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Houston Conviction and Death Sentence Goes to U.S. Supreme Court

Court watchers believe Justices will side with plaintiff

Houston Conviction and Death Sentence Goes to U.S. Supreme Court

Court watchers believe Justices will side with plaintiff

Carlos Ayestas’ defense attorney spent two minutes arguing that his client should not be executed during the penalty phase of his 1995 trial in Harris County, Texas for the murder of 67-year-old Santiaga Paneque. The defense presented no witnesses or mitigation, nor did it mention that Ayestas may have suffered from mental illness.

“It’s no surprise that the jury took 12 minutes to sentence him to death,” said capital punishment expert Brandon Garrett, a Professor at the University of Virginia School of Law. “They had no reason not to sentence him.”

This past Monday, Ayestas’ case went to the U.S. Supreme Court. The justices are being asked to decide whether Ayestas has the right to receive funding for “investigative, expert, or other services” that would allow him to challenge his conviction and death sentence. Lawyers for Ayestas hope to eventually prove that their client suffers from substance abuse and mental illness, and should not therefore be eligible for the death penalty. They maintain that his death sentence should be thrown out because of incompetent counsel. But first, they need resources to hire experts and conduct an investigation.

“Mr. Ayestas has been diagnosed as schizophrenic,” said University of Maryland law professor Lee Kovarsky, who argued Ayestas’ case before the Supreme Court. “But that diagnosis happened after his trial.”

The U.S. Court of Appeals for the 5th Circuit had previously ruled that an inmate must show “substantial need” to receive funding, and determined that Ayestas hadn’t met that threshold. But court watchers who observed Monday’s oral arguments said the U.S. Supreme Court appeared primed to overturn the lower court ruling and mandate funding for Ayestas.

A majority of the justices seemed to be swayed by the argument that the 5th Circuit Court had not used the correct standard for gauging “substantial need” in cases where an individual has been sentenced to death, wrote Steve Vladeck in Scotusblog.

“Indeed, a narrow remand to the Court of Appeals to apply the correct standard may well help the Supreme Court to dodge some of the thornier issues that came up at various points during the argument,” Vladeck wrote.

The Supreme Court is expected to issue a decision in the case in 2018.

Speaking during a conference call last week, Kovarsky argued that Ayestas was entitled to additional resources because his original lawyers failed to do their job. Robert Dunham, executive director of the Death Penalty Information Center, who spoke during the same conference call, said it would be wrong to execute Ayestas when his right to competent counsel had been denied.

“Schizophrenia is not something that pops up overnight,” Dunham said. “Any mitigation would have turned something up.”

Garrett said the problems associated with Ayestas’ conviction are common in death penalty cases.

“The death penalty is not reserved for the worst of the worst… It’s reserved for those with the worst lawyers,” he said.

The Supreme Court’s decision could set a precedent that allows others to challenge their death sentences based on the poor quality of their legal representation. Kovarsky said he did not know how many people facing death might be impacted by a Supreme Court ruling in favor of Ayestas.

Kovarsky also noted that death penalty defense, in general, has improved markedly since the 1990’s. For example, it is now considered standard for death penalty lawyers to check out the mental health and substance abuse histories of their clients, and to use that history to argue for leniency. But 20–30 years ago, doing so was not common practice.

During that era, according to Kovarsky, “lawyers existed in a legal culture that hadn’t really gotten with the program.”

The creation of regional capital defense offices, which now handle death penalty cases in many states, has also led to higher quality representation for those facing potential death sentences, Garrett said.

Ayestas’ challenge is the latest in a string of recent successful appeals to capital sentences originating in Harris County, which has sentenced more people to death since 1976 than any other county in the United States.

Earlier this year, the U.S. Supreme Court threw out the death sentence of Duane Buck after finding that his trial was marred by the illegal exclusion of black people from the jury. That case was resolved when Harris County District Attorney Kim Ogg allowed Buck to be resentenced to life in prison. She maintained that the racial bias exhibited in the original trial made it impossible to secure another death sentence.

The Supreme Court also overturned the death sentence of Bobby Moore in March. Moore was convicted and sentenced to death for killing James “Jim” McCarble during a Houston grocery store robbery in 1980. However, in a 5–3 decision, the Supreme Court ruled that Texas did not properly consider whether he met the threshold for being intellectually disabled, and therefore was ineligible for the death penalty.

On Wednesday, Ogg recommended that Moore be resentenced to life in prison. “I’m doing what I believe the law requires,” she stated. “The nation’s highest court has ruled that intellectually disabled persons can’t be subject to the death penalty.”

Mixed Signals: GPS Monitors on Memphis Victims

Jérémy-Günther-Heinz Jähnick / Bracelet électronique
Wikimedia Commons

Mixed Signals: GPS Monitors on Memphis Victims

Nearly 70 victims of domestic violence and rape in Memphis are wearing GPS devices thanks to the city’s Sexual Assault Kit Taskforce, according to its monthly progress report published in October. The taskforce was created by the mayor’s office in 2014 after revelations that the Memphis Police Department had failed to test more than 12,000 rape kits. The group, which includes victim advocates and representatives from MPD and the Shelby County District Attorney’s office, is the cornerstone of a partnership between the city of Memphis and the Joyful Heart Foundation, a New York-based nonprofit founded by Law & Order: SVU actress Mariska Hargitay. The taskforce describes its mission as ensuring “the [rape kit] work and many aspects of reform are coordinated and continue to move forward.”

The GPS devices, which are tracked in real time, “provide an extra measure of safety by alerting victims when alleged perpetrators out on bond come within a certain range of victims who voluntarily wear the device,” taskforce leader Dewanna Smith told me in an October 23 e-mail.

There may be a precedent for Memphis’ rape victim-monitoring. In 2012, a Sacramento judge ordered a rape victim to wear an ankle monitor after she bonded out of jail, where she had been held as a material witness. But experts warn that jailing victims as material witnesses and subjecting them to monitoring may deter other victims from reporting sexual assault to police.

“If somebody accused of rape is enough of a risk that a victim would need to wear a safety monitoring device,” said Carrie Goldberg, a New York civil rights attorney and pioneer in the field of sexual privacy, “then perhaps it would make more sense to rethink that [perpetrator’s] being on the streets in the first place.”

Goldberg, who defends victims of hacking, leaking, and other online assaults, was also concerned that defense attorneys for the accused would be able to subpoena the GPS devices and use that information to discredit victims.

“This really seems like a weird way to control victims — and not make the streets safer from criminals,” she said.

Alerting victims when their attackers are close by could be helpful, Goldberg explained. Still, she questioned the need for a GPS device and not, for example, a text to the victim’s phone or a keychain that beeps.

The GPS device, she told me, “makes it seem like she’s the accused. And I don’t like that.”

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Trafficking In Vagaries: How A Times Picayune Series That Found Only “trafficking opportunity” In Strip Clubs Paved The Way For A Bourbon Street Crackdown

“Bourbon Street wakes up at dusk,” CC BY-SA 2.0
Lars Plougmann via Wikimedia Commons

Trafficking In Vagaries: How A Times Picayune Series That Found Only “trafficking opportunity” In Strip Clubs Paved The Way For A Bourbon Street Crackdown

A proposal to curb strip clubs on Bourbon Street was introduced last Thursday by a New Orleans city council member, “citing recent reports from | The Times-Picayune on unfettered sex trafficking at the adult venues.” Just a few days after the paper’s first story appeared, Mayor Mitch Landrieu had already hired an attorney to investigate the clubs.

It’s not surprising that a city council member, Stacy Head, wants to limit and eliminate strip clubs through attrition, nor that Mayor Landrieu has directed Scott Bergthold, an attorney who once led a Christian law firm working to oppose LGBT rights, and with a history of working to shut down adult businesses (fighting “the tangible effects of the moral decay which local governments are quick to recognize,” as he told Christianity Today in 1999) to review city policy and criminal law pertaining to strip clubs, under the banner of fighting trafficking — not after the three-part series that ran in their city’s paper, the Times-PicayuneMedia reports of trafficking play a significant role shaping public policy and criminal law; this Times-Picayune series is already no exception. However, the evidence of “unfettered” trafficking in the clubs offered by the paper is thin, and the solutions offered so far could compromise the jobs and safety of the women working on Bourbon Street.

“The French Quarter’s most famous street is a hub for sex trafficking in the city, | The Times-Picayune found in a year-long investigation,” the paper’s editorial board wrote the Sunday after the city council announced a hearing on the strip clubs, in an op-ed titled “New Orleans must stop looking the other way while sex trafficking flourishes.” But the paper’s series referred interchangeably to stripping, selling sex, and trafficking, and concluded, vaguely and without data to support it, that victim advocates and law enforcement told them that French Quarter strip clubs were a “trafficking opportunity.”

This phrase — “trafficking opportunity” — has no meaning. Any business in which labor exploitation is possible (which is a lot of businesses) could likewise be described as a “trafficking opportunity.” The shakiness of this phrase might also explain why the Times-Picayune called the series, “The Track: How sex trafficking has taken hold of Bourbon Street” — even if the series lead reporter, Kevin Litten, conceded, “there has been no evidence that clubs knowingly employed dancers who were victims of human trafficking.” Instead, after a year-long investigation that involved Times-Picayune reporters conducting “14 visits to 10 strip clubs during the past 12 months,” reporters observed not trafficking but what they allege are violations of regulations barring contact between dancers and customers.

“On a visit to Hustler Club in July,” reporter Kevin Litten writes, “a young woman visiting the club was invited onto the main stage with a dancer and the dancer pulled the woman’s top down, exposing her breasts.” But without further reporting, there is no basis by which to claim this act is trafficking, or even a “trafficking opportunity.” This is likely not news to law enforcement; two Louisiana Alcohol & Tobacco Control investigators filed a report in October 2015 saying they observed a uniformed New Orleans Police Department sergeant “flirting and touching” a dancer at a Bourbon Street club. The Times-Picayune cites this incident, but as evidence of what ATC knew about the clubs, not what an NOPD sergeant — who, according to the ATC investigators, club staff said comes to the club “every time he is on shift” — allegedly does in the clubs, in apparent violation of the law.

A crash course for readers and reporters alike: trafficking, as defined by both Federal and Louisiana state law, entails the use of “force, fraud, or coercion” to compel an individual to engage in labor, including sexual labor. The exception to this is when an individual is under the age of 18, in which case there is no burden to prove force, fraud, or coercion. In the state of Louisiana, since August 1, 2016, that age was increased to 21. Anyone in the state who engages in “commercial sexual activity” under the age of 21 is regarded as a victim of trafficking.

In one year of reporting, the Times-Picayune reporters did not themselves document trafficking inside the Bourbon Street clubs. What they did was interview one woman they describe as trafficked, and cite two past cases: a Federal trafficking case involving women forced to sell sex on Bourbon Street, but not in the clubs; and a high-profile murder case that ended with second-degree murder charges, and in which there were allegations that the victim had been trafficked, after working in Bourbon Street clubs.

The series lead reporter, Litten, has since said he interviewed just “six current or former dancers” for this investigation (“I think that number’s right — I may be forgetting someone because I’ve been working on this for a year.”). He also had plans to interview three people who he described as trafficked, he told a Reddit AMA, but only was able to interview one. All three “returned to the life,” as he put it, but he didn’t specify what that meant: were they trading sex for money, or working in the clubs? Were they trafficked again? “I never spoke to victims while they were being trafficked,” he also told the same AMA. “That’s really law enforcement’s job and service providers like Covenant House.” One could argue, in reporting a story allegedly on trafficking, it is also a job for a reporter.

Via email, I asked Litten if he had interviewed the people he thought were again involved in trafficking, and if not, why not. His editor, Carolyn Fox, responded, “Your tone is unprofessional and your questions are leading, which make me question your legitimacy, and if you are trying to write a fair and balance [sic] article.” Litten did not offer a response.

So the Times-Picayune did speak with one person described as trafficked. She is not quoted describing herself as trafficked, but their story says she “said her pimp forced her to dance in clubs, but only made her have sex with customers when she was at home with him.” The woman also told the lead reporter — in his words — “the work at the club felt like an escape from her pimp, who was regularly physically abusive.” As she put it, he writes, “I didn’t feel like it was as bad because I was performing and I had to perform with little to no clothes on but I didn’t have to have sex with people for money.”

But where are the traffickers in the strip clubs, the traffickers that led to the city council crackdown? The Times-Picayune series includes two men described as pimps who were charged with multiple trafficking offenses under Federal law. According to court sentencing documents, Granville Robinson of Memphis pled guilty to one count of “Conspiracy to Commit Sex Trafficking by Force, Fraud or Coercion” and one count of “Sex Trafficking by Force, Fraud, or Coercion” in February 2016, and was sentenced to 294 months in Federal prison.

For ten years after his release, Robinson is forbidden to “possess or use for any purpose, a computer, or television, or other instruments of communication equipped with on-line, Internet or World Wide Web access, or access computers or other forms of wireless communication via third parties,” and he must also register as a sex offender.

Likewise according to sentencing documents, Christopher Williams, also of Memphis, pled guilty to one count of “Conspiracy to Commit Sex Trafficking,” for which he was sentenced to 180 months in Federal prison, and given the same ten years supervision and same prohibitions as Robinson, but additionally, Williams was forbidden to possess pornography, or enter any adult entertainment venue.

Those two cases related by the Times-Picayune did not involve trafficking in the strip clubs; instead, according to the series, the men demanded the women working for them walk the streets nearby. Some strip club management and service staff also reported to the Times-Picayune that pimps would enter the clubs sometimes, but that workers knew who they were, and they were frequently kicked out. As they write, a bouncer told reporters when asked how he knew certain people were pimps, “It was pretty obvious when they say, ‘I’m a pimp.’”

Buried in a story that continuously alleges there is poor enforcement in the clubs which leaves them open to pimps and traffickers, are three other stories:

  • first, of club workers and management telling reporters they kick men they think are pimps out of the strip clubs,
  • then, a story of two men who, as the Times-Picayune reporting states, are collectively serving 39 1/2 years in prison for trafficking outside the strip clubs, and
  • last, a story of one woman reporters describe as a trafficking victim, who reporters write was both forced to dance in clubs and, as they put it, who felt the clubs were “like an escape from her pimp”

The first two stories are examples of how strip clubs do in practice remove people they believe could exploit the women who work there, and of how police and Federal prosecutors enforce anti-trafficking laws around Bourbon Street. Yet in a nearly 12,000 word series on trafficking, the third story — the only story that is actually about potential trafficking in a strip club — occupies only 244 words.

The Times-Picayune reporting team did find her, the one person who they say was trafficked in Bourbon Street strip clubs.

Her story deserves more attention. She doesn’t get it.

Instead, Litten, the lead reporter on the investigation, concludes partway through the series, despite evidence to the contrary in his own reporting: “[W]hat you have now on Bourbon Street: a bull market for sex traffickers.”

This kind of investigative series, purportedly revealing previously unknown, widespread and systematically ignored incidences of human trafficking, is not unique to New Orleans. Similar sensational exposes have driven demand for crackdowns for more than a century in the United States, going back to the days of legal red light districts and the “white slave” panic.

In the journalism of that time, as today, media accounts of alleged trafficking are how the crime of trafficking is defined. But if city governments and law enforcement begin and end their inquiry into trafficking with such imprecise reporting, ignoring the people who should be at the center of these stories, the law will only reinforce these vagaries.

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