for comment.)

The Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day. No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long.
- Sen. Charles Grassley, R-Iowa
“I just had this sinking feeling when the judge said no,” Christie told TakePart. “The thought of being away from my family, my daughter, in jail…. I just knew it would kill my mom.” 

A request to order Grimsley to provide Christie with counsel went unresolved, but he was offered a plea deal and ended up paying a fine. Christie has since quit drinking, but apart from trips to his psychiatrist at the VA, he doesn’t leave home much these days. It’s not just the sensitivity to crowds and loud noises that keeps him in the house he shares with his mother and daughter: Christie is afraid of getting another misdemeanor ticket that could land him before a judge at the local municipal court.

“I figure it’s hard for them to hem me up if I’m at home,” Christie said. “I just don’t want to put myself or my family through any of that anymore.”

Like many states across the country, South Carolina tasks municipal courts with handling low-level offenses—from traffic tickets to more serious criminal misdemeanor charges, such as drug possession, minor assault, and theft. As in many of these courts nationwide, indigent defendants in South Carolina’s 212 municipal courts routinely plead guilty to minor charges without understanding—sometimes without even being informed of—their right to legal counsel, free of charge. Christie and many others have been denied counsel even though their liberty was at stake—in spite of the U.S. Supreme Court’s determination in Gideon v. Wainwright in 1963 that the Sixth Amendment to the Constitution guarantees criminal defendants the right to professional counsel regardless of their ability to pay for it.

While harsher crimes that carry felony sentences make the news, citizens are most likely to come into contact with the criminal justice system through misdemeanor courts, also called courts of limited jurisdiction. According to the National Center for State Courts, there are 14,000 to 16,000 such courts across 46 states. In 2009, these courts handled 70 million cases.

Data on these courts is tracked inconsistently or not at all, making it hard to know how often the rights of poor defendants are being violated.

4 Politicians Fighting for Fairness in America's Justice System

“Indigent defense services are so bifurcated and balkanized in many states that it’s really difficult to keep track,” David Carroll, director of the Sixth Amendment Center, said. “To try and get information on all of these municipalities, let alone within all those counties, is just a herculean effort that no one is able to do.”

Colette Tvedt at the National Association of Criminal Defense Lawyers is endeavoring to find out. Tvedt has spent the last 12 months visiting courtrooms around the country to observe proceedings. Part of the challenge of determining the scope of the problem is that courts’ operations with respect to free legal representation for indigent defendants vary widely between states, even between counties; while one might have a vibrant public defender system, a county next door might be vastly underfunded.

After working as a public defender in Massachusetts and Washington for more than 25 years, Tvedt joined NACDL to tackle systemic problems. “I really thought I knew public defense, and then I got to this,” Tvedt said. “The underbelly of what’s happening in the U.S. is very different—this is a crisis of indigent defense.”

In May, Sen. Chuck Grassley chaired a Senate Judiciary Committee hearing on the right to counsel for indigent defendants charged with misdemeanors. Grassley, who has openly opposed sentencing reform and espoused tough-on-crime policies, is an unlikely advocate for the rights of poor defendants. But he is one of a growing number of conservative lawmakers whose views have evolved and who now recognize that the country’s incarcerated population has ballooned to an unreasonable and unsustainable level. Municipal courts are one of the primary gateways to this overburdened criminal justice system.

“The Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day,” Grassley said. “No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long.”
A police officer ducked her head out from behind two heavy oak doors in Simpsonville City Hall, which is home to Simpsonville, South Carolina’s municipal court. She looked tired. “Is anyone out here requesting a jury trial?” she asked. A group of accused offenders was waiting outside the courtroom for their appearance before the judge. Many glanced at one another to see if anyone would raise a hand. None did. Outside, a town seal adorning a doormat at the front door read, “A past to remember, a future to build.” Around the corner from the courthouse, a sign in front of the Simpsonville Gun & Pawn shop asked, “Gun control for us, nukes for Iran?”

As offender after offender went through the motions of pleading guilty and then departed, the police officer ushered those waiting one by one through a metal detector and directed each to a seat in the courtroom. A middle-aged man sheepishly set six rolls of change on the table before going through the metal detector; he had brought them to pay his fine.

Assistant Judge Leslie Sharff Sr. heard more than a hundred cases that day, quickly asking defendants if they understood they had a right to an attorney before asking if they understood they were giving up that right. Most swiftly answered yes, with the apparent ease of having been through it before. Others hesitated, seeming not to understand, but also reluctant to slow the proceedings.

When two young codefendants approached the bench to address a shoplifting charge, Sharff asked the women if they wanted PTI. “What does that mean?” one asked. “It’s pretrial intervention,” Sharff replied. Confused, one of them declined the offer and took the fine instead. Had a public defender been present to explain the option to her, she might have chosen differently: This kind of second-chance intervention, available to first-time offenders, allows defendants to enter a rehabilitation program, on completion of which the record of their offense is expunged.
  
These low-level courts handle cases that carry sentences of 30 days in jail or less. Multiple defendants left the Simpsonville courtroom that day with fines of $1,090 for shoplifting offenses. Tvedt has witnessed indigent defendants pleading guilty without lawyers and being assigned hefty fines in South Carolina, Louisiana, Indiana, and Mississippi. Some judges, including Sharff, are generous with assigning payment plans to defendants who can’t come up with the entire sum at once. Others, such as a judge observed in Landrum, South Carolina, stick to what’s known as a “pay or stay” policy.

“When [defendants] can’t pay the money, they’re sometimes taken directly into custody,” Tvedt said. In the municipal court of North Charleston, South Carolina, Tvedt observed as an elderly woman charged with theft of food from a Walmart repeatedly requested and was denied a public defender. Unable to pay her fine, she was handcuffed and taken to jail. Those who can’t afford fines are also generally unable to afford bail—a situation that was darkly manifested in the deaths of Kalief Browder in New York and Sandra Bland in Texas, among many others.

In states such as Missouri, New York, Pennsylvania, Arizona, and South Carolina, limited jurisdiction judges are not required to have a law degree or to pass the bar exam. Many have backgrounds in law enforcement. While public defenders are largely absent from these small courtrooms, some of which can be found in strip malls, police officers are almost always present. The officers often double as prosecutor and witness, appearing before the judge to describe the incident in which they wrote a ticket for or made the arrest of the defendant standing beside them.

The local non-lawyer judge assigned to handle minor civil and criminal infractions was imported to the U.S. by British colonialists, a holdover from King Edward III’s justice of the peace system. It was considered necessary in colonial days for a local official to adjudicate such matters because lawyers were few and far between and travel was difficult. “The problem was to settle disputes among neighbors and to prevent friction where possible,” wrote legal historian Chester H. Smith in 1927. “Few legal principles or rules had been worked out and there was little legislation either to guide or hamper the magistrate. Hence, he was probably as capable as anyone to administer justice according to his own judgment and common sense.”


Across the country, the anachronistic faith that a local citizen without legal training is qualified to administer justice has gone astray. While the offenses and fines may seem minor, defendants eager to return to their jobs and families often rush to plead guilty without understanding the ramifications. “Nationally, I find the biggest problem is that people are pressured so quickly to plead guilty,” Carroll said. “People just think, ‘I want to get out versus drawing this out.’ ”

The case load at these courts is such that the desire to hurry things along is palpable among judges and defendants alike—resulting in what some advocates call “assembly line justice.”

“Just because it’s a low-level offense, it doesn’t mean there aren’t consequences that flow from it,” said Hugh Ryan, deputy director and general counsel for the South Carolina Commission on Indigent Defense, which was established in 1993 to oversee indigent defense services in the state. “Maybe it’s just a fine, but in other instances it could involve jail time, and either way it’s a criminal record.”

 A Court Room

Public defenders in South Carolina are not contractually required to represent indigent defendants in limited jurisdiction courts. Instead, the limited resources of their offices go to handling cases carrying heavier charges—often thousands of them a year—in general sessions and magistrate courts. Still, Ryan explained, the indigent defense commission has long made it clear to policy makers that if these local courts are going to exist, funding should be provided to all public defender's offices in the state to represent all defendants who appear in them.

“Most of these courts pay for a judge and prosecutors, but the one thing they’re leaving out is the one that’s constitutionally protected,” Ryan said.
Following his appearance before Justice Grimsley, Jake Christie filed two applications for a public defender; Grimsley denied both. (The public defender’s office serving Port Royal is not tasked with providing counsel to indigent defendants in the municipal court system.) In a panic, Christie started calling local organizations that might be able to help. Susan Dunn, legal director at ACLU of South Carolina, filed a petition on Christie’s behalf with the general sessions court, requesting that it order Grimsley to assign Christie a public defender. More than a year later, the court had not resolved his case. By then, Christie’s disability payments had increased, and he was no longer considered indigent. A police officer, a vet like Christie, called him on behalf of the court and offered a deal: It would drop the more serious charge of resisting arrest and let him pay the $200 trespassing fine. Eager to move on, Christie paid.

   
In late June, a proviso was added to the state budget for the first time that requires municipal courts to fund the representation of indigent defendants through county public defender’s offices. The law came after years of discussions between the Commission on Indigent Defense, various municipal associations, and state legislators.

The commission is sending public defenders to municipal courts around the state to find out how the proviso is being implemented. In spite of the state’s predominantly conservative legislature, Ryan says many conservative lawmakers have quietly begun to push for funding. “They don’t openly trumpet the public defenders,” Ryan said. “But they know it’s important. To move the dockets, you have to have some type of parity.”

In July, some courts still seemed unaware of their obligation to provide counsel for poor defendants. While some towns are complying, there is resistance. In Anderson, the town council debated on Aug. 3 whether to appropriate $4,547 for the Anderson County public defender’s office to represent the indigent in its municipal court. “This is another unfunded mandate,” complained Williamston Mayor Mack Durham, according to a report in the Independent Mail of Anderson. The town council approved the measure anyway.  


Meanwhile, Tvedt and her team at the NACDL, as well as lawyers from the ACLU, are attuned to the new requirement and continue to observe courts throughout the state.

Though an inventory of counties nationwide is a major undertaking, Tvedt is optimistic about the bipartisan movement for criminal justice reform.

“I’m hopeful we’re at a moment where we can look at this and say, We’re better than this as a country,” Tvedt said. “Every community in this country is impacted by the criminalization of minor infractions, and these communities have to understand what their rights are.”

To Carroll, addressing the pervasive nationwide problem boils down to educating local stakeholders who simply don’t understand the importance of all defendants being professionally represented in court, or what they’re doing wrong.

“There’s no malice here—people think they’re doing it right,” Carroll said. “Time and time again the Supreme Court hands down a ruling on the right to counsel, but it doesn’t really change much on the ground. People interpret these rulings to their own culture. If the culture is to never provide counsel, as it is in so many places, that’s what happens.”

 
Rebecca McCray is a staff writer covering social justice. 
A former Fulbright scholar, she is based in New York.

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