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DA’s Loss in Texas Primary Pinned to Prosecutorial Misconduct in Biker Shootout Case

Motorcyles in the parking lot of the Twin Peaks restaurant after a shootout between biker gangs
Erich Schlegel / Getty

DA’s Loss in Texas Primary Pinned to Prosecutorial Misconduct in Biker Shootout Case

Half the challengers to Texas’s sitting district attorneys were successful earlier this month in what criminal justice reformers are calling a promising sign that their message is working. Seven out of 13 incumbent DAs, a mix of Democrats and Republicans, lost their primaries. The Texas District and County Attorneys Association (TDCAA) argues this turnover reflects typical political fluctuations rather than reform momentum. But one particular loss Tuesday night indicates that people may be paying more attention to abuses in the courthouse.

Texans voted to oust incumbent McLennan County DA Abel Reyna after eight years. The loss seems connected to Reyna’s mishandling of a high-profile Waco biker shootout in 2015.

Barry Johnson, who beat Reyna in the Republican primary, made the bungled prosecution of more than a hundred bikers a central issue of his campaign. The years since the shootout, he argued, have been marked by misconduct, suppressed evidence, and overreach.

According to the official story, two rival motorcycle gangs got into a turf war outside a local Twin Peaks restaurant, and then turned their guns on police officers who tried to intervene. Nine of the bikers were killed in the shootout and 20 more were wounded. But investigative reporters have cast doubt on this narrative, suggesting instead that police overreacted to a small skirmish and escalated the fight. Police were responsible for at least four of the nine deaths, according to evidence obtained by the Associated Press.

Police arrested 177 people at the restaurant, including some who were hiding in the bathroom during the fight and three bikers who arrived after the shooting was over. A federal lawsuit later alleged that Reyna had ordered the mass arrests and prepared a “cookie-cutter” affidavit regardless of the evidence against individual bikers. A justice of the peace set bail at $1 million for every single arrestee “to send a message,” in his words. Many were stuck in jail for weeks without a lawyer.

Reyna’s office ultimately pursued charges against more than 150 bikers under the argument that even individuals who weren’t involved in the fight were guilty by their attendance alone. More than 100 bikers have since sued Waco for wrongful arrest. Their cases could cost the city more than a billion dollars.

Prosecutors were caught repeatedly withholding evidence during the first and, thus far, only biker trial. A Texas Ranger relayed that Reyna had specifically instructed him to keep evidence away from the defense team.

“At one point in the trial, [the defense attorney’s] discoveries of withheld evidence had become so regular that [the judge] ordered Reyna to instruct his prosecutors and all law enforcement agencies involved in the Twin Peaks investigation to go back and search their files to make sure all materials had been disclosed to the defense as required by law,” the Waco Tribune reported.

That trial ended with a deadlocked jury in November. Since then, Reyna has dismissed more than 50 biker cases and recused his office from another to avoid a disqualification hearing. The bikers’ defense attorneys subpoenaed several of Reyna’s employees and a retired police detective to testify about the DA’s misconduct and corruption.

Reyna’s ousting is all the more remarkable given how rarely prosecutors face any kind of consequences for misconduct. But the Waco biker shootout was unusual in two important ways. While the vast majority of gang prosecutions target black, Latino, and Asian defendants, the Waco bikers are predominantly white. Hundreds of other white bikers came from all over the country to protest their treatment. The media attention to the shootout itself also helped draw top defense attorneys and resources to the bikers’ cause. The bikers’ attorneys were able to challenge Reyna’s office every step of the way and devote resources to uncovering evidence of misconduct.

In comparison, most Texas defendants’ access to quality attorneys is spotty at best. The state relies on counties to provide funding for indigent defense, and many counties charge poor defendants for the service. Waco has even sent detectives to indigent defendants’ houses to verify they were poor enough to ask for a court-appointed lawyer, effectively intimidating some into waiving their right to an attorney. Thanks to this system, prosecutors’ violations largely go unnoticed and unchecked.

Tough-on-crime campaigning is far from obsolete, but it’s no longer the guaranteed win it once was. Despite his highly publicized missteps, Reyna’s re-election campaign focused on the strength of his biker prosecutions. He even used footage from the shootout in political ads on TV and social media, landing him in front of a judge the eve of Election Day for violating a gag order.

“The way you have handled this case is absolutely shameful and misleading to the citizens of this county,” Visiting Judge Doug Shaver told Reyna in court. “I know the election is tomorrow, and we can’t do anything about it up to this point. But you should be ashamed of yourself.”

Correction: This story has been updated to note that Reyna served eight years, not eight terms.

Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’

Activists protest marijuana arrests in New York City
Andrew Burton

Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’

I love New York.

It’s my favorite city in the world. I live and work here by choice.

We get a lot of things right. Every day I walk down the street or hop on the subway, I am reminded that I am a citizen of a very big, incredibly diverse world.

But our progressive reputation in New York often far outpaces our reality.

Regularly seen as one of the most liberal cities in the world, we have a liberal Democrat as mayor and a City Council with 47 of 51 positions held by Democrats. That’s how I know that the ugliness of America’s justice system is not a conservative problem. If that were the case, New York’s justice system would be a model for the world.

It isn’t. In fact, for decades now, this city has been a model for how not to be.

What’s weird is that the city leaders here so often claim otherwise.

No issue typifies this gap between reputation and reality more than the quiet scandal of this city continuing to arrest, charge, and convict people of color for low-level marijuana offenses.

In spite of committing to simply ticketing people for possession of small amounts of marijuana, last year the NYPD arrested an astounding 16,925 people for it. These were not drug lords and kingpins. These were the very low-level offenses they said they’d stop arresting people for.

Do the math. That’s 46 people a day. It’s an enormous waste of time and resources. And it’s horribly disingenuous to publicly make the claim that the arrests are coming to an end when clearly they aren’t.

This literally makes New York City “the marijuana arrest capital of the world,” according to a recent report from the Drug Policy Alliance. And a staggering 86 percent of those arrests are of men and women of color.

And let’s be clear — whites and people of color use drugs at roughly the same rate. Some studies even show that whites actually sell drugs at a higher rate, but people of color make up 86 percent of the arrests here in New York nonetheless.

This is a scandal. And Mayor Bill de Blasio and the NYPD continue to contort themselves to blame anything they can possibly think of other than institutional racism for this racial gulf in arrests and prosecutions.

De Blasio criticized the Drug Policy Alliance report, pointing out that marijuana possession arrests dropped by 37 percent between 2013 and 2016. But that doesn’t explain away the nearly 17,000 arrests last year.

NYPD Chief James P. O’Neill recently said they were making the arrests because people don’t like the smell. Really, man? How about we start arresting people for farts too? Arresting people because someone doesn’t like the smell? That’s not even a good lie.

This is one of many examples of city leaders here in New York talking the talk and just not walking the walk. Every time one of those ridiculous arrests is made, it sends that person down an outrageous rabbit hole in which they must now pay bail to get out, potentially get sent to the hell hole we know as Rikers Island, lose their jobs, be taken away from their families where they then miss things like birthdays and funerals. They then run the risk, again for something the city said they’d stop doing, of ultimately getting a criminal record for the very thing white people are doing with virtual impunity all over this city.

District attorneys have continued to prosecute these offenses as well. Bob Gangi, director of the Police Reform Organizing Project, said that despite DAs’ promises to lighten up on marijuana possession, PROP’s court monitors still see possession cases every time they’re in court. “If [prosecutors] were serious about challenging the racial bias in NYPD tactics and the harm that broken windows policing inflicts, they would decline to prosecute virtually all marijuana possession arrests,” Gangi told The Appeal.

This isn’t just bad politics, or bad optics — lives are being ruined. This isn’t even a war on drugs — it’s a war on people — Black and brown people — all over New York City. I’m embarrassed. It’s a human rights debacle.

Not only that, it’s horrible business. In addition to the untold tens of millions of dollars it costs to arrest, book, prosecute, and house people arrested for smoking weed, exponentially more money is then lost in potential tax revenue that could be quickly generated if this city simply caught up with other cities, states, and countries around the world.

By one conservative estimate, New York could bring in $156.4 million per year in additional tax revenue if marijuana was legalized. Translation: That’s a ton of money that could be used across this city for education or new rec centers and after-school programming. That money could be used for smart reforms to our local justice system to help fund diversion programs and the rehab centers our city so desperately needs. We’re talking about over $1.5 billion of revenue that would be generated over a decade.

Studies now show that more marijuana is consumed in New York City than any other city in the world and instead of seeing this as a growth opportunity for business and taxes, it continues to be treated as an opportunity for mass incarceration and racial profiling.

Ultimately, I chalk this up to a peculiar sense of complacency among so-called liberals and Democrats who have all of the power in the world to do better, but choose not to. And let’s not kid ourselves — these are choices. The 17,000 annual arrests of people the city said they’d leave alone are 17,000 unique choices. Passing up billions in tax revenue for something that is already being done all over the country is a choice.

And politicians can and should be held accountable for their choices.

Thanks to Keli Young.

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NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids

NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids

New York Governor Andrew Cuomo recently unveiled a legislative proposal packaged as part of a budget amendment to expand already onerous residency and presence restrictions for some sex offenders in New York.

The proposal expands blanket presence and residency restrictions for sex offenders who are on parole or post-release supervision by vastly increasing the number of places they cannot be near. It would outlaw the presence of some sex offenders within 1,000 feet of school grounds, “any facility or institution that offers kindergarten or pre-kindergarten instruction,” or any other place that is “used for the care or treatment” of minors. The proposal also prohibits level 2 and 3 sex offenders — those whom the state deems most at risk to re-offend — from staying at homeless shelters that serve families, even if they are no longer under supervision.

In dense urban environments like New York City, such restrictions — which make it illegal for sex offenders to merely exist in many places — are tantamount to banishment. While sex offender registries (and many of the restrictions that go along with them) have proven to be ineffective and inhumane, public defenders, experts, and advocates say that few restrictions are as ineffective and punitive as those proposed by Cuomo.

“It’s hard to believe that we are debating banishment as an acceptable public safety measure in 2018,” Christina Swarns, attorney-in-charge of New York’s Office of the Appellate Defender, which provides appellate representation to individuals convicted of felonies, told The Appeal. “This conversation is particularly absurd given the overwhelming evidence that people convicted of sex offenses are more likely to re-offend when isolated and denied medical, social and economic supports. Banishment is a punishment that should remain in the dustbin of history.”

The theory behind the restrictions advanced by Cuomo is that by banishing people convicted of sex crimes from places where children are present, children will be safer. Proposals like Cuomo’s operate on the assumption that sexual offending is perpetrated by serial predators roaming the streets, but the data demonstrates that sex offenses far more commonly take place within the confines of families, relationships, schools, and workplaces — where victims know and trust their perpetrators. It is social proximity, not geographicproximity, that facilitates the majority of sex crimes.

While proponents of the Cuomo proposal suggest it targets those deemed most likely to re-offend, Lauren Stephens-Davidowitz, a supervising attorney with the Office of Appellate Defender, told The Appeal that the risk assessment tool used by New York State has never been subject to scientific scrutiny. For example, it treats a sex offender’s status as a juvenile as an aggravating (rather than mitigating) factor in assigning a risk level. So it’s unclear if the risk levels assigned by authorities, such as the Level 2 and 3 categories, are based on criteria that are scientifically sound.

Further, the research conducted on geographic restrictions like those proposed by Cuomo demonstrate that they do not succeed at their goal of increasing public safety by preventing sexual offenses. Worse than being merely ineffective, policies that force out people who are most in need of services and support, like those on the sex offender registry, actually make re-offense more likely. “The evidence is fairly clear that residence restrictions are not effective,” according to a 2015 Department of Justice research brief on sex offender management. “In fact, the research suggests that residence restrictions may actually increase offender risk by undermining offender stability and the ability of the offender to obtain housing, work, and family support. There is nothing to suggest this policy should be used at this time.”

In addition to pushing people out of their communities, they also prevent prisoners from being released back into them. Swarns of the Office of Appellate Defender told The Appeal that there are an unknown number of inmates who in custody past their serve-out dates because they cannot provide a residential address that complies with existing residency restrictions on sex offenders. In 2016, New York’s Legal Aid Society and several other organizations sued state and city officials for holding nearly 200 people past their maximum sentence since 2014. If Cuomo’s proposal is passed, it seems likely that this problem will only become worse.

Courts, however, are beginning to show an increased willingness to strike down such restrictions on sex offenders. In 2015, a unanimous Massachusetts Court of Appeals observed that “the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst.” Also in 2015, the California Supreme Court overturned blanket residency restrictions applied to sex offenders, noting that they “greatly increased the incidence of homelessness” amongst people on the registry. In 2016, the federal Sixth Circuit Court of Appealsstruck down several aspects of Michigan’s sex offender registry and noted that it “consigns [the plaintiffs] to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.”

Despite court rulings, scientific research, and even an admonition from the Department of Justice, geographic restrictions on sex offenders continue to be supported by politicians like Cuomo and New York State Senator Jeffrey Klein. Advocates, policy experts, and public defenders say that these policies are not based in fact or science and place not in my backyard politics over public safety.

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