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Did Prosecutorial Misconduct Result in the Indictment of an African-American Louisiana Couple in a Federal Drug Case?

Did Prosecutorial Misconduct Result in the Indictment of an African-American Louisiana Couple in a Federal Drug Case?

In the early spring of 2013, Yolanda and Jessie Smith, an African American couple, agreed to accept what they believed were packages of cancer medicine for a 58-year-old white man named Alvin Phillips, whom they knew from a pool hall in Waggaman, Louisiana, a tiny town comprised of about 10,000 residents near New Orleans.

The Smiths say they wanted to help Phillips because they believed him to be gravely ill — and they figured they owed him anyway. Around Christmas 2012, he paid an overdue electricity bill for the couple. But in May 2013, soon after agreeing to accept Phillips’s packages, rumors circulated in the pool hall that Phillips had been arrested. The Smiths suspected that perhaps they hadn’t been signing for packages of medicine at all. Phillips had changed his story multiple times. At one point, he told the couple that the packages contained birthday gifts for his son.

Both Yolanda and Jesse live with serious impairments — Jessie is on Social Security for a mental disability and can neither read nor write, and Yolanda has been diagnosed as bipolar, and suffered trauma and abuse as a child. Confused and scared when they heard that Phillips was arrested, they now figured the packages might contain drugs. Still, indebted to Phillips, they felt obliged to accept a package that was already on its way.

On May 30, 2013, Yolanda answered the door at her Dandelion Street home in Waggaman and signed for a package addressed to an “Alan Phillips.” She signed her name as “Patrice Phillips” because she believed that to sign for it, she needed to be a relation to Phillips, and took the package to an outside shed. Meanwhile, high overhead, a police helicopter followed her movements outside of the house. A few minutes later, postal inspectors, U.S. Customs and Border Protection agents, and members of the Jefferson Parish Sheriff’s Office stormed into Yolanda’s house and arrested her.

The postman who had delivered the package was actually a postal inspector performing a “controlled delivery” of drugs for a joint task force of local and federal law enforcement agents who had monitored every aspect of the transaction. In the package behind Yolanda’s house, federal agents found methylone, otherwise known as “Molly.” Methylone is a psychoactive drug with properties similar to those of MDMA (better known as ecstasy) and has become a popular street drug in recent years; witnesses later told Yolanda’s attorneys that Phillip was a high-profile Molly dealer in the area.

Customs and Border Protection had intercepted a package from China addressed to Phillips earlier that month, which led to his arrest. Cutting a deal with federal prosecutors, Phillips gave them the names of the low-income black households whose trust he had gained over the previous few months, and to whom he had been arranging deliveries of methylone in order to cover his tracks.

Yolanda was originally charged by state prosecutors with possession with intent to distribute methylone, but in October 2013, the task force returned to their home and served both Yolanda and Jessie with federal drug distribution charges. After her second arrest by federal agents, Yolanda admitted to the arresting officers that she suspected she might be receiving drugs, but had never opened any of the packages to make sure of it. Before that statement, Yolanda, along with the three other black defendants who received packages for Phillips, were indicted by a federal grand jury and each charged with two counts of conspiracy to distribute a controlled substance and one count of possession with intent to distribute. Despite being at the very lowest rung of a drug trafficking network, she was now facing several years in federal prison.

The next spring, days before trial, the three other defendants (along with Phillips) accepted plea deals. But Yolanda was never offered deals by the prosecutors from the U.S. Attorney for the Eastern District of Louisiana. Instead, both Yolanda and Jessie were hit with another grand jury indictment, narrowing the target of prosecution to just the couple, with the same distribution and possession charges lodged against them.

The court severed their two cases, and in early 2015, Yolanda was convicted on all three counts after Phillips and every other defendant who took a plea deal testified against her for the prosecution. Jessie, her husband, was acquitted on all charges when he went to trial over a year later. Yolanda was sentenced to 33 months in federal prison and served almost her entire sentence. Alvin Phillips was sentenced to 51 months, but only served 31.

How did Yolanda end up as the only person convicted at trial in a drug trafficking conspiracy that sparked an investigation involving federal agencies and state law enforcement? The answer is likely an overzealous U.S. Attorney’s office that has long faced accusations of significant prosecutorial misconduct, but has rarely been held accountable by the state and federal agencies meant to monitor this type of overreach.

Following the guilty verdict on January 23, 2015, Yolanda’s lawyer, Sara Johnson, began the appeal process. During the appeal process, Johnson received a document from the court’s sealed record that she had never been given or made aware of during Yolanda’s trial — a complaint from a member of the grand jury to the judge assigned to the case that a high-ranking federal prosecutor had “intimidated and successfully coerced the grand jury into returning an indictment.”

According to the unnamed member of the grand jury, this prosecutor had responded to the grand jury’s skepticism over the case against the Smiths and other defendants “with anger and derision.” Even after the grand jury voted not to hand down an indictment, the prosecutor persisted, telling the jurors he was “insulted” by their decision. Then, the grand juror claimed, the prosecutor “physically approached jurors (including himself) in an intimidating manner, sometimes coming face-to-face.” In his complaint to the judge, the juror claimed the jury only reversed its vote and handed down an indictment because of the threats of the prosecutor.

“The federal grand jury is perhaps the best example of an institution that is designed in a way that’s going to insulate misconduct that occurs,” Jennifer Laurin, a professor at the University of Texas School of Law, told The Appeal, noting that grand juries at the state level have taken more steps to loosen the secrecy surrounding their deliberations. “The federal grand jury is closed to all other than jurors and the prosecutors. There’s no judge there. No defense lawyer. Nobody with a committed position outside the government is observing.”

This creates a grand jury process where it’s rare for misconduct allegations to ever see the light of day.

“Absent a situation … like this where you actually have a grand juror coming forward and disclosing something that happened in secret, you’re unlikely to know what was going on in secret in order to argue that you should be able to know what went on in secret,” Laurin explained.

Meanwhile, outside of the grand jury process, prosecutors from the Eastern District have engaged in misconduct that has made national headlines.

Earlier this month, during Senate confirmation hearings for the Fifth Circuit Court of Appeals based in New Orleans, Trump-nominee and U.S. District Judge Kurt Englehardt had to answer questions about the Eastern District’s handling of the Danzinger Bridge case, where New Orleans police officers killed two black New Orleans residents and wounded several others in the days following Hurricane Katrina. Englehardt eventually vacated the convictions of four police officers after prosecutorial misconduct came to light. Prosecutors, including the Eastern District’s senior litigation counsel Sal Perricone, had repeatedly commented on news articles about their own cases under pseudonyms like “Henry L. Mencken 1951,” or “eweman,” creating what Englehardt deemed “a prejudicial atmosphere in the community, long before indictments came down, long before a jury could possibly be picked.”

Last week, Louisiana’s Office of Disciplinary Counsel recommended that Perricone receive a one-year suspension from practicing law for his comments, a decision that is exceptionally rare in a state with widespread instances of prosecutorial misconduct.

Laurin hopes the juror’s complaint in Yolanda Smith’s case will help expose other misdeeds. “This is conduct that is out of line,” she says. “If disciplinary entities do not take seriously these allegations when they actually do manage to emerge and approach them with the understanding that this may well be the tip of the iceberg, then you have a real problem on your hands.”

All of Smith’s appeals, which were based in part on prosecutorial misconduct, were unsuccessful. Tragically, while in federal prison, Yolanda’s mother passed away. She is currently living in a halfway house as part of her parole.

Smith’s attorney Sara Johnson filed a complaint about the prosecutor’s conduct with the U.S. Department of Justice’s Office of Professional Responsibility in June 2017 and followed up in August 2017, but received no response from the agency. Last week, The appeal contacted Kenneth Polite, the former U.S. Attorney for the Eastern District, who oversaw the prosecution of the case, with questions about the conduct of his office. Polite has since declined to comment, but on Tuesday, seemingly out of the blue, the Department of Justice finally informed Johnson that it had begun a “preliminary inquiry” into her complaint.

This story has been updated to specify that it is unclear when exactly Alvin Phillips began cooperating with federal prosecutors.

In ‘Anti-Trafficking’ New Orleans Strip Club Raids, Police Make No Trafficking Arrests

NOPD Chief Michael Harrison and Louisiana ATC Commissioner Juana Marine-Lombard at a press conference touting the raids.
NOPD Facebook

In ‘Anti-Trafficking’ New Orleans Strip Club Raids, Police Make No Trafficking Arrests

The New Orleans Police Department, the Louisiana State Police, and the Louisiana Office of Alcohol and Tobacco Control (ATC) have raided eight French Quarter strip clubs in the past 10 days. At a Monday press conference, both NOPD and ATC claimed the raids were the result of a multi-month, ongoing “human trafficking” operation, yet they also admitted they made no trafficking arrests, nor did they identify any victims of trafficking.

Instead, what the ATC alleged occurred inside the French Quarter strip clubs was not trafficking, but 28 counts of violating an administrative statute that forbids liquor license holders from “permitting any prostitute to frequent the licensed premises or to solicit patrons for prostitution.”

Of the arrests, ATC Commissioner Juana Marine-Lombard said, “Prostitution in and of itself is sex trafficking.”

But prostitution is not trafficking. Trafficking, as it is defined by the state of Louisiana and under federal law, requires force, fraud, and coercion; prostitution does not. In the same press conference, New Orleans Police Department Superintendent Michael Harrison admitted that he does not believe prostitution and sex trafficking “are one and the same.”

The raids on French Quarter strip clubs come after a multi-year campaign, led by youth homeless services agency Covenant House New Orleans, to link stripping with sex trafficking, an effort also backed by state and city lawmakers. During the recent raids, undercover agents entered the clubs, and according to ATC’s notices of license suspension, “observed a dancer known as [redacted by IJT] fully exposed [sic] her breast [and] vagina.” At another club, undercover agents said three different dancers “did touch, caress, or fondle [the undercover agent’s] genitals while employed at licensed premises.” Such conduct however, is not evidence of trafficking.

As a result of the raids, ATC suspended eight clubs’ alcohol and tobacco licenses, leading establishments such as Rick’s Cabaret and Rick’s Sporting Saloon, which have a common owner, to close their doors until their licenses are restored. Robert and Chloe Watters, the owners of those clubs, told In Justice Today they have 150 employees and more than 1,000 contract workers across both clubs.

Lyn Archer, an organizer with Bourbon Alliance of Responsible Entertainers (BARE), a group led by local dancers, slammed the raids. “We question the real motives behind such an effort,” she says, “and the lack of cohesion between departments, who each defined both ‘prostitution’ and ‘trafficking’ differently.”

At the press conference, NOPD Superintendent Harrison said the undercover investigations and raids were meant to be a “first step” to “end human trafficking.” And ATC Commissioner Marine-Lombard said, “We have no issues with the dancers.” But Penthouse Club dancer Devin Ladner tells In Justice Today that’s not how it feels for women working at the few clubs still operating in the city. “It’s a complete mess of paranoia,” she says. “Every single girl is paranoid and worried.” Even though the Penthouse Club was not raided, Ladner says, “I have never felt scared to go to work before … now I feel terrified.”

Another woman, who was working at Rick’s Saloon during the raid, provided a statement to BARE, later shared with In Justice Today. “In all honesty, it [was] the most degrading experience of my adult life, and I’m a dancer,” she wrote. “After it was over, I witnessed women weeping until they vomited. We gathered together and held each other after the raid, as some were profoundly shaken by the events of the evening.”

NOPD Superintendent Harrison said his agency’s mission was to protect women victimized by human trafficking — though the raids failed to identify any — but dancers say it was his department’s raid that victimized women. That’s certainly how the dancer at Rick’s Saloon during the raid described it to BARE. “To have grown men watch me dress and undress without my consent,” she wrote, “to photograph me half-naked on their personal cell phones, to laugh in our faces as we wept, and to corral us, like cattle, in areas with no cameras present is completely dehumanizing.”

Lyn Archer of BARE considers the approach dangerously misguided. “The raids have led to zero arrests of pimps, and zero instances of violence against women, other than those perpetuated by their own officers,” she says. “Bourbon Street workers could offer critical and sensitive information and help to uncover and stop violence, if only law enforcement could foster trust by demonstrating they are capable of treating us with respect.”

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After New York Sues Opioid Manufacturers, Drug Policy Experts Warn That Legal Action Won’t Save Lives

Mayor de Blasio (@NYCMayor) on Twitter

After New York Sues Opioid Manufacturers, Drug Policy Experts Warn That Legal Action Won’t Save Lives

New York City Mayor Bill de Blasio and Kentucky Attorney General Andy Beshear filed lawsuits last week against several pharmaceutical companies, including Purdue Pharma and McKesson Corporation, that manufacture and distribute opioid pain relievers, alleging that they are getting rich to the tune of $13 billion annually from an overdose crisis that kills 120 people each day.

“By suing Big Pharma, we will make them pay for the lives they’ve destroyed,” Mayor de Blasio tweeted on January 23. “We’ll force them to change their behavior and stop endangering Americans. This is a health emergency and New York City will hold Big Pharma accountable.” Similarly, Kentucky AG Beshear said his state is suing pharmaceutical companies like McKesson for “knowingly and intentionally” distributing huge quantities of opioids in small Kentucky towns, which he described as “reckless behavior [that] fueled our catastrophic drug epidemic that every community is facing.”

Nearly 200 similar lawsuits have been filed by cities and counties across the country, and they’ve become a relatively easy way for politicians to look like they’re addressing the crisis. But doctors, lawyers, and public health experts interviewed by In Justice Today are skeptical that such lawsuits are the best way to improve the conditions of people suffering and dying from addiction.

“In a state or large city like New York, there are a lot of regulatory and legislative levers you could be pulling” to address the overdose crisis, such as expanding access to medication-assisted treatment, says public health lawyer Corey Davis, deputy director at the Network for Public Health Law. “And that could happen much more quickly. Laws and regulations are also enforceable, and a much surer bet than suing a bunch of opioid manufacturers and distributors, hoping at some point you get money.” It could be years before a settlement between states and opioid companies is reached.

While de Blasio supports distributing the overdose-reversal drug naloxone and expanding access to treatment, he also favors a war on drugs approach to the crisis, which advocates say takes resources away from implementing proven public health solutions. As for Kentucky, the state does not let Medicaid pay for methadone — a substitute drug that has been used since the 1970s to reduce opioid withdrawal symptoms and cravings — resulting in financial barriers that prevent low-income people from receiving addiction treatment.

In a recent paper, “Reducing Harm Through Litigation Against Opioid Manufacturers? Lessons From the Tobacco Wars,” Davis and his colleagues argue that a big cash settlement with opioid companies “would likely not be the most effective solution for reducing future harm to the states’ citizens.” While the 1997 tobacco settlement — known as the Tobacco Master Settlement Agreement — led to some successes, like restrictions on advertising and the launch of public awareness campaigns about the harms of tobacco, it’s unclear whether it achieved its stated goal: reducing smoking rates and improving public health.

Davis and his colleagues contend that it’s more likely that increases in cigarette prices, thanks to higher taxes on the product, caused declines in smoking. Unlike tobacco, opioids are FDA-approved medications that play a vital role in pain management. “These are products that do good,” Dr. Jeff Singer, a surgeon and senior fellow at the Cato Institute, a libertarian think tank, told In Justice Today. “They are medications, and a totally different case than tobacco.” Singer says these lawsuits look like grandstanding by politicians “who want to appear to be taking action.”

Another major difference between tobacco companies and pharmaceutical companies is the complicated supply chain. Before pills reach the hands of patients, they must be prescribed by a doctor and then purchased at a pharmacy, often involving an insurance company payment. Those pills arrived at the pharmacies via distribution companies like McKesson, and were manufactured by companies like Purdue. With all of these intermediaries, should companies bear responsibility because some patients die after taking the prescribed drug or divert the medication to the black market?

After all, the vast majority of prescription painkiller deaths involve diverted medication that was used illicitly. Indeed, Singer points out that it’s heroin and illicitly manufactured fentanyl — neither come from a prescription — that are driving the overdose crisis. In 2016, almost three-quarters of overdose deaths in New York City involved heroin or illicit fentanyl. Similarly in Kentucky, over 80 percent of deaths involved heroin or fentanyl during 2016. “Collecting billions from opioid manufacturers isn’t going to stop nonmedical users from doing heroin,” Singer said.

Dr. Stefan Kertesz, a primary care doctor and opioid safety team member at the University of Alabama Birmingham School of Medicine, has a different concern. “If these cases hang on portraying every patient with chronic pain as falling prey to something that’s fundamentally harmful, they will tend to spur a continuing stampede of abandonment of these patients,” he says. “It’s not civilized to traumatize the most disabled people in America in the name of averting a public health crisis. Normally you protect those people.” Kertesz says he’s happy to see corporations punished for law-breaking, but “I don’t know whether that is going to save lives in the coming year.”

While Kertesz worries that the rhetoric against pharmaceutical opioids harms vulnerable patients, he thinks the lawsuits are worth it if settlement money helps local governments recoup spending on efforts like expanding treatment.

Mayor de Blasio is right that the overdose crisis is a health emergency. But state and local officials need to focus on actions they can take now, like hosting supervised injection sites and expanding access to medications that treat opioid addiction. A real, non-carceral, public health strategy must be implemented on opioids — the opposite of de Blasio’s NYPD approach on marijuana. Otherwise, they are repeating the empty gestures of the crack era, when officials offered false promises of solving social problems through the court system and mass incarceration.

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