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15
Oct
14

this way before

tristen kurilla

Yesterday as the news hit the Internet and airwaves, readers were outraged by Pennsylvania’s decision to charge 10-year-old Tristen Kurilla as an adult in the death of 90-year-old Helen Novak. According to the boy, Ms. Novak (a resident at the boy’s grandfather’s house, which he was visiting) yelled at him for entering her room to ask a question, angering the boy, and triggering his unpremeditated assault on her with a cane and his fists.

There is obviously more to this story than is now known, but the fact remains that Pennsylvania law gives prosecutors no choice but to charge anyone who commits murder, regardless of age, as an adult. Defense attorneys must petition the courts to re-charge the young person as a juvenile if they hope for the state to deal with the child in a rational way. But as we have seen in the case of 11-year-old Jordan Brown, publicity and politics can make this petitioning move problematic, to say the least.

More than five years after the event, Jordan is still incarcerated by Pennsylvania for two murders of which he has not been convicted and is most assuredly innocent (his conviction by a juvenile court has been vacated by the Superior Court in Pittsburgh, but through legal maneuvering by the state prosecutor, his present legal status is in limbo due to a pending ruling, and inaction, by the Pennsylvania Supreme Court).

There are a number of things which are extremely troubling about Pennsylvania’s approach to juveniles charged with murder.

First, the traditional protections generally afforded juveniles are not available to young people accused of murder. In Jordan’s case, as with Tristen’s, the identities of children are plastered all over the media, as are their back stories. Normally, the identities of children charged with other crimes are not disclosed to the public. This exception with regard to the act of murder ensures that the child’s identity will be forever linked with the act, regardless of circumstances, guilt or innocence.

Second, even though Tristen’s attorney has announced that he will seek bail, there is a question based on Jordan Brown’s experience whether bail is even available under the circumstances and Pennsylvania law. To my knowledge, it is not.

Third, regardless of innocence or guilt, Pennsylvania law prevents any child accused of murder being dealt with in a constructive way. As long as he maintains his innocence, Pennsylvania has denied Jordan any services which permit the state’s unjust acts being addressed for Jordan in a therapeutic way.

It is a bad, stupid statute and the Pennsylvania State Legislature must reform it immediately. Under pressure from the Philadelphia district attorney’s office (arguably the worst in the country), it was enacted as a knee-jerk reaction to Philadelphia’s perceived youth gang problem. As we are seeing, it is being applied in Pennsylvania to non-youth-gang-related cases and it must stop.

۞

Groove of the Day

 Listen to Jimmy Ruffin performing “I’ve Passed This Way Before”

14
Oct
14

the kings of the courtroom

Whoops… sorry for the late post! Alex and I went to Alpine today and forgot to push the button before we left. So we got back at 10:00 pm and are just now taking care of business…

prosecutor

How prosecutors came to dominate the criminal justice system

October 4, 2014, The Economist

Cameron Todd Willinghham was accused of murdering his daughters in 1991 by setting fire to the family house. The main evidence against him was a forensic report on the fire, later shown to be bunk, and the testimony of a jailhouse informant who claimed to have heard him confess. He was executed in 2004.

The snitch who sent him to his death had been told that robbery charges pending against him would be reduced to a lesser offense if he co-operated. After the trial the prosecutor denied that any such deal had been struck, but a handwritten note discovered last year by the Innocence Project, a pressure group, suggests otherwise. In taped interviews, extracts of which were published by the Washington Post, the informant said he lied in court in return for efforts by the prosecutor to secure a reduced sentence and—amazingly—financial support from a local rancher.

A study by Northwestern University Law School’s Center on Wrongful Convictions found that 46% of documented wrongful capital convictions between 1973 and 2004 could be traced to false testimony by snitches—making them the leading cause of wrongful convictions in death-penalty cases. The Innocence Project keeps a database of Americans convicted of serious crimes but then exonerated by DNA evidence. Of the 318 it lists, 57 involved informants—and 30 of the convicted had entered a guilty plea.

“The prosecutor has more control over life, liberty and reputation than any other person in America,” said Robert Jackson, the attorney-general, in 1940. As the current attorney-general, Eric Holder, prepares to stand down, American prosecutors are more powerful than ever before.

Several legal changes have empowered them. The first is the explosion of plea bargaining, where a suspect agrees to plead guilty to a lesser charge if the more serious charges against him are dropped. Plea bargains were unobtainable in the early years of American justice. But today more than 95% of cases end in such deals and thus are never brought to trial.

The pressure to plead guilty

Jed Rakoff, a district judge in New York, thinks it unlikely that 95% of defendants are guilty. Of the 2.4m Americans behind bars, he thinks it possible that “thousands, perhaps tens of thousands” confessed despite being innocent. One reason they might do so is because harsh, mandatory-minimum sentencing rules can make such a choice rational. Rather than risk a trial and a 30-year sentence, some cop a plea and accept a much shorter one.

In such negotiations prosecutors “hold all the marbles”, says Alexandra Natapoff of Loyola Law School. Mandatory sentencing laws prevent judges from taking into account all the circumstances of a case and exercising discretion over the punishment. Instead, its severity depends largely on the charges the prosecutor chooses to file. In complex white-collar cases, they can threaten to count each e-mail as a separate case of wire fraud. In drugs cases they can choose how much of the stash the dealer’s sidekick is responsible for. That gives them huge bargaining power. In Florida 4-14g of heroin gets you a minimum of three years in prison; 28g or more gets you 25 years.

In 1996 police found a safe in Stephanie George’s house containing 500g of cocaine. She said it belonged to her ex-boyfriend, who had the key and admitted that it was his. Prosecutors could have charged Ms George with a minor offense: she was obviously too broke to be a drug kingpin. Instead they charged her for everything in the safe, as well as everything her ex-boyfriend had recently sold—and for obstruction of justice because she denied all knowledge of his dealings. She received a mandatory sentence of life without the possibility of parole. Her ex-boyfriend received a lighter penalty because he testified that he had paid her to let him use her house to store drugs. Ms George was released in April, after 17 years, only because Barack Obama commuted her sentence.

Under Mr Holder the federal mandatory-minimum regime has been softened for non-violent drug offenses. But this has only curbed the power of federal prosecutors, not state ones, and only somewhat.

Another change that empowers prosecutors is the proliferation of incomprehensible new laws. This gives prosecutors more room for interpretation and encourages them to overcharge defendants in order to bully them into plea deals, says Harvey Silverglate, a defense lawyer. Since the financial crisis, says Alex Kozinski, a judge, prosecutors have been more tempted to pore over statutes looking for ways to stretch them so that this or that activity can be construed as illegal. “That’s not how criminal law is supposed to work. It should be clear what is illegal,” he says.

The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with “co-operating witnesses”, once rare, have grown common. In federal cases an estimated 25-30% of defendants offer some form of co-operation, and around half of those receive some credit for it. The proportion is double that in drug cases. Most federal cases are resolved using the actual or anticipated testimony of co-operating defendants.

Co-operator testimony often sways juries because snitches are seen as having first-hand knowledge of the pattern of criminal activity. But snitches hoping to avoid draconian jail terms may sometimes be tempted to compose rather than merely to sing.

Sing or suffer

It is not unusual for a co-operator to have 15 or 20 long meetings with agents and prosecutors. It is hard to know what goes on in these sessions because they are not recorded. Participants take notes but do not have to write down everything that is said; nor do they have to share all their notes with the defense. The time that co-operators and their handlers spend alone is a “black hole”, says a prosecutor quoted in “Snitch: Informants, Cooperators and the Corruption of Justice”, by Ethan Brown.

Co-operators have become more common in corporate cases since the Justice Department started bringing in more lawyers experienced in dealing with organized crime. Business cases typically involve mountains of hard-to-fathom documents and turn not on actions but intent. Often, the only way to convince a jury that the defendant knew a transaction was dodgy is to have a former colleague say so.

A common way to recruit co-operators is to name lots of a defendant’s colleagues as “unindicted co-conspirators”. (In the Enron fraud case there were 114.) An unindicted co-conspirator can be indicted at any moment; his lawyer will therefore usually advise him, at the very least, not to annoy the prosecutor by helping the defense.

prosecutor conductingIn 2009 James Treacy, a former executive of Monster Worldwide, an employment website, was convicted of illegally manipulating (or “backdating”) stock options and handed a two-year sentence. He blames “slanted” testimony by former colleagues turned co-operators. After his release, one of them asked to meet him. Over lunch she tearfully “described the government’s intimidation tactics,” he says. “Some were almost comical: broken chairs to sit in; investigators flashing their holstered guns; and long, miserable hours of ‘good cop, bad cop’ routines, with few water or bathroom breaks. Other techniques were more serious. Prosecutors played the innuendo game, suggesting an indictment if the witness did not co-operate.”

Mr Treacy has an axe to grind, but he is not alone in arguing that the system encourages embellishment, or in believing that some prosecutors overstep the mark because they hope to parlay courtroom victories into lucrative partnerships at law firms or platforms to run for public office.

Co-operators feature extensively in insider-trading cases. James Fleishman, a former manager at Primary Global Research, was first approached by FBI agents to help them ensnare his superiors. When he refused to co-operate, insisting he knew of no illegal activity, he became a target himself. His conviction rested on co-operation from two former clients who had been put under immense pressure to be helpful to prosecutors. (They told one they would seek to have him jailed for 50 years if he declined their offer.) In a self-published book, Mr Fleishman argues that the testimony of both was littered with fabrications, including phone conversations that never took place. The co-operators got probation. Mr Fleishman was jailed for 30 months.

There is no way to confirm Mr Fleishman’s version of events. There was, however, an intriguing moment at his trial. During cross-examination Mr Fleishman’s lawyer complained that his opposing number was mouthing words to a co-operating witness who appeared to be going off-script. The prosecutor’s response was: “If I did that, and I’m not disputing what he said…I’m sorry.”

It is not clear how often prosecutors themselves break the rules. According to a report by the Project on Government Oversight, an investigative outfit, compiled from data obtained from freedom of information requests, an internal-affairs office at the Department of Justice identified more than 650 instances of prosecutors violating the profession’s rules and ethical standards between 2002 and 2013. More than 400 of these were “at the more severe end of the scale”. The Justice Department argues that this level of misconduct is modest given the thousands of cases it handles.

Judge Kozinski worries, however, that there is “an epidemic” of Brady violations—when exculpatory evidence is hidden from defense lawyers by prosecutors. For example, in 2008 Ted Stevens, a senator from Alaska, was found guilty of corruption eight days before an election, which he narrowly lost. Afterwards, prosecutors were found to have withheld evidence that might have helped the defense. Mr Stevens’s conviction was vacated, but he died in a plane crash in 2010.

Prosecutors enjoy strong protections against criminal sanction and private litigation. Even in egregious cases, punishments are often little more than a slap on the wrist. Mr Stevens’s prosecutors, for example, were suspended from their jobs for 15 to 40 days, a penalty that was overturned on procedural grounds. Ken Anderson, a prosecutor who hid the existence of a bloody bandana that linked someone other than the defendant to a 1986 murder, was convicted of withholding evidence in 2013 but spent only five days behind bars—one for every five years served by the convicted defendant, Michael Morton.

Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems. Judge Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining—for instance by bringing in a magistrate judge to act as a broker. He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.

Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials. This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.

Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”

۞

Groove of the Day

Listen to Shinedown performing “Bully”

 

13
Oct
14

selfless hero

palos hills plane crash

A small Beechcraft airplane crashed last night in suburban Chicago after taking off from Midway airport. All three people aboard were killed, none of them has been publicly identified, but already the pilot (and maybe the others, too) are being shown to have exhibited remarkable behavior in their final moments.

Reports are being made that the aircraft was piloted in circles until an open space could be identified in the densely-populated suburb of Palos Hills. It crashed in a small field in a heavy residential area but did not hit any homes. No one on the ground was hurt.

What kind of presence of mind, what kind of personal character, must the pilot have had to show such concern for the welfare of anonymous people on the ground?

When the dead are identified, the pilot must be recognized for his extraordinary selflessness in a situation in which few of us would measure up to such standards of humanity.

According to the FAA’s website, the plane is registered to Arc Aviation LLC, based in Lawrence KS.

۞

Groove of the Day

Listen to Gladys Knight and the Pips performing “Hero (The Wind Beneath My Wings)”

12
Oct
14

tristan und isolde

tristan and isolde cropped

A little romance today from one of the greatest love stories ever told.

۞

Groove of the Day

Listen to Arturo Toscanini performing the Prelude and Liebestod from Richard Wagner’s “Tristan und Isolde”

11
Oct
14

fly on the wall

fly_on_wall_by_peach

I hope you’ll permit me to vent.

One of the trade-offs of having an extended season of warm weather is that our fly season appears to go on forever. And the last few days have been just terrible, fly-wise. The presence of the little black (biting) beasts have been driving Alex and me NUTS.

Killing flies has been our principle activity over the last few days. The floor is littered with the carcasses of dead flies, and more than one flyswatter has been shattered. It is almost bad enough that we’re both wishing we had screens on the windows, though I imagine that screens would do a better job of keeping the pests in (rather than keeping them out).

There has been so much news on the radio over the last few days about the Ebola crisis, I wonder if flies aren’t responsible for the spread of the disease? They’re malevolent enough that it wouldn’t surprise me.

۞

Groove of the Day

Listen to XTC performing “Fly on the Wall”

10
Oct
14

stolen dance

stolen dance by milky chance

This is a year-old song that both Alex and I like. Alex mostly prefers music he says is “violent,” but I don’t see any violence here. At first, Alex seemed to like this selection in spite of himself; it was almost as if he needed a bucket with which to categorize the song. I told him it was “Indy,” even though the category is so broad as to make it virtually meaningless. It worked. He says the song is “fun.”

۞

Groove of the Day

Listen to Milky Chance performing “Stolen Dance”

09
Oct
14

if l should die before l wake

family

How much has changed since I was a child and was taught the common nighttime prayer:

……………Now I lay me down to sleep,
……………I pray the Lord my soul to keep,
……………If I should die before I wake,
……………I pray the Lord my soul to take.

Then began a long litany of people who I asked to “God bless”: parents, siblings, grandparents, aunts and uncles, cousins, even family friends. People, once so close, many of whom are now either dead, estranged, forgotten… little more than just names.

This is to be expected with people who were once just friends, but with family?

Several years ago, my best friend from high school–now an attorney–found himself across his desk from the daughter of a cousin (I don’t know which cousin nor the girl’s name). He began telling her about having known my grandparents–once prominent people in our city–and he quickly realized that she knew nothing of her great-grandparents and, what’s more, didn’t care. I was surprised and dismayed to learn this. Aside from my parents, my grandparents had been the most important people in my life.

Long before I began working with parricides, I had come to the conclusion that, despite all the fuss about “family values,” many or most of us in America have forgotten how to be families.

This was particularly driven home to me when a close friend was asked to serve on the Grant Committee of a family foundation. The Grant Committee was responsible for reviewing grant requests, researching the work of applicants, and making recommendations to the foundation’s board based on how good a “fit” there was between the applicant and the foundation’s purpose and values. The family in question was a particularly large clan which included a diverse number of individuals and views. Some wise family member created a huge pot of money and a structure for administering it in such a way as to require multiple generations of family members to work together for a common purpose. This example made the light bulb turn on for me. Say what you will about this particular group of people, this is a family that knows how to be a family.

Most of us do not have the wealth to create such a structure, but I believe that it does not take money to create family cohesion. I think it is enough to be explicit in defining what values should unite us into strong family units.

About seven years ago, when Derek King was still incarcerated and considering coming to live with me, the thought came that he (like most parricides) had never experienced being a part of a healthy family unit. So I did some research and wrote “The Healthy Family Model” for his review and reaction. He was impressed and shopped the paper around his prison. He said that the paper was well-received by inmates who had something going for them and met with indifference from inmates who did not.

I have asked Alex King to review the document, and I would like to ask you to do so, too. Please click here to access “The Healthy Family Model.” I am very interested in your feedback.

۞

Groove of the Day

Listen to Hank Williams, Jr. performing “Family Tradition”




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