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County attorney drops eight criminal cases due to an illegal search by New Jersey cops

The officers’ credibility is under fire.

The Bergen County Courthouse in Hackensack, New Jersey

County attorney drops eight criminal cases due to an illegal search by New Jersey cops

The officers’ credibility is under fire.

Gurbir S. Grewal assumed his role as the top prosecutor in Bergen County, New Jersey in January, and he’s already making headlines for doing what too few county and district attorneys are willing to do: emphasize justice instead of the fierce desire to convict. According to court records obtained by The Bergen Record, Grewal dropped eight criminal cases against 17 defendants in July, because of alleged officer misconduct.

The legal drama began in December, when seven officers from the Hackensack Police Department allegedly investigated “narcotics activity” in an apartment building and broke into a unit “without a search warrant or other legal justification,” the records say. All but one were in plainclothes, and they were not sent there by a dispatcher. The group entered the unit after an officer picked open the lock on the front door. Surveillance later showed the group improperly handling evidence as well.

The sequence of events differed drastically from the one described by an officer who was at the scene.

After the search was conducted, Detective Mark Gutierrez submitted an investigation report that was ultimately found to contain falsified information. He said he and other narcotics officers were looking into possible drug activity at an apartment building when the group was informed by an anonymous source that a child may have been alone in one of the units there. Gutierrez also wrote that the officers entered the apartment when they realized it was unlocked and nobody was coming to the door. His report was verified by a colleague who was also present during the illegal search.

The Internal Affairs office within the police department later discovered those details to be untrue. It launched an investigation of the search when a letter from an anonymous source was found in the office’s mailbox. “Captain Riotto and his boys covered up 64 Prospect Ave, the reports are full of lies!!!” the source wrote. “You think your guys got away with it, we know what really happened.” After some digging, Internal Affairs investigators discovered various inconsistencies between Gutierrez’ telling of the story and what actually happened. In May, the officers were suspended for launching the illegal search, lying about it, and mismanaging evidence at the scene.

The illegal search cast doubt on the integrity of other criminal cases the officers had a hand in. As a result, Grewal ultimately decided that those cases had to be thrown out altogether.

“We do not take the decision to dismiss criminal charges against seventeen criminal defendants lightly, but the conduct of the Subject Officers leaves us no other choice,” Grewal informed the police department last month. “Simply put, their conduct undermines their credibility as law enforcement witnesses.”

Police officers and prosecutors have a co-dependent relationship, working together to make arrests, gather evidence, and build criminal cases against defendants. It is a partnership that requires trust, and often results in one group turning a blind eye when the other breaks the rule of law. The decision to drop criminal cases and question the credibility of police officers in such a public way is a bold one for Bergen County’s top prosecutor, who has only been in office for seven months.

The eight criminal cases weren’t the only ones to be thrown out due to officer misconduct this summer. A similar decision was recently made by County District Attorney Kristen Barnebey in Aransas County, Texas. Barnebey announced her office will not accept any criminal cases from the Rockport Police Department due to evidence suppression. She will only take cases when Rockport officers show a commitment to the rule of law.

But even though it is the responsibility of all prosecutors, including district and county attorneys, to ensure that criminal cases are fair and just, both Grewal and Barnebey are the rare ones willing to do so — despite possible fallout.

In Bergen County, one of the officers accused of misconduct, Det. Rocco Duardo, is suing Grewal and the Prosecutor’s office, Hackensack police, and the City of Hackensack for allegedly labeling him a “Brady officer.” It’s a label used to describe officers who are dishonest on the job and consequently flagged for prosecutors as people who could undermine a case.

“This is just a hang-job,” Duardo’s lawyer told the news organization. “The worst-case scenario for these cops is they were over-zealous in engaging in their police mission … no one’s alleged to have stolen anything, no one’s alleged to have engaged in any kind of personal gain with this.”

Oregon makes drug possession a misdemeanor over prosecutor objections

Oregon makes drug possession a misdemeanor over prosecutor objections

The state of Oregon has made drug possession a misdemeanor over the objections of multiple district attorneys in the state.

The new law went into effect as soon as Governor Kate Brown signed it earlier this month. It makes most instances of first-time simple possession of illegal drugs — including cocaine, heroin, and methamphetamines — a misdemeanor rather than a felony.

The change in classification from misdemeanor to felony will have a dramatic impact on the maximum prison sentence that someone could face if convicted. Under the new law, the maximum term of incarceration is one year. When classified as a felony, the maximum sentences often ranged from five to ten years.

The law was passed in the hope of shifting focus from criminalizing drugs to helping drug addicts get treatment — and ultimately keeping more people out of prison.

“We are trying to move policy toward treatment rather than prison beds,” said state Sen. Jackie Winters, who supported the bill. “We can’t continue on the path of building more prisons when often the underlying root cause of the crime is substance use.”

Some law enforcement groups backed the legislation. According to the Associated Press, “Among the law’s supporters were the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association, which said felony convictions include unintended consequences, including barriers to housing and employment.”

But the law enforcement organizations warned that the new law would only work if additional drug treatment resources were made available.

Prosecutors will still be able to charge drug possession as a felony if the person arrested has a prior felony conviction or two or more drug convictions. Prosecutors can also seek felony charges if the amount of drugs in question exceeds the law’s definition of “personal use” amount. For example, more than two grams of cocaine or methamphetamine, more than one gram of heroin, and more than 40 pills of oxycodone would not qualify as “personal use” amount.

While law enforcement voiced support, state prosecutors came out strongly against the law.

Clatsop County District Attorney Josh Marquis, who spoke out against the law when legislators were considering it, complained that drugs possession was now being treated like shoplifting.

Marquis argued that prosecutors before could use the threat of a felony as leverage to force defendants to seek treatment. With the reclassification, Marquis says, that leverage is now gone.

“We know that people don’t seek treatment until they either bottom out or they have no choice,” Marquis said. “By making it a felony, it does threaten people with some consequences.”

Linn County District Attorney Doug Marteeny also opposed the law, saying that possession of dangerous drugs like cocaine, heroin, and methamphetamine was too serious a crime to be treated as a misdemeanor.

“To change the classification of this behavior from a felony to a misdemeanor is tantamount to telling our schoolchildren that tomorrow it will be less dangerous to use methamphetamine than it is today,” Marteeny wrote.

But the numbers don’t appear to support the theory — or Oregon’s previous practice — of locking up this group of offenders. Moreover, the prosecution of felony drug possession in Oregon skewed heavily toward over-prosecuting and over-punishing people of color.

A study by the Oregon Criminal Justice Commission found that blacks were convicted of felony drug possession at double the rate that whites were in 2015. The study also revealed that Native Americans five times as likely as whites to be convicted of felony drug possession.

A 2016 report from the Sentencing Project found that Oregon has the seventh-highest incarceration rate in the country for black males. Although blacks make up approximately two percent of the state’s population, they constitute 10 percent of the people who are locked up.

It remains to be seen whether, as state law enforcement has openly questioned, Oregon will provide the resources necessary to effectively move away from an incarceration-focused approach to a treatment-focused approach. And, further, whether the racial disparities that have marked Oregon’s treatment of drug offenses will persist.

Thanks to Jake Sussman.

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Reform candidates come under attack in Contra Costa County District Attorney selection process

Contra Costa County Courthouse, Martinez, CA

Reform candidates come under attack in Contra Costa County District Attorney selection process

At two recent public forums, candidates to become Contra Costa’s interim District Attorney focused mostly on the degree to which their views and proposed policies aligned with Contra Costa County’s solidly progressive constituents’. But the selection process took an unexpected turn on Friday when local news outlets reported that two finalists — Superior Court Judge Diana Becton and Assistant District Attorney Tom Kensok — had failed to attribute portions of their applications to the proper sources.

Becton borrowed language from Sen. Rand Paul and Sen. Kamala Harris’s recent New York Times column advocating for bail reform. Kensok pulled information from a Harvard Business Review article and also pulled material from implementation guides designed for violence reduction programs and mental health programs. Both told the East Bay Times that they should have cited the material, and that they weren’t trying to suggest the words were their own.

In Becton’s case, it is unknown who discovered the borrowed passages; several county officials said they received anonymous mailings alerting them to unattributed work in Becton’s application. Radio station KQED discovered Kensok’s unattributed work after subsequently examining the other applications.

In an interesting coincidence, both Becton and Kensok have emerged as the applicants most likely to shake things up in the office and advance progressive policies as district attorney. Both have voiced support for bail reform, reducing mass incarceration, and scaling back the use of excessive punishments within the county.

And as those two applicants have come under attack, conservative finalist Paul Graves, a deputy district attorney within the office, has benefited. After receiving the endorsement of a handful of private criminal defense lawyers, he picked up the endorsements of the East Bay Timesseveral local law enforcement units, and the Contra Costa Deputy District Attorney’s Association.

Graves would seem an unlikely selection for Contra Costa County, which has consistently voted in favor of criminal justice reform. Graves has consistently tacked to the right of the other four finalists in the competition to replace the disgraced former district attorney Mark Peterson, who resigned earlier this year after pleading no contest to one count of felony perjury after using $66,000 in campaign funds for personal use.

Peterson was sentenced to three years probation and 250 hours of community service. He also faces possible disbarment.

The Contra Costa County Supervisors now must pick a replacement district attorney who will serve until June 2018 when the next election is scheduled. The other two finalists are Santa Clara County Deputy District Attorney Patrick Vanier and Judge Danielle Douglas.

All five candidates will appear before the Board of Supervisors in September. The five-member Board will then select the interim district attorney, though their method of selection remains unclear.

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