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California prosecutor punished a second time for conduct in prosecuting high profile child molestation case

California prosecutor punished a second time for conduct in prosecuting high profile child molestation case

The State Bar of California has given a public reproval to a San Mateo prosecutor after ruling that she made false statements about a potential witness in a criminal case.

Under a settlement agreement, Deputy District Attorney Melissa McKowan stipulated to one count of violating the business and professions code while she was prosecuting the child molestation case of William Ayres. It is the second time McKowan has faced discipline due to her conduct in the Ayres case.

The arrest and prosecution of Ayres generated national attention because he was a prominent child psychologist before he was arrested and charged with molesting numerous underage male patients.

Ayres first trial in 2009 ended in a hung jury. Before he was to be retried in 2013, Ayres pleaded no contest to the charges and was sentenced to eight years in prison. He died in 2016 while still locked up.

After Ayres’ first trial ended in a mistrial, journalist and victim’s advocate Victoria Balfour expressed concern about McKowan’s conduct and filed a complaint against her. In that complaint, Balfour accused McKowan of lying to a victim’s mother about having talked to a potential witness who could rebut Ayres’ defense that his physical examination of patients was proper.

McKowan later admitted she hadn’t contacted that potential witness and the San Mateo District Attorney’s Office suspended her for three days and placed a formal reprimand letter in her file in 2012. The California Bar also issued a private reproval against McKowan in 2013.

McKowan’s misconduct, however, continued. In May 2013, she sent an email to the father of another child who claimed Ayres had molested him and lied about Balfour’s earlier accusations against her. She wrote: “Every agency that has been forced into investigating this case by (Victoria) Balfour has found that her accusations are entirely false and have no bases whatsoever.”

Robert K. Sall, special deputy trial counsel for the State Bar, said McKowan’s email contained information that the prosecutor knew was not true, and Sall lodged additional disciplinary charges against her. As reported in The Almanac, “[i]n the complaint, Mr. Sall says that neither the DA nor the state bar found that accusations by Ms. Balfour, a victim’s advocate, to be ‘entirely false’ or to have ‘no bases whatsoever,’ adding that Ms. McKowan ‘willfully violated Business and Professions Code … by engaging in dishonesty and moral turpitude.’”

McKowan ultimately agreed to the reproval after admitting that she had engaged in “misrepresentation.”

Balfour, who has “been credited for shedding light on Ayres’ crimes after a victim confided in her,” blamed the District Attorney’s Office for what she described as delayed accountability.

“This all could have been avoided seven years ago had the DA not ignored my complaints,” Balfour said. “This is about victims’ rights and having the victims be treated with respect. It shouldn’t have to be this hard to get the DA’s office to be held accountable for its actions.”

As part of the settlement, McKowan is prohibited from commenting on blog posts or social media about the Ayres case. She is still a deputy prosecutor in the office of Steve Wagstaffe, who said it wasn’t appropriate for him to comment.

Brooklyn district attorney candidates spar for title of ‘most progressive’

Waseem Salahi

Brooklyn district attorney candidates spar for title of ‘most progressive’

In Bedford-Stuyvesant’s historic Mount Pisgah Baptist Church on Tuesday night, candidates vying for the Democratic nomination in the race for Brooklyn’s next district attorney gathered to compare their progressive track records and reform-driven plans. The forum, hosted by Faith Over Fear, a “faith and justice coalition,” focused heavily on police accountability, the protection of immigrants, cash bail, and racial disparities in the criminal justice system.

“I’m the true progressive candidate in this race,” candidate Marc Fliedner, a former homicide prosecutor, told the audience as he described his primary goals for Brooklyn.

Fliedner’s tone and versions of his claim were reiterated by candidates throughout the night as they answered questions, gratifying a crowd that cheered for answers that seemed to reflect an understanding of racism and inequity in the criminal justice system. Anne Swern vowed to make change happen on “day one,” and later noted that she would assess who in the office is “being unfair” and remove them.

“I will not only talk about reform, but I will actually do reform,” said Swern. The candidate, who has worked for both the district attorney’s office and Brooklyn Defender Services, later said she thought “this whole forum could be about racial disparities.”

Patricia Gatling, the former commissioner for the city’s Commission on Human Rights and assistant district attorney to former Brooklyn District Attorney Charles Hynes, also emphasized a desire to tackle disparities in prosecution and policing.

“Justice must be meted out fairly across the borough,” said Gatling. “Not just in black neighborhoods, not just where poor people live. That is the problem.”

Gatling’s responses also indicated an interest in increasing the transparency of the office, including making more data and transcripts publicly available on the office’s website.

New York City Council member Vincent Gentile said as Brooklyn’s next District Attorney, he would draw on his strong relationships with labor unions. (The proposal garnered meek applause.)

The elimination of cash bail, particularly for defendants facing low-level, nonviolent crimes, was a more divisive topic. Candidate Ama Dwimoh said she wouldn’t support its use it for low-level offenses, and Fliedner said he wanted to end the use of cash bail “throughout the country,” and noted he wouldn’t “take money from bail companies,” referring to Acting District Attorney Eric Gonzalez’ choice to accept campaign contributions from bail bond companies. (Gonzalez later returned the money, and did not respond to Fliedner’s comment.)

Gatling agreed that the use of cash bail is problematic, and suggested she would increase the use of ankle monitors for pretrial supervision in lieu of detaining people. Gentile stopped far short of agreeing that the use of cash bail should end, saying instead that he supported its reform and believed the state should “mandate that judges have before them the financial status of the defendant” when making pretrial decisions.

Tension escalated when candidates were asked if they believed people of color are punished disproportionately in Brooklyn. None dared dispute the claim — though Gentile suggested the borough needed better data collection on racial disparities in prosecutions before he could create a “roadmap” for change.

Fliedner, who is white, noted that slavery is America’s “original sin,” before announcing that he would say something “nobody else at this table says out loud … Black lives matter. I say it, I’ve marched.” The crowd cheered, but Dwimoh was less pleased.

“I don’t have to say, ‘Black Lives Matter,’” Dwimoh retorted. “I am a black woman in America. I live it. You sit here and say I have to ‘say it?’ How dare you.”

The crowd roared. Gonzalez also reminded the audience that his experience as a Latino man and his Brooklyn upbringing, during which he felt “over-policed and underserved,” gave him insight and empathy into the experiences of young men of color in Brooklyn. The acting district attorney leaned heavily on his close relationship to former District Attorney Ken Thompson, whom he replaced after Thompson’s death in 2016, and projected a broad message of “safety and fairness” as his primary goals.

One audience member asked the contenders if they thought any “broken windows” offenses should be prosecuted.

Dwimoh said she would never prosecute any of those minor offenses, such as public urination, littering, and low-level transit-related crimes. She noted that as a policy, “broken windows” disproportionately impacts black and brown New Yorkers — “people that look like me.” Fliedner agreed, observing that “broken windows” policing can be “inconsistent with public health policy,” such as targeting people struggling with substance abuse for possessing syringes, or using the possession of condoms as a pretext to arrest sex workers.

Fliedner also pointed out that the prosecution of “broken windows” offenses can endanger immigrants: “There are ICE teams waiting in the criminal courts to apprehend [immigrants] and take away their lives.”

Swern called “broken windows” a “failed policy” that “fosters fear” in immigrant communities. Gonzalez dodged the “broken windows” question, diverting the conversation to the work he has done to shield immigrants from deportation, such as hiring immigration attorneys.

“My obligation is to protect the people of Brooklyn no matter where they came from, or how they got here,” said Gonzalez.

While some candidates emphasized past and current connections to the Brooklyn District Attorney’s Office, implying those relationships would be beneficial, Gentile pointed out that he is “the only one with no connections” to the office — a separation that he said would help him create a fresh start, with no allegiances to tiptoe around. In a similar vein, Dwimoh reminded the crowd that she was the only candidate that had always supported Thompson, but never Charles Hynes, who held the office for 24 years before losing to Thompson in November 2013. (Hynes was accused of illegally spending money seized by his office from drug dealers on his campaign, though prosecutors ultimately dropped the investigation.)

New York City’s primary election is on September 12th. With no Republican competitors on the ballot, the candidate that wins the primary will presumptively be Brooklyn’s next District Attorney.

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#SwipeItForward & the Decriminalization of Farebeating in New York City

Activists in New York City are engaging in profound acts of resistance against over-policing in the subways. Politicians are listening, but are they really hearing them?

#SwipeItForward & the Decriminalization of Farebeating in New York City

Activists in New York City are engaging in profound acts of resistance against over-policing in the subways. Politicians are listening, but are they really hearing them?

If you are a New Yorker who commutes by subway, perhaps you have seen them in the last two years: activists gathering at subways stations and offering free Metrocard swipes as people approach the turnstiles. As they “Swipe It Forward” in neighborhoods with high concentrations of people of color and immigrants, these members of a coalition of grassroots groups hand out flyers about broken windows & quality-of-life policing, drawing attention to the widespread use of arrests, summonses, and criminal prosecutions against people of color for turnstile jumping, walking through exit gates, and other methods of taking public transportation without paying the $2.75 fare.

Swiping It Forward is legal. The terms of service of an unlimited Metrocard do not preclude swiping someone else in after your own trip is finished. And therein lies the profound power of the practice: through a legal act of kindness, communities of color engage in direct resistance to New York Police Department (NYPD) practices by removing the legal justification for a police officer to stop, search, ticket, or arrest a poor New Yorker who has entered the subway without paying.

After the declared end of stop-and-frisk in 2014 with the election of Mayor Bill de Blasio, the primary mechanism of police contact with poor and minority New Yorkers is through targeted arrests for low-level quality-of-life offenses like turnstile jumping, or theft of services, a misdemeanor punishable by up to a year in jail. In 2016 alone, there were almost 27,000 NYPD arrests for theft of services, almost 92 percent of which were of people of color. Theft of services is the second-most common charge at both arrest and criminal court arraignment throughout New York City, and can lead not only to up to a year in prison, but also to possible deportation and other collateral consequences.

But even if an arrest does not lead to a ticket or prosecution, the NYPD practice of staking out subways stations (often by hiding behind polls or doors) allows them to stop, frisk, and search people who enter without paying, potentially leading to the use of force as well. According to a report from the Inspector General for the NYPD, quality-of-life summonses and arrests are concentrated in precincts with higher proportions of residents of color, males aged 15–10, and residents of public housing. In short, quality-of-life policing provides constitutional cover to the mass policing of people of color in New York City.

Swiping It Forward takes away this power, if only temporarily. Without probable cause to believe a crime such as theft of services has occurred, a police officer cannot constitutionally stop, frisk, or search someone. I have written about the ways in which such communal acts of intervention can change the power dynamics between the police and poor people of color. Like mass bailouts or organized cop-watching, the practice of Swiping It Forward is a form of democratic intervention in everyday criminal justice from the bottom up. The intention of these movement actors is not simply to help individuals get on the subway without paying, but also to disrupt the normalcy of arrests. The practice lays bare the ways in which those arrests function to perpetuate structural inequalities along lines of race and class. Even the motto of #SwipeItForward — “If you See Someone, Swipe Someone” — reclaims the power of ordinary people to help each other: here, not by reporting suspicious people to the police (the purpose of the MTA’s slogan “If you See Something, Say Something”), but rather by taking away the ability of the police to stop and arrest people in the first place. As one activist explains, “The beauty of this action is that the cops can’t do anything about it . . . it’s still resistance, but it’s within the law, so they’re just stuck.”

Politicians have responded to these acts of resistance. The summer of 2017 has seen a series of mixed reactions to the growing discontent with the criminalization of farebeating in New York City. Manhattan District Attorney Cy Vance and Brooklyn Acting District Attorney Eric Gonzalez have both announced that they will stop prosecuting many theft of services cases in criminal court. And two state lawmakers from Brooklyn have announced their intention to introduce legislation in Albany that will make farebeating a non-criminal offense punishable by a $100 fine. (Specifically, they would remove subways, buses, and railroads from the current theft of services statute, leaving in place the existing civil offense.) As State Senator Jesse Hamilton stated in a report released in conjunction with the announcement, “criminal records and jail time should not be the result of an inability to pay a transit fare.”

But will these responses truly change the criminalization of poverty in New York City? The activists from the Coalition to End Broken Windows, the co-organizers of #SwipeItForward, think not. They are frustrated that the District Attorney proposals would maintain state supervision and punishment of poor people for their inability to pay subway fares, through either civil summonses or “diversion” programs. Under Vance’s plan, for instance, the office will only charge people with theft of services if “there is a demonstrated public safety reason to do so,” and otherwise will offer those arrested for theft of services “pre-arraignment intervention opportunities,” including arts-based programs for youth. What local District Attorneys have not proposed, though, is simply declining to prosecute such arrests without required programs, fines, or interventions.

Activists also feel that the proposed state legislation to decriminalize farebeating does not go far enough. In a press release following the announcement from State Senator Hamilton, the Coalition to End Broken Windows said, “While ‘decriminalization’ is a sounder step than what city officials have offered, the Coalition rejects the notion that summonses or other non-arrest alternatives are an acceptable outcome to the issues that plague working people: thousands of us literally cannot afford public transportation.” (The Community Service Society of New York recently documented the struggles of the working poor to afford rising subway fares.) These grassroots groups who #SwipeItForward wonder: why not simply stop arresting poor people for their inability to pay?

Indeed, the proposed partial decriminalization of misdemeanors envisioned by District Attorney Vance, State Senator Hamilton, and others has a dark side: as Professor Alexandra Natapoff has argued, it can lead to a net-widening effect in which police feel free to arrest more poor people of color because they know that those arrests will not lead to jail or a criminal conviction. According to Natapoff, “decriminalization offers ways of maintaining, even expanding, the criminal system as a governance mechanism for a wide range of social behaviors and environments.” Of course, neither the state senate nor local district attorneys control the NYPD. And Mayor de Blasio, for his part, has doubled down on the criminalization of farebeating, declaring that “there’s no way in hell anyone should be evading the fare.” But in neither the proposed state legislation nor the new district attorney policies is even the suggestion that New York City should not use city resources to stop, detain, and process individuals for taking the subway without paying.

There is another approach, one that grassroots groups such as those that make up the Coalition to End Broken Windows are helping make visible. Instead of spending city dollars on stakeouts at subways entrances, we could instead invest in the futures of these same neighborhoods through other government services: free Metrocards for low-income New Yorkers, more public housing, better public education. This “Invest/Divest” strategy is echoed throughout the country by grassroots groups led by people of color demanding a transformation in how local governments prioritize spending in their neighborhoods. And meanwhile, in New York City, activists continue to #SwipeItForward, pushing us all that much closer to hearing their call to end the criminalization of poverty in New York City.

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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