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Allegations of police corruption in Chicago present a big opportunity for Kim Foxx

Who is she accountable to?

Chicago residents protesting a police shooting.

Allegations of police corruption in Chicago present a big opportunity for Kim Foxx

Who is she accountable to?

Four years after former Chicago Sgt. Ronald Watts pleaded guilty to stealing from an undercover officer, 15 people whose cases were linked to the crooked cop are banding together to fight their convictions. The group recently filed a court petition alleging that Watts played dirty when working on their cases, and that their convictions should be overturned. During a news conference last week, the petitioners’ attorney also said Watts’ known history of corruption calls into question the integrity of all the cases he previously worked on.

Petitioner Lionel White Jr. claims he was convicted after Watts planted drugs on body. He says he was framed a few months after his father filed a complaint against Watts for similar abuses of power. The 14 other petitioners made similar allegations about Watts, who patrolled a public housing complex for years and was reportedly notorious for corruption, according to the Chicago Tribune. In addition to stealing money from a federal informant posing as a drug courier in 2012 — a crime for which he spent 18 months in prison — Watts was known for taking money from drug dealers in exchange for “protecting them.”

The petitioners’ attorney, Joshua Tepfer, argues that this systemic corruption cannot be ignored. “There’s no way to separate the wheat from the chaff,” he said during last week’s news conference. “This is a credibility contest. Who do we believe, the police officers, or these citizens?” Tepfer also noted that people who have spoken out against Watts in the past have been retaliated against.

The 15 petitioners are not the first to challenge their cases due to Watts’ misconduct. At least five other people arrested by Watts and his team of officers have had their convictions tossed out, including White’s fatherTwo of the convictions were overturned this year, at the urging of Cook County State’s Attorney Kim Foxx, whose first term as the county’s top prosecutor began in December. But with so many cases at stake, the latest petition gives Foxx an opportunity to make a big statement about police corruption in a city where shady police dealings are the norm. It also presents an opportunity for the newcomer to show who she is accountable to: the police or the communities they have historically abused.

From the Guardian’s investigation of police black site Homan Square to local reporting on Laquan McDonald and other victims of police violence, there is no shortage of stories about systemic police abuse and misconduct in Chicago. Nevertheless, egregious police behavior has largely been swept under the rug by the city’s top brass, including Foxx’s predecessor, Anita Alvarez. Not only did Alvarez wait more than a year to charge McDonald’s shooter — a decision made when the city was court ordered to release video of the shooting — but she failed to charge officers responsible for the deaths of 68 people. She undercharged the officer who fatally shot Rekia Boyd, and prosecuted a woman who filed a complaint against officers for sexual harassment. But her actions were also par for the course. As Black Lives Matter activists and journalists have repeatedly pointed out — most recently in response to the Jason Stockley’s acquittal in St. Louis — cops are rarely charged for extrajudicial killings. When officers are prosecuted, they are rarely convicted.

It is the exception, not the rule, when prosecutors choose to hold officers accountable.

As a state’s attorney candidate, Foxx, who previously served as an assistant attorney under Alvarez, promised change. She was highly critical of Alvarez’ handling of the McDonald case, and acknowledged the conflict of interest that exists when prosecutors have to police the police. “To fix that system, and to begin to build public trust in it, we must acknowledge the fact that the Cook County state’s attorney’s office relies heavily on police officers as witnesses and critical sources of information for most of the cases it prosecutes,” she wrote during her candidacy.

As State’s Attorney, Foxx was also committed to reforming the office’s Conviction Integrity Unit early on. In December, she said that the unit had been “compromised” and hired a law professor to design a better system — a move she described as a “top priority.” In May, she tapped a long-time trial lawyer to lead the unit, applauding his “sound judgment, exemplary reputation, and thoughtful and thorough approach.” Since the start of Foxx’s leadership, the office has overturned at least five convictions, including the two cases linked to Watts. Having run on a progressive platform that emphasized officer accountability, overturning 15 convictions could send an even clearer message that corruption — when identified — will not be tolerated.

But it is also a pivotal opportunity for Foxx to make a statement regarding who she is bound to serve: law enforcement or the people who got her elected.

Foxx belongs to a growing group of district and state attorneys elected because they are critical of outdated tough-on-crime policies that have, historically, led to the over-criminalization of Black and Latinx communities. Those communities saw Foxx as a potential game-changer. They launched a massive grassroots campaign, steered by Black Lives Matter activists and Assata’s Daughters, that aimed not only to elect her, but also to oust Alvarez, who had targeted them and protected cops at their expense.

The more Foxx does to right past wrongs within the law enforcement community — even if that could sully her relationship with the police she collaborates with —indicates that she feels obligated to fulfill her pledge to the people who put her in office. It says that prosecuting officers and acknowledging their abuses of power should be the rule, not the exception.

Ex-DA faces suspension after failing to disclose that cop planted evidence in murder case

Kenosha County Courthouse

Ex-DA faces suspension after failing to disclose that cop planted evidence in murder case

An 85-page report filed with the Wisconsin Supreme Court by retired Circuit Judge Dennis Flynn found that former Kenosha County District Attorney Robert Zapf committed multiple instances of professional misconduct — and that Zapf deserves to be suspended from practicing law and prohibited from ever again being a prosecutor.

The violations go back to to Zapf’s conduct when he was prosecuting Markese Tibbs and Joseph-Jamal Brantly for the murder of Anthony Edwards. Although Zapf had a duty to disclose Kenosha Officer Kyle Baars’ misconduct — which involved planting a .22 caliber bullet and Tibbs’ ID card at a house that was searched as part of the investigation — he did not promptly share the information. In fact, Zapf went so far as to keep Baars on the prosecution’s witness list despite knowing that Baars had resigned as a result of his flagrant misdeeds.

Baars did not testify at trial, although another police officer testified about finding the ID card and bullet, and photos of both were shown the jury with no mention that Baars had planted them.

Zapf only disclosed the information when Brantly’s criminal trial was almost over. By that point, Tibbs had already cut a deal and agreed to testify against Brantly.

According to the Milwaukee Journal Sentinel, “Only after the defense had rested did Zapf tell the judge there were problems with that evidence, and that Baars had resigned.”

Despite protestations by defense counsel that the misconduct justified a mistrial, the trial court denied their motion.

Brantley was convicted and sentenced to 23 years in prison. Tibbs was sentenced to 16 years in prison.

The Wisconsin Office of Lawyer Regulation later filed three counts against Zapf.

Zapf sought to defend himself by claiming that “the evidence planting information was not relevant, material or exculpatory.” Zapf also asserted that he only had to disclose written reports about misconduct, and because he learned about Baars’ “planting” and subsequent resignation orally (from, among others, the Chief of Police), he somehow did not have an affirmative duty to share the information with the defense.

Flynn flatly rejected Zapf’s excuses.

“The extraordinary evidence of a KPD officer planting evidence in a homicide case and then subsequently resigning because of that misconduct was exculpatory evidence in and of itself,” Flynn wrote. “This is so whether the planted evidence is determined to be relevant or not in the case.”

Flynn also emphasized that the role of prosecutors is to ensure “that justice shall be done,” and noted that the Mission Statement for the Kenosha County District Attorney’s Office that prosecuted Tibbs and Brantley says, in part:

… It is important to keep in mind that the District Attorney is the gatekeeper to the criminal justice system. As such, his job is not merely to obtain convictions but to seek justice.

Flynn also dismissed Zapf’s argument that the strength of other evidence against Tibbs and Brantly somehow lessened the degree of his responsibility and ultimate wrongdoing:

The law presumes honesty and integrity by those who make gatekeeping decisions regarding the production of exculpatory evidence. … Respondent confused his belief in the strength of his case and the guilt of the persons he charged with crimes with the right those persons have to fundamental fairness in the trial process.

The Wisconsin Supreme Court, which appointed Flynn as a “referee” to gather evidence, conduct hearings, and offer his recommendations, will make the final decision on Zapf’s culpability and punishment. According to the Wisconsin Courts System, “The Supreme Court reviews referee reports and independently determines whether to accept the referee’s recommendation.”

Baars, the officer involved, eventually pleaded guilty to felony misconduct and was sentenced to a year of probation.

Zapf chose not to seek reelection as Kenosha County District Attorney in 2016.

Thanks to Jake Sussman.

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Keith Tharpe’s Scheduled Execution Tests Our Tolerance for Racial Bias in Executions

There are two types of Black people, the juror said, and Tharpe wasn’t a “good” one.

Jones County Courthouse
Wikimedia Commons

Keith Tharpe’s Scheduled Execution Tests Our Tolerance for Racial Bias in Executions

There are two types of Black people, the juror said, and Tharpe wasn’t a “good” one.

In 1991, a jury in Jones County, Georgia, sentenced Keith Tharpe, a Black man, to death for the murder of his sister-in-law. Seven years later, Tharpe’s defense counsel met with a white juror from Tharpe’s trial as part of their routine investigation of the case. The juror explained to the lawyers why he voted for Tharpe’s death, and then reviewed, edited, and signed a sworn statement, which set out his views of race and Tharpe:

I have observed there are two types of Black people: 1. Black folks and 2. Niggers. For example, some of them who hang around our little store act up and carry on. I tell them, “nigger, you better straighten up or get out of here fast.”

I felt Tharpe who wasn’t in the “good” black folks category in my book, should get the electric chair for what he did. . . .

After studying the Bible, I have wondered if black people even have souls. Integration started in Genesis. I think they are wrong. For example, look at O.J. Simpson. That white woman wouldn’t have been killed if she hadn’t married that black man.

The defense lawyers filed the juror’s signed statement in court the next day.

Only a unanimous jury can convict and impose a death sentence in Georgia, and the law has long recognized that misconduct by a single juror requires reversal. The juror’s stunning admission of racially biased views, including his view of the defendant, should have led to a hearing and a new trial. Instead, Tharpe faces possible execution next Tuesday, September 26, 2017.

In what threatens to be a grave miscarriage of justice, no court has ever considered the testimony about this misconduct. The federal courts must act now under the law’s constitutional promise of equality and fairness and reopen his case so that his claim of racial bias can finally be heard.

What should have happened in 1998 is that the then-elected prosecutor for the Ocmulgee District, Joseph Briley, and the Georgia Attorney General should have responded to the juror’s affidavit by announcing they would not tolerate racial bias in capital sentencing and agreeing that Tharpe should get a new trial.

Instead, counsel from the Georgia Attorney General’s office responded by trying to minimize the juror’s statements and asking the court to ignore the bias. First, they went to see the juror the next day after reading his statements of racial bias and obtained a new statement. In this new statement, the juror did not deny what he said about Black people or Tharpe. Instead, he complained that the lawyers were not clear enough about their purpose in talking with him and that he had been drunk when he talked with the lawyers.

The state attorneys then came to court and argued that the racial bias of the juror should be irrelevant to Tharpe’s death sentence because the law should not permit investigation into racial bias by jurors after the verdict. Unfortunately, this response was hardly surprising. Georgia’s Attorney General’s office had years of practice defending racially tainted capital cases from Mr. Briley’s office.

How do we know that capital prosecutions in Briley’s office were contaminated by racial discrimination? He put it in writing.

In 1978, Briley wrote an “infamous” handwritten memo instructing the clerk’s office on how to reduce the number of Black people and women on juries without detection. In other words, he explained how to discriminate and get away with it. He also repeatedly removed qualified Blacks from jury service in violation of the constitutional prohibition of using race in jury selection. Although it is notoriously difficult to show purposeful discrimination in jury selection because of the wide deference afforded to prosecutors, courts found that Briley’s actions in fact met the high burden of proof required.

During his 20-year tenure between 1974 and 1994, Briley tried 33 capital cases — 24 of which were against Black defendants like Tharpe. In the cases with Black defendants, 90 percent of the jurors Briley removed from serving in these capital cases were Black.

In Tharpe’s case, the state court ruled that the noxious statements by the juror were inadmissible because the law protects jury verdicts as unimpeachable. In other words, even where there is smoking-gun proof that one or more jurors used racially biased decision-making, courts will not reopen jury verdicts. The state court denied the claim on the wrong theory that jurors should not be permitted to testify about how their racial bias affected the verdict.

This question — whether courts should revisit jury verdicts when presented with proof of racial bias by a juror in decision making — was answered with a resounding yes earlier this year in the Supreme Court case, Pena-Rodriquez v. Colorado. In a 5–3 decision, the justices ruled that it “must become the heritage of our Nation to rise above the racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.”

Tharpe’s appeals proceeded through state and federal courts without any court ever considering whether the juror’s profoundly troubling remarks violated the Constitution. Even though Pena-Rodriguez makes clear that Tharpe should receive a hearing, halting his execution and reopening his federal case requires that he show extraordinary circumstances. The Supreme Court ruled in another case this year, Buck v. Davis, that the “noxious strain of racial prejudice” constituted extraordinary circumstances that required the reopening of federal habeas proceedings.

Halting Tharpe’s execution today should be an easy call. Reopening his case and allowing a court to rule on the proof of racial taint by the juror in Tharpe’s case is the only path forward commensurate with recognition of equal dignity of all. Keith Tharpe deserves a new trial before a jury of his peers. Otherwise, we will condone a criminal justice system that allows racial animus to influence matters of life and death.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

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