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How a Case of ‘Restorative Justice’ Was Actually Just Business As Usual For the New Orleans DA

Office of the Orleans Parish District Attorney

How a Case of ‘Restorative Justice’ Was Actually Just Business As Usual For the New Orleans DA

It was a courtroom scene that seemed to tell an epic tale of redemption — and show the New Orleans DA’s office in a rare embrace of restorative justice. On December 1, 2017, 23-year-old Jeremy Burse stood before the New Orleans criminal court judge who, less than two years earlier, had sentenced him to life without parole for shooting a friend during a botched robbery when he was just 15 years old.

But on that December day, the very same judge, encouraged by the same assistant district attorney who had prosecuted the case, erased the living death sentence of life without parole and resentenced Burse to 25 years in prison, a deal agreed to by the prosecution and defense. That morning, Burse met, apologized to and hugged the mother of the victim.

“This case involved two boys who were very close friends and made very stupid mistakes,” Laura Rodrigue, head of the restorative justice unit for the Orleans Parish District Attorney’s office (and daughter of the District Attorney Leon Cannizzaro), stated in a news release. “Both families suffered devastating losses through the actions of both the defendant and the victim.”

The case was celebrated as New Orleans’s first mediated revision of a juvenile life without parole sentence, but what looked like a moment of reform was far from it. What Rodrigue — and the Times-Picayune article describing the scene — omitted is the prosecutorial misconduct alleged by Burse’s attorneys that sent him to prison in the first place.

As the assistant district attorney prosecuting the young man four years earlier,Rodrigue allegedly threatened the state’s key witness with prosecution and offered him a new attorney for his pending charges in exchange for his testimony against Burse. As he prepared to appeal the conviction, Burse’s attorney Christopher Murell sent an investigator to interview Stewart, who admitted to the threat and the offer. Murell then filed a motion for a new trial. However, not wanting the case to drag on without resolution, Burse agreed to plead guilty in exchange for a 25-year prison sentence.

The New Orleans District Attorney’s office has a decades-long history of misconduct. In 1995, the United States Supreme Court rebuked then-Orleans Parish District Attorney Harry Connick Sr. for “blatant and repeated violations” of the Brady rule, which requires prosecutors to divulge information such as deals made with state witnesses and information that could discredit their witnesses. Justice David Souter even went so far as to write that the court had “descend[ed] to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of the truth.”

Louisiana courts have overturned at least 36 convictions out of the Orleans DA’s office for hiding evidence that might impede a conviction. In one case, Robert Jones spent over 23 years in prison, wrongfully convicted of a string of violent crimes, including murder, rape and kidnapping, after prosecutors failed to turn over exculpatory evidence. (Now free, Jones is suing the district attorney’s office.)

In another case, John Thompson was weeks away from execution after spending 18 years behind bars when his attorneys found exonerating evidence, which prosecutors had known about but failed to turn over in court. He sued and a jury awarded him $14 million in damages. But the Orleans Parish district attorney appealed to the U.S. Supreme Court, which in 2011, ruled that the DA’s office could not be held responsible for the actions of a lone prosecutor.

The Orleans DA’s office, led by Leon Cannizzaro since 2009still doesn’t play fair. That’s what the attorneys for Jeremy Burse argued in their motion for a new trial. The prosecution’s key witness, Ricky Stewart, admitted to lying under oath when he testified against Burse in June 2013. His testimony sent Burse to prison for life without parole.

In September 2010, police responded to a 911 call about a shooting in New Orleans East. They found a security guard in the parking lot of an apartment complex, shot but still alive, following a robbery attempt. They also found the dead body of 16-year-old Anthony Davis, who was later determined to be one of the two teenagers attempting to rob the guard. Davis had died of a gunshot wound to the chest after a bullet ricocheted off another object.

Under questioning two days later by the New Orleans Police Department, Ricky Stewart, then age 16, told officers that he, Burse, Davis and another young man had been driving around in a stolen car. Stewart said he and the other teen had already dropped Burse and Davis off at the apartment complex and were driving away when the shooting occurred. Stewart told police that he heard gunshots, then saw Burse, with a gun in hand, who told him that he had made a “mistake” and shot a security guard. Burse then ran off. Based solely on Stewart’s account, the police arrested Burse, then 15, for attempted murder and attempted armed robbery. The Orleans DA later added a second-degree murder charge.

In June 2013, Burse, then age 18, finally had his day in court. By then, he had spent three years at Orleans Parish Prison, the notorious local jail that is under a federal consent decree. The key witness was Stewart, who was facing 12 years in prison for a burglary charge. The jury found Burse guilty of second-degree felony murder, which in Louisiana means that a person was killed during the commission of a crime.

By then, the Supreme Court had issued its opinion in Miller v. Alabama, which established that mandatory life without parole for children under age 18 violated the Constitution’s prohibition on cruel and unusual punishment. The ruling did not, however, prohibit states from ever sentencing a child to life without parole; a judge could still do so after an investigation and a hearing. After the required Miller hearing, the judge nonetheless sentenced Burse to life without parole. Burse was sent to Louisiana’s Angola State Prison, where he remains today.

The next year, however, Stewart admitted that he lied on the stand. “I did not want to testify in Jeremy’s trial,” Stewart wrote in a 2017 affidavit. He stated that he had not actually seen the shooting, but Assistant District Attorney Laura Rodrigue, who had prosecuted Burse, “said that they would charge me for having a role in Anthony’s murder if I did not testify. I was very scared. I did not want to testify, but I had to or else I would go to jail. It was more important to me that I not go to jail than telling the truth about the night Anthony was killed.”

Not only did Rodrigue allegedly use the stick of a murder charge, but she also dangled a carrot before her witness. Stewart had complained about the public defender appointed to represent him in his burglary case(“I did not think my public defender was fighting for me,” Stewart stated in his affidavit. “I wanted to hire a private lawyer to get better representation. I could not afford a private lawyer.”) So, Rodrigue allegedly offered Stewart a private lawyer if he testified against Burse.

“The day before I testified in Jeremy’s murder case for the prosecution, Robert Jenkins was appointed to represent me on my burglary case,” Stewart wrote in his affidavit. “I know Robert Jenkins to be a big name, private lawyer in New Orleans. Robert Jenkins showed up to court to enroll as my lawyer.” Jenkins is a prominent private attorney whose clients include former New Orleans Mayor Ray Nagin. “It was clear that the two lady DAs got Robert Jenkins appointed to my case so that I would testify for them the next day,” Stewart wrote in his affidavit. But, Stewart continued, Rodrigue also cautioned him not to talk about her role in securing him a better attorney. That, of course, violates the Brady Rule.

This is not the only time that Cannizzaro’s office has been accused of violating the Brady rule. In 2010, Cannizzaro prosecuted Jamaal Tucker for second-degree murder based on the testimony of a jailhouse informant named Morris Greene. In return, Cannizzaro called in a favor from the prosecutor in Lafayette Parish. Greene got time served; Tucker got life in prison. Faced with a subpoena to testify about his dealings with Greene, Cannizzaro tossed the conviction. Tucker later pleaded guilty to manslaughter and will serve at least 25 years in prison.

In October 2017, the ACLU and the Civil Rights Corps filed a federal lawsuit against Cannizzaro and ten of his prosecutors, including Rodrigue, for coercing reluctant witnesses with arrest warrants and fake subpoenas. The suit alleges that, for years, Cannizzaro’s prosecutors have attempted to intimidate reluctant witnesses into private interviews outside of court. If they refused, prosecutors “routinely obtain[ed] arrest warrants to put crime victims and witnesses in jail.” According to the lawsuit, over the past five years, Cannizzaro’s office sought at least 150 material witness warrants, jailing at least one rape victim and one victim of child sex-trafficking.

Burse attorney Christopher Murell’s 2017 motion for a new trial was based on similar allegations of prosecutorial misconduct by the Orleans DA’s office. He also reached out to prosecutors to begin plea negotiations. “It was a risk analysis,” he explained. “We had lost at trial before. We could have won at a retrial, but it’s not guaranteed that we would.”

Murell said he had no idea that the case would be part of the DA’s restorative justice program, which Rodrigue heads. Though Burse and Davis’s mother met and spoke in the judge’s chamber before Burse’s court appearance, Murell had not been informed that the meeting was part of a mediation, which generally involves an open-ended conversation rather than a pre-ordained plea deal. “I was under the impression that this [meeting] was in furtherance of getting the plea [of 25 years rather than life without parole],” Murrell said. “Until the very end, I did not know that the district attorney had a restorative justice program.”

Still, reflects Murell, “it’s a better outcome than being sentenced to life without parole. Jeremy will be released while he’s still relatively young and be able to be with his own family and build his own family and have a life. But living in a state where something you did when you were 15 years old can result in a 25-year prison sentence, I would not say is justice.”

Judges Who Help Us Expand Our ‘Crabbed View’ of Justice Beyond Criminal Prosecution

Judges Who Help Us Expand Our ‘Crabbed View’ of Justice Beyond Criminal Prosecution

Joseph Margulies, professor of law and government at Cornell University, recently remarked, “In the carceral state, we have developed such a crabbed view of justice that we imagine it as nothing more than a criminal conviction … I hope we want accountability for what happened, and change to ensure it never happens again. Why should we think a criminal prosecution is the only — or even the best — way to achieve these goals?”

Those who resist this “crabbed view” may wish to examine a little-known area of the criminal law, in which judges are able to step in and declare that a conviction would be the very opposite of justice. Fifteen states (and Puerto Rico) give judges the power to dismiss prosecutions “in the interests of justice,” or, in other words, to declare that, regardless of the strength of the evidence, a dismissal would get us closer to justice than would continued prosecution. Four states (and Guam) have de minimis dismissal provisions, which serve the same ends. Scholars often ignore these provisions; practitioners often fail to invoke them. But judges use them — multiple examples are discussed in this recent article — and in doing so they reveal surprising things about how they see justice, and their role in securing it.

Many experts have told us that the most powerful players in the criminal justice system are prosecutors. But in these 19 states, judges can check prosecutorial power. Indeed, Connecticut’s dismissal statute has the purpose of “prevent[ing] unchecked power by a prosecuting attorney.” In jurisdictions with these provisions, judges can — and do — dismiss when they detect injustice in, for example, the anticipated sentence, the anticipated collateral consequences, law enforcement bias, law enforcement misconduct, or a waste of taxpayer money.

Different states conceptualize this judicial role differently. In New York, the dismissal statutes (one for felonies, and one for misdemeanors) are said to “interpose the court between the prosecution and the accused.” In California, the dismissal statute allows for a situation in which a judge grabs the reins, “takes charge of the prosecution, and acts for the people.” And in New Jersey, the judge is said to stand as the “gatekeeper” of the criminal law, vigilantly ensuring that it be used for proper ends only.

Some have called for this power to be available in jurisdictions that do not provide it. Recent filings in Florida and in North Carolina (states that, like the rest of the southeastern United States, lack these provisions) have urged judges to find this kind of power within their state’s law. One judge on the D.C. Court of Appeals was forced, in the absence of such a statute, to concur in the affirmation of a conviction, but he declared that the prosecution in question, which centered around an allegation of grabbing a cellphone after a long, hot day at the DMV, was just the kind of thing that merited dismissal. And District Judge Frederic Block has asked “[S]hould not federal law recognize, as New York State does, that in a worthy exceptional case, ‘the letter of the law gracefully and charitably [should] succumb to the spirit of justice’?”) (Indeed, in 1970, the Federal Rules Committee proposed adding such a provision to the Federal Rules of Criminal Procedure, but it went nowhere.).

The downsides of these provisions aren’t hard to imagine. How much discretionary power do we wish to place in the hands of an individual, even or especially an elected one? With discretion comes the risk of bias, and all kinds of assessments weighed in considering dismissal — assessments of harm, wrong, pain, and worth — are hotspots for implicit bias. “Appellant is somebody’s daughter. I have a daughter,” said one judge as he dismissed a prostitution charge, thus making explicit the feeling of connectedness that was moving him to dismiss. Our feelings of connectedness have an uneven reach, and our state judiciary is not representative. 83 percent of state trial judges, for example, are white.

In addition, these dismissals can tackle only a tiny bit of injustice. Invoking separation of powers concerns, judges frequently limit their own power. New York judges, for example, have declared that these dismissals occur only because of “the tiniest crack that allows a sliver of discretion to shine through when Justice cries out for mercy in spite of the strict application of the law.” Others have said that these provisions should be invoked only to avoid “absurd” results. But where to draw the line? Some might say our entire system of mass incarceration is “absurd.”

Whatever the fallibility of what these judges are doing in individual cases, they are doing something important as a group. They return, again and again, to an interest in non-criminal forms of accountability, often dismissing prosecutions where other means exist to address the alleged harm, or where prosecution would thwart productive change. They often treat the criminal law as a last resort, rather than the default. These judges inspire us to shed our “crabbed view” of justice, in Margulies’s words, expanding our vision to include possibilities far beyond the criminal courts.

Editor’s Note: A fuller treatment of this topic can be found in Dismissals as Justice, Alabama Law Review (2017).

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The False Promise of Bail Reform in Dallas County: Debate Continues While People Languish in Jail

Dallas County Jail
Andreas Praefcke [CC BY 3.0]

The False Promise of Bail Reform in Dallas County: Debate Continues While People Languish in Jail

For five days, 47-year-old Shannon Daves sat in solitary confinement in a Dallas County jail because she couldn’t afford to pay $500 bail. Daves, who is unemployed and homeless, was isolated because she is transgender — allegedly to protect her from the jail’s general population. She faces a misdemeanor property theft charge.

She and five other indigent plaintiffs are at the center of a lawsuit filed Jan. 21 against Dallas County, challenging a cash bail system that leaves low-income defendants no choice but to wait in jail for their court dates.

“Except for the attorneys representing me … I am not allowed to talk to anyone,” Daves wrote in her affidavit. “I cannot afford to buy my release from jail … I feel that because I am transgender they have allowed me to fall through the cracks.”

Daves and her co-plaintiffs allege that they were never asked by a judge whether or not they could afford to pay their set bond amounts, which range from $500 to $50,000. The lawsuit, filed by Civil Rights Corp, The Texas Fair Defense Project, the ACLU of Texas, and the national ACLU, argues that the county routinely assigns bail to defendants facing misdemeanor and felony charges without first assessing individuals’ ability to pay, violating their constitutional rights.

The complaint calls for an end to the county’s “wealth-based post-arrest detention scheme,” asking the court to consider defendants’ ability to pay and to weigh alternatives to detention, reforms that other advocates around the country are also demanding.

Last Tuesday, Faith in Texas, a faith-based social justice organization, and the Texas Organizing Project Education Fund joined as plaintiffs in the lawsuit. In an amendment to the original suit, these groups note that they have been barred by the Dallas County Sheriff from attending court proceedings at which bail amounts are set, which they consider a First Amendment violation. They asked that the hearings be made open to the public.

“To Sit in Jail is to Lose Hope”

Brittany White, an organizer with Faith in Texas, understands the pain of waiting behind bars, unable to pay bail. Before spending five years in an Alabama prison on a marijuana trafficking offense, White sat in jail for six weeks without bond. After she lost at trial, she spent nine more weeks in county jail, waiting to be sent to prison.

“To sit in jail is to lose hope — to lose your home, your car, your job,” said White. She and her colleagues bailed out two of the plaintiffs in the lawsuit, including Daves, and provided assistance to others.

“Our mission was just to give them a meal, and get them home safely so they didn’t get released in the middle of the night without a way home,” said White. “What we weren’t prepared for is some people didn’t have homes to go to.”

“I’ve been incarcerated, but never incarcerated poor,” White continued. “I always had someone who would accept my phone call, buy my hygiene products, write me letters … I never came out of jail wondering ‘Where am I going to go.’ But I am not the norm.”

The norm described by White — the incarceration of the poor, who can’t afford bail, much less a roof over their heads when they get out — is at the core of this lawsuit. Across the country, the work done for years by organizers like White, as well as firms like the Civil Rights Corps, is slowly catching on and catalyzing change.

In Dallas, local officials recognize that the bail system is problematic. In a conversation with In Justice Today, Dallas County Judge Clay Jenkins expressed frustration with the current state of the county’s bail system, which he described as both unfair and a waste of money.

“It makes no sense that a person of affluence who is accused of a violent crime may be able to bond out within hours of arrest, but a person who is homeless and charged with trespassing or vagrancy, or a single mom who failed to pay her parking tickets, should be incarcerated for days and be taken away from their family,” he said. “We spend tens of millions of dollars a year incarcerating poor people.”

The Dallas lawsuit comes after a similar class action suit filed in Harris County, Texas in May 2016. In April 2017, a federal judge ruled in favor of the plaintiffs in the Harris County case, and ordered the county to release misdemeanor defendants who couldn’t pay their bail within 24 hours of their arrest. The ruling is now on appeal before the Fifth Circuit.

“We’ve Been Doing This for Years”

Judge Jenkins is one of several key players in Dallas’s criminal justice system — including probation department officials, presiding judges, and the county’s head public defender — who have been meeting for two years to hash out a better approach to bail. But advocates say that progress is uneven, as the lawsuit shows, and the process has been far too slow.

County Commissioner John Price Wiley told In Justice Today he was disappointed by the Dallas groups’ decision to sue. I feel “very good about the kind of collaborative [reforms] we’ve put into place,” he said. “We didn’t just start doing this because ACLU showed up on the scene down in Harris County. We’ve been doing this for years.”

The county did adopt a pretrial services division in 2015, which manages various forms of supervision for people released on bond, and signed off on an agreement allowing certain defendants facing low-level charges to have their cases dismissed if they repeatedly return to court every 60 to 90 days over a period of months, while participating in a diversion program.

This alternative to jailing low-level defendants aims to allow them to go about their lives and maintain jobs and community ties while dealing with their cases.

On Tuesday, county commissioners met with two opposing parties: A bail bondsman, and the director of the University of Houston’s Criminal Justice Institute, to discuss the way forward, the Dallas Observer reports.

Richardson, the public defender, acknowledges that some gains have been made. Dallas County has “so many specialty diversion court programs, and that’s a good thing,” she said. But in practice, she explained, many of the classes and diversion programs have associated fees that must be paid to the District Attorney’s office and to the probation office — making them inaccessible to her clients, who, like the plaintiffs in the lawsuit, are indigent. A county drug diversion program, for instance, costs participants more than $1,000.

While partial or full fee waivers are available to poor clients in theory, the documentation required to verify a person’s financial status often makes it difficult for Richardson’s clients to actually obtain a waiver. If an individual is transient, for example, they can’t provide proof of address. Richardson recently reviewed data from the probation office documenting waiver applications and found the majority were not accepted.

“It’s been my experience with past clients who got kicked out, they’ll say they got kicked out because they failed a report or drug test, but the real issue is that person wasn’t paying,” she said.

Advocates hope the lawsuit will tip the scales away from endless debate and spur the county into action. “While they’re trying to figure out what are the best next steps are, there are people lying in bed in jail for days,” said White, the organizer with Faith in Texas. “Their lives are deteriorating around them.”

If We Don’t Have Bail…Then What?

Even if Dallas judges were more careful in assessing who could and could not afford bail, they’d still have another problem to work out: Who should be released pending trial and who should be held? Some cities and states have drastically reduced their use of cash bail, replacing their money-based system nearly wholesale with a “risk-based system,” one in which judges can order that a person be confined pretrial — with no possibility of paying their way out — if they are deemed to have a high likelihood of absconding or committing another crime.

Central to the conversations taking place among stakeholders in Dallas County is how judges should decide who should remain in jail. Some jurisdictions rely on what are called “risk assessments” to help make that determination. The data used by these tools varies, but might include prior criminal offenses, social support systems, or past troubles with school or work. That information, often gathered by a pretrial officer, is presented to a judge to inform their decision-making. The goal, proponents of these tools say, is to move away from a system that depends on a person’s ability to pay, to a system based on actual risk.

Last year, Dallas began using such a tool, called the Ohio Risk Assessment System, in cases involving mentally ill defendants facing misdemeanor charges. The county now wants to use a risk assessment tool for all pretrial detention decisions, but needs to decide which one. It could implement the Ohio Risk Assessment System, or a tool developed by the Arnold Foundation, which is currently used in at least 38 other jurisdictions.

Richardson, the public defender, prefers the Arnold tool, because unlike the Ohio tool, it doesn’t require the defendant to be interviewed by a pretrial officer — a conversation that increases the odds of an interviewee unintentionally incriminating him- or herself.

“Even though they say that [the pretrial officer] tells them not to talk about their case, sometimes they start saying stuff, and that information is definitely going to be recorded and could be used against them later,” says Richardson.

After deliberating for months over which tool to adopt, the county spent more than $100,000 to hire an outside consulting firm to help make the call. But Richardson says the firm eventually stated that “either one would be fine,” leaving the county without a final decision. On top of that, Richardson says, some county officials are concerned about the potential costs of bail reform. The introduction of either tool could result in more people being supervised in the community rather than in jail, requiring the county to hire dozens of pretrial officers.

The potential for the vast increase in state supervision of low-income defendants is also a concern for Elizabeth Rossi, a lead attorney with Civil Rights Corps, who filed the Dallas County lawsuit — but for a different reason. “We don’t consider it a win for impoverished people and people of color to simply be transferred from a system of mass incarceration to a system of mass surveillance,” she said.

The success of these tools to actually reduce the number of people in jail pretrial, Rossi notes, “depends on who wields it, and what the person or entity’s goal is.” Ultimately, risk assessments have “limited utility,” she said, and should be used in tandem with other resources to determine who should be detained.

“Nibbling Around the Edges”

Even when a new assessment tool is chosen, as it was in Harris County following the 2016 lawsuit (the Arnold Foundation’s tool), Jay Jenkins of the Houston-based Texas Criminal Justice Coalition cautions that this kind of software isn’t a fix-all.

“If nothing else, the Harris County litigation showed us that a new risk assessment tool is not meaningful or sufficient enough to address underlying legal and constitutional deficiencies in their bail system,” says Jenkins. “It’s still nibbling around the edges.”

Rossi agrees. “Pretrial assessment tools are not a panacea,” she said. In a criminal justice system replete with “racism and classism,” she explained, risk assessment tools often rely on data that reflects those biases, exacerbating the disparate treatment of low-income people of color.

In Harris County, Rossi says, despite the use of a risk assessment tool, many defendants who pose little danger to society are still inappropriately detained pretrial. Moreover, the county does little in the way of offering social services for people who allegedly pose a high “risk” of failure to appear on their court dates.

For example, risk assessment tools might determine that someone is at a high risk of not appearing in court, but that risk could be the result of homelessness, a job with unpredictable hours, or not having a car. Those risks could be relieved by the court, negating the need for detention — but that doesn’t always happen in practice.

“You might have a very high risk of not appearing if you live in a tent in the woods outside of Harris County,” Rossi said. “But that risk is easily mitigated if somebody can provide you with transportation to get to court.”

Dallas County Judge Jenkins acknowledges the risks of blindly adopting a tool that could replicate problems already present in the local justice system. “We’ve got to guard against that happening here — that’s why we are spending money to bring people through to talk to us about our options,” Jenkins told In Justice Today. “A risk assessment tool is one way of doing it, but I’m open to discussing other ways to do it.”

But Jenkins, like other Dallas County officials, is quick to point out the gains he feels the county has already made.

“We approved millions of dollars in new positions for pretrial officers to help the judges,” says Jenkins. “We are putting our money where our mouth is.”

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