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Arizona prosecutor violated federal law by not personally reviewing wiretap warrants

Arizona prosecutor violated federal law by not personally reviewing wiretap warrants

A federal appellate court has ruled that the office of Maricopa County District Attorney Bill Montgomery violated the law with their wiretapping practices.

The U.S. Court of Appeals for the Ninth Circuit found that Montgomery didn’t personally review and sign off on surveillance warrants, which is required by federal law. Montgomery instead relied on a less restrictive state statute that allowed him to delegate responsibility to someone else in his office.

Alan Simpson, a defense lawyer not involved in this case, told theArizona Republic that the ruling will likely lead to the suppression of wiretap evidence in lots of ongoing criminal cases.

“This is really big,” Simpson said. “It’s a tsunami that’s going to wash so many of these cases right out … There’s no legal way around it. The evidence is suppressible.”

The decision came down in a civil lawsuit filed by Manuella Villa, claimed that her conversations were illegally recorded by law enforcement during a 2012 drug investigation at the direction of Montgomery’s office.

Villa was not the focus of the investigation and was never charged with any crime.

While the court held that Montgomery’s handling of the warrants violated the law, it also found that Villa could not recover monetary damages because the wiretap application was carried out in “good faith.” Moreover, the court held that Villa’s claims only applied to her situation and denied her attempt to bring a class action suit on behalf of others, like her, whose communications had been intercepted by similarly obtained wiretap warrants.

Maricopa County District Attorney Bill Montgomery

Villa’s lawyer, Cameron Morgan, told the Associated Press that the ruling was important even though he disagreed with the court saying the wiretap application was carried out in good faith.

“We’ve seen a lot of abuses of wiretap investigative techniques,” Morgan said. “Hopefully, this will end some of the major abuses. And, hopefully, it’ll make the (Arizona) judiciary sit up and take notice.”

Montgomery has indicated he will appeal the ruling, while also claiming he reads every affidavit provided by law enforcement in support of a wiretap.

But Judge William Fletcher, writing for the three-judge appellate panel, said there was nothing in the record to indicate Montgomery was familiar with Villa’s case, and said it was clear that Montgomery had authorized deputy prosecutors to apply for wiretaps.

American Bar Association endorses multiple criminal justice reform proposals

American Bar Association endorses multiple criminal justice reform proposals

The policy making body of the American Bar Association has approved multiple resolutions calling for a major reform of bail, an end to locking juveniles up in solitary confinement, and an end to mandatory minimum sentences.

The resolutions put the ABA, a voluntary professional association with over 400,000 members, in line with what many criminal justice reform groups have been actively pushing for years.

The resolution calling for bail reform urges local governments to adopt policies that allow people charged with crimes to get out of jail on personal recognizance or unsecured bonds. It also encourages local governments to only seek cash or secured bonds when they are “necessary to assure the defendant’s appearance and no other conditions will suffice for that purpose.” The resolution further suggests “that pretrial detention should never occur due solely to an inability to pay.”

Bail reform has been gaining steady traction around the country. Sen. Rand Paul (R-KY) and Sen. Kamala Harris (D-CA) recently sponsored legislation to reform bail nationally and states like Kentucky and New Jersey and the District of Columbia have moved to reform their respective practices. District Attorneys in places like Chicago and Houston have also come out in support of reform, arguing that it’s necessary to reduce the prison population and avoid disrupting the lives of people who could lose their jobs and income if they remain locked up for months or years on unresolved charges.

The ABA resolution and accompanying report also recommends doing away with juvenile solitary confinement. It suggests that temporary confinement of up to four hours could be used when a juvenile’s behavior could be harmful to himself or others. But the confinement should conclude when the immediate threat is over.

The ABA’s resolution around juvenile solitary confinement echoes ongoing efforts to end the practice. For example, former President Barack Obama adopted the Department of Justice’s recommendation to end solitary confinement in federal prison facilities. Yet the practice persists at the state and local levels.

The case of Kalief Browder generated national attention and outrage after it was learned that Browder had been locked up at Rikers Island in New York for three years — two of which were in solitary confinement — after he was wrongfully arrested for stealing a backpack.

Browder suffered mightily due to his isolation and treatment while in jail and attempted to kill himself four times. He later committed suicide after the charges were finally dismissed and he was released.

How widespread juvenile solitary confinement is at the state and local level is largely unknown due to the absence of available information.

According to Solitary Watch: “It is impossible to know how many young people under the age of 18 are suffering in solitary confinement as Kalief did, since neither state nor federal governments have reliable data on the total number of youth placed solitary confinement each year. The practice is known to be widespread, but it occurs differently in different types of settings and is referred to by a range of innocuous euphemisms, making it difficult to quantify or track.”

The ABA resolution also calls for an end to the use of mandatory minimum sentences. It asks the U.S. Congress and state legislatures to repeal existing mandatory minimum sentences and oppose the creation of any new such legislation.

The report stressed that the United States locks up more people than any other country on earth, and in the 25 years since the adoption of mandatory minimums for drug offenses the average annual sentence has tripled in time served.

Bar officials also pointed out that studies have repeatedly shown that mandatory minimum sentencing more harshly impacts people of color, with black defendants more likely to be charged and sentenced to a mandatory minimum sentence.

“Sentencing by mandatory minimums is the antithesis of rational sentencing policy,” the report said. “Because mandatory minimum sentences are not in line with the purposes of sentencing and, rather, lead to indeterminate sentencing, racial disparity, and mass incarceration, we urge the adoption of this resolution.”

Thanks to Jake Sussman.

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Basic constitutional rights still denied in misdemeanor courts

Basic constitutional rights still denied in misdemeanor courts

If there’s a chance you could wind up in jail, you have the right to an attorney whether or not you can afford one. The U.S. Supreme Court has reaffirmedand clarified this right more than once, in doing so making clear that it applies to both misdemeanor and felony offenses. Yet in Nashville, Tennessee, defendants in misdemeanor courts aren’t being informed of this basic right, and in some cases are outright denied a lawyer, according to a report from the American Bar Association.

A review of court records showed that between 2015 and 2016, roughly 80 percent of defendants in Davidson County weren’t represented by a lawyer when their charges were resolved, according to the report. When volunteer lawyers observed misdemeanor court proceedings in September 2016, they watched as prosecutors negotiated plea deals with defendants before they were informed of or had surrendered their right to an attorney.

The lawyers also discovered that judges and prosecutors repeatedly failed to ask defendants about their financial situations, assigning unmanageable fees and not informing defendants of the possibility to have those fees reduced.

This unconstitutional denial of counsel in Nashville’s misdemeanor courts is far from isolated. Across the country, indigent defendants facing low-level misdemeanor charges are routinely denied or not informed of their right to counsel. In May 2015, the problem was acknowledged at a bipartisan U.S. Senate Judiciary Committee hearing on the right to counsel for indigent defendants.

“The Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day,” testified Sen. Chuck Grassley. “No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long.”

Scenes described by the ABA report illustrate a daily reality playing itself out in overburdened state and local justice systems. Defendants are shuffled through courtrooms like parts on an assembly line, with efficiency taking precedence over justice. Prosecutors were observed discussing plea deals with groups of as many as five defendants at a time, rushing them through an opaque process without explaining the consequences of opting for a guilty plea.

Public defenders were not present in the courtrooms observed by the volunteer lawyers, and judges didn’t explain what was at stake for defendants.

“I think it’s a situation where a judge is more concerned with the number of cases in his courtroom than making sure that the prosecutor is doing their job and the defendant’s rights are protected,” Joseph Ozment, president of the Tennessee Association of Criminal Defense Lawyers told ProPublica.

The ABA report on Nashville is the first of a “larger, national project to review practices in misdemeanor courts in other states throughout the country.” It’s far from being the first formal documentation of this pervasive problem, which is acknowledged in the report’s introduction. But in spite of ample evidence of the problem, Sixth Amendment violations in low-level courts persist.

Thanks to Jake Sussman.

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