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How ‘El Chapo’s’ Attorney is Fighting For His Client’s Right to a Fair Trial

How ‘El Chapo’s’ Attorney is Fighting For His Client’s Right to a Fair Trial

Each day in his small cell in a Manhattan federal prison, Joaquín “El Chapo” Guzmán Loera battles severe headaches and vomiting, his lawyer says. He spends several hours with members of his defense team, reviewing 300,000 pages of discovery to prepare for his upcoming trial on charges including “leading a continuing criminal enterprise,” drug distribution, use of firearms, and money laundering. When he is alone, back in his cell, the Mexican-born Guzmán, the alleged leader of Mexico’s most powerful drug trafficking organization, the Sinaloa Cartel, reviews documents on a government-issued laptop. Excluding family and legal visits, Guzmán is locked in his cell at the Metropolitan Correctional Center (MCC) for 23 hours per day.

Since January 2017, when Guzmán was extradited to the U.S. and admitted to the facility — which was once described as “worse than Guantánamo”—his legal team has repeatedly challenged his extreme confinement as unconstitutional.

In a court hearing on February 15 ahead of his September 2018 trial, Guzmán’s lead attorney, Eduardo Balarezo, asked that his client be able to air his grievances about the conditions of his confinement. Prosecutors objected to the request, arguing he could “use the opportunity to pass messages to the media or others.” U.S. Eastern District Judge Brian Cogan agreed to consider allowing Guzmán to speak at his next court hearing in April, and instructed him to put his complaints into a letter.

Guzmán may be a notorious figure, but he has never been convicted of a crime in the United States, and Balarezo is determined to ensure that his client’s due process rights are not violated.

“Every defendant has a right to a trial, whether he is Joaquín Guzmán or Joe Smith,” Balarezo told The Appeal. “We are optimistic that he will get a fair trial and we believe that if he does, a jury will be able to see through all the chaff and see the reality of this case and not just what the government wants them to see.”

Balarezo says that his client endures bleak conditions at MCC. The area where Guzmán is housed, known as 10 South, is so isolated that some prisoners there have reported deteriorating eyesight, according to the New York Times.In a nearby unit known as 9 South with similarly restrictive conditions, one prisoner wrote to the federal Bureau of Prisons (BOP) that temperatures in the cells hover around 50 degrees and that he has observed roaches and insect eggs in his food.

“[Guzmán] is having a great deal of difficulty with the conditions of his confinement,” Balarezo said. “He is having psychological problems, he is having auditory hallucinations. The medical treatment he gets is minimal at best and non-existent at worst.”

In December 2017, a psychologist evaluated Guzmán after Balarezo told the court that his client’s mental health was suffering at MCC.

Balarezo declined to discuss the psychologist’s findings, but he said that she concluded Guzmán suffered from the issues he described “as a result of his confinement.”

The government argues that Guzmán’s extraordinary confinement is necessary to keep him from staging a jailbreak, noting that he twice escaped from high-security prisons in Mexico.

Federal prosecutors use the same reasoning to argue that discovery in the Guzmán case should be highly protected. The defense team is forbidden from taking discovery out of the country or showing it to third parties such as associates or family members, who could potentially help his team fight the government’s case. The government has also redacted significant portions of the hundreds of thousands of pages of documents it has provided to the defense.

“The majority of the discovery is not identifiable in the sense of there are no dates, names,” Balarezo said. “Also, because much of it is heavily redacted, it is basically useless at this point.”

Prosecutors have hinted they are planning to recount, in detail, Guzmán’s rise from a marijuana farmer to the head of a cartel that allegedly raked in $14 billion over four continents.

Balarezo says the government’s case relies primarily upon cooperators who have disclosed information about the cartel’s operations. The defense team doesn’t know the identity of most of the witnesses who will be called to testify during the trial, excluding two brothers who used to operate within the Sinaloa cartel, Margarito and Pedro Flores, who are reportedly expected to be star witnesses. Both received 14 years in prison instead of life sentences for handing over covertly recorded conversations with Guzmán.

Balarezo says their testimony is not to be trusted because they benefit from testifying against Guzmán.

“We believe their testimony will be suspect and tainted and we hope the jury sees it the way it is,” he said. “It’s going to be obvious that most of these people are admitted criminals. They will be individuals who have committed murders, who have done horrendous things, who have signed onto the government’s team to trade their testimony in exchange for more lenient sentences.”

Making the case even more challenging for Balarezo, Judge Cogan ruled in early February that an anonymous and partially sequestered jury would be empaneled in order to protect jurors from alleged Guzmán associates. Balarezo unsuccessfully argued that an anonymous jury would give jurors the impression his client is dangerous and therefore guilty.

“This is a very difficult case mainly because of the restrictions on my client and on what we can do,” he said. “However, we’re going to do the best we can to make sure the government doesn’t just steamroll him with a case that’s primarily composed of cooperator testimony.”

A spokesman for the Eastern District of New York declined to comment and referred In Justice Today to court documents.

Philadelphia City Council’s Vote in Favor of Ending Cash Bail Bolsters Citywide Push

Activists cheer seconds after the Philadelphia City Council voted to urge a move away from money bail.
Philadelphia City Council / Youtube

Philadelphia City Council’s Vote in Favor of Ending Cash Bail Bolsters Citywide Push

In early February, the Philadelphia City Council made history: It voted unanimously in favor of ending the use of cash bail.

The resolution, passed February 1, urges the district attorney’s office and the courts “to institute internal policies that reduce reliance on cash bail” and called on the state legislature and state Supreme Court to eliminate cash bail statewide.

The Council’s vote doesn’t have legal force; the state legislature would have to act in order to end the use of cash bail in Philadelphia or anywhere else in Pennsylvania. But advocates say it is still important — and signals that more meaningful action may be on the way.

“Even if it doesn’t have legislative heft, it’s always helpful to have such vocal support from the [city] legislature,” said Julie Wertheimer, chief of staff of the Philadelphia mayor’s Office of Criminal Justice. “It just means that all three branches of government in Philadelphia are on the same page in terms of the direction we’re moving in as a city, regardless of what the state decides to do.”

Paul Heaton, academic director of the Quattrone Center for the Fair Administration of Justice at University of Pennsylvania Law School, agreed. “The City Council vote is not merely symbolic,” Heaton said in an email. “The recent vote signals some openness by the Council to consider budgetary or legislative requests from agencies that would support policies or programs that reduce cash bail, and this should encourage those interested in reform.”

Even without action from the state legislature, he said, the City Council, courts, and DA’s office can decrease the use of bail. “There is no ‘magic bullet’ solution that is going to allow the city to end cash bail,” said Heaton. “It is going to require parallel efforts across a variety of domains involving the entire criminal justice system.”

The city could provide earlier representation for detainees in the pretrial process, for instance, so attorneys could more effectively argue for release instead of bail. Judges and magistrates could use risk assessments to allow more people to be released. Perhaps most importantly, Heaton said, there should be fewer arrests in the first place, particularly for low-level offenses.

The City Council has already taken some legislative action: In 2016, it changed some low-level nuisance offenses, such as disorderly conduct or public drunkenness, into civil code violations, meaning that those who are charged are issued tickets instead of arrested. Advocates want even more offenses to be categorized as civil code violations so they result in summonses instead of arrests, effectively ending cash bail for those types of charges.

Meanwhile, municipal court has the power to formulate bail guidelines that focus on releasing people on unsecured bail — which doesn’t require arrestees to pay anything up-front to be released, only if they fail to return to court — or on non-monetary conditions, such as monitoring or drug tests. “If the president judge of the municipal court and a majority of the municipal court bench agreed on a set of guidelines making money bail an option of last resort, that could change overnight,” noted Arjun Malik, a board member of the Philadelphia Bail Fund.

“Discretion really does lie with these local actors — the courts, the district attorney’s office — to change their policies as they stand today,” added Malik.

Local actors include District Attorney Larry Krasner, who was elected in November on a pledge, among others, to end the use of cash bail. “There’s clearly vocal support from him to accelerate this work,” Wertheimer noted.

Ben Waxman, communications director for Krasner’s office, is enthusiastic about the City Council’s recent vote. “We view it very much as a positive step forward towards [the] consensus that is building around the issue,” he said. Even a few years ago, he added, bail reform wasn’t an issue that galvanized many voters; now it’s a widely discussed issue citywide.

The DA’s office plans to take action on bail reform soon, although Waxman couldn’t share specifics yet. “What we are engaged in at the moment is an internal review of current district attorney polices around how we ask for bail and for what amounts and for what types of offenses,” he said. In the next few weeks, he said, his office will have some “pretty significant announcements” coming out that will “outline a plan to move forward to turn that vision to reality.”

“Expect to see some changes,” he added.

The city’s push for bail reform got a boost in 2016, when Philadelphia was awarded a $3.5 million grant from the MacArthur Foundation to reduce the number of people held in its jails. Since then, its jail population has dropped by about 17 percent. Still, about a quarter of the people held in city jails are there because they can’t make bail. Wertheimer said it takes time to move from a grant to large-scale changes. “As you can imagine, these things, even with the funding and outside support in place, take a while to actually operationalize,” Wertheimer said.

One important change that resulted from the MacArthur grant is that if a defendant is given a bail amount of $50,000 or less for a nonviolent offense, he or she gets a review hearing five days later. According to Malik of the Philadelphia Bail Fund, about 90 percent of people who have review hearings are then released, which means they are now spending less time in jail due to an inability to afford bail. “But that’s not good enough,” he argued. “Putting them in jail for five days is incredibly destabilizing to their lives and there’s no real justification for it.”

“I don’t want to discount how much good it’s done compared to the previous status quo,” he added. “But it’s not anywhere near ending money bail. It’s not good enough.”

Ultimately, Malik hopes the City Council’s vote will help build momentum for reform. “It certainly helps put pressure on both the DA’s office and the court system, and even the state legislature, in saying, ‘Hey, Philadelphia wants to change and you need to catch up,’” he said.

Indeed, there is already pressure on the state legislature to eliminate cash bail altogether. “We’re watching to see if the state actually moves on it,” Wertheimer said. While bail reform bills have thus far been introduced but not enacted, she said, “that could change at any time.”

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NYPD Agrees To New Rules Limiting Its Seizures of New Yorkers’ Property


NYPD Agrees To New Rules Limiting Its Seizures of New Yorkers’ Property

For decades, the New York Police Department has subjected people it arrests to a labyrinthine and bureaucratic process for retrieving their seized property. Often, poor New Yorkers — many without the legal assistance needed to navigate this process — give up on their property instead of trying to get it back.

In a rare disclosure to the public, the NYPD reported over $6 million in revenue in 2013 from seized cash, civil forfeiture, and property sold at auction. These documents also showed that the NYPD had a balance of more than $68 million in seized currency in any given month in 2013, meaning that it had accumulated millions over an unspecified period of time before then.

After seizing money or property, the NYPD rarely files civil forfeiture claims against individuals, but rather just lets enough time pass — 270 days — before it is considered “unclaimed,” and eventually makes its way to the NYPD’s pension fund. Currently, the NYPD has no idea how much money it has taken from New Yorkers it has arrested.

On February 9, after years of litigation, the NYPD and the Bronx district attorney finally agreed to new rules for property seizure. The settlement stemmed from a January 2016 lawsuit filed by the Bronx Defenders against the police department and the city in the Southern District of New York over what it sees as persistent theft from the city’s low-income communities.

“The settlement has far-reaching reforms that will require the NYPD and the Bronx DA to make significant changes to the way they handle these processes,” said Niji Jain, an attorney from the Bronx Defenders’ Impact Litigation Practice. “When someone is arrested, they’re supposed to get a voucher indicating what property has been taken. That wasn’t happening on a regular basis, and now as part of this settlement, the NYPD has reaffirmed their obligation to give people these vouchers and hold trainings for their officers and audits to make sure that it’s going to happen.”

The NYPD’s pattern of seizing “unclaimed” property is more common than civil forfeiture (which requires a court order) and places the onus of retrieval entirely on people who have been arrested, even if they’re never charged or convicted of a crime, by placing several bureaucratic roadblocks in their way.

“The government isn’t even affirmatively asserting a claim of civil forfeiture,” Jain said. “They’re just holding on to stuff and making it so difficult to get it back that people … give up and it gets retained permanently.”

Because of the settlement, in addition to now following through with pre-existing policies, the NYPD will make “common-sense” changes, like allowing people to use identification cards the department has seized during arrests to establish their identity as they try to retrieve their property (previously, if the NYPD had seized your wallet with your ID in it, you would have to track down a separate ID to establish your right to your own seized wallet).

One plaintiff in the lawsuit, Victor Encarnacion, was arrested in the Bronx in November 2014 (because charges against Encarnacion were dropped and the case was sealed, the Bronx Defenders, at the request of its client, would not reveal the nature of the charges). His iPhone taken by the NYPD and labeled as evidence. Six months later, after his case was dismissed by the Bronx district attorney, Encarnacion asked for his property back, but the NYPD property clerk told him he needed to get a release from the DA’s office, which repeatedly ignored his requests for one. Encarnacion only received the property release from the DA’s office after he filed the lawsuit against the NYPD, almost a year after his iPhone was first seized.

As part of the settlement, the Bronx DA has promised to release property immediately in cases that are dropped or resolved. New York City’s other district attorneys are not bound by the settlement, but the practice has been far more prevalent in the Bronx than in other boroughs.

Back in early 2014, in a series of articles for Gothamist, I first brought to light the NYPD’s arcane property retrieval system in the Bronx, reporting that was heavily referenced in an ongoing Freedom of Information lawsuit by the Bronx Defenders against the NYPD, seeking disclosure of just how much money and property the NYPD has seized during arrests.

Last fall, the New York City Council passed a law mandating that the NYPD provide annual reports on the amount of property it seizes each year. The first report is due in September 2018.

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