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In spite of policy change, Minneapolis body camera program falls short

In spite of policy change, Minneapolis body camera program falls short

The fatal shooting of Minneapolis resident Justine Damond, a white Australian native, by police officer Mohamed Noor in July reignited a local debate about the use of body-mounted cameras. Noor and fellow officer Matthew Harrity didn’t have their body cameras on when Damand was killed, a revelation that spurred interim Police Chief Medaria Arradondo to immediately require city police officers activate their cameras during all civilian interactions. Before Damand’s death, officers were required to use these cameras during traffic stops and when the potential for criminal activity was present, but not necessarily for all encounters with civilians, City Pagesreports.

Yet two months after the new policy went into effect, an audit reveals that many Minneapolis officers still struggle with proper use of the technology. While the amount of footage recorded by officers has more than doubled since Damond’s death, officers frequently did not check to see if the cameras were working properly, or turned them off prematurely. Many officers also failed to correctly categorize video, making it more difficult to locate for review and in some cases, causing footage to be inappropriately deleted. As a result, the audit found that 7 percent of use of force video and 29 percent of general video was either missing or lost.

The audit’s most damning conclusion concerned the lack of oversight of the program. It found that supervisors are not reviewing footage to ensure officers are using the cameras correctly. “There’s some people who never have it on,” said City Councilmember Linea Palmisano at a news conference last week. “This is a very expensive program, and there isn’t oversight of this, and there isn’t governance.”

Chief Arradondo conceded that “there’s still a lot of work to be done, and we’re still learning.”

Hennepin County Attorney Mike Freeman recently told NPR that the existence of video documenting Noor’s encounter with Damond would have provided “more concrete evidence” for him to assess whether to charge Noor. Earlier this month, the County Attorney told community members he was “saddened by the death of this fine young woman,” adding that it “shouldn’t have happened.” He was criticized for these comments by Mayoral candidate Nekima Levy-Pounds in a Facebook post, who called the statement a prime example of “why many people of color feel that there is a double standard in how the system, and decision-makers within the system, treat people differently on the basis of race and socio-economic status.”

The Minneapolis audit, along with the responses of public officials, highlight broader problems local police departments across the country are experiencing with newly-adopted body camera programs. As Brooklyn College Professor Alex Vitale recently observed for In Justice Today, the increased use of cameras seems to create as many problems as it solves, including controversy over who controls the footage, and when cameras should be turned on and off. Despite the hopes of many, these programs appear to be falling short when it comes to increased transparency and rebuilt trust between officers and the communities they serve.

Underage teenager faces life as registered sex offender for having sex with underage girlfriend

Harris County Courthouse
Wikimedia Commons

Underage teenager faces life as registered sex offender for having sex with underage girlfriend

A 14-year-old Houston teenager may be a registered sex offender for the rest of his life after he was charged with having sex with his 12-year-old girlfriend.

The seventh grader, whose name has not been revealed, has been charged with aggravated sexual assault of a child. His girlfriend is in the sixth grade, the Houston Chronicle said.

“He had consensual sex with his little girlfriend and he loved her. They were boyfriend-girlfriend,” the teen’s mother said.

Texas law has the “Romeo and Juliet” exception, which means that having sex with a juvenile under the age of consent is not illegal, if you’re less than three years older than the person who is under the age of consent.

But that law only applies if both sexual partners are at least 14. If you’re 13 or younger, the Romeo and Juliet exception isn’t valid.

“The idea that a 14-year-old who has sex with a person just a little bit younger than him or her would be treated as the worst of the worst in our society and placed on the sex offender registry is really sick,” said the teenager’s attorney, Joseph Gutheinz. “If he has sex with someone who is younger by just days but is still 13 years old, he could be charged with one of the most serious offenses we have. It just blows my mind.”

The arrest occurred in May but Gutheinz confirmed to In Justice Today that the case was still pending. He expressed frustration that the case had not been resolved.

“This is a good kid,” Gutheinz said. “He shouldn’t have to go through this.”

Gutheinz told In Justice Today that children in this situation have no idea they’re committing a crime until after the fact.

“These kids don’t understand the law,” he said. “They’re only really worried about mom and dad finding out.”

Gutheinz said he was seeking to resolve the case in a way that ensured that the teenager would not have to be a registered sex offender.

The office of Harris County District Attorney Kim Ogg has not commented on the case.

Jackie Stewart Gravois, an attorney with the Harris County Public Defender’s Office, told the Houston Chronicle that judges don’t usually make juveniles register as sex offenders in cases like this. Judges have the final say in whether someone will be a registered sex offenders.

“Very rarely do the juvenile judges in Harris County force anyone to register,” she said. “They usually delay it and send them to sex offender treatment and then make a decision.”

But Ira Ellman, a professor at the UC–Berkeley School of Law, told In Justice Today it’s not unusual to see 14-year-olds charged as sex offenders and facing life on the sex offender registry.

Some reports, including one from the Bureau of Justice Statistics, have found that the age with the highest number of people arrested for a sex offense is 14, Ellman said.

The Marshall Project recently reported that more than 800,000 people were on sex offender registry lists nationwide.

“And contrary to popular belief, violent serial pedophiles do not fill the ranks of the registered,” wrote David Feige, who did the report. “Rather, a wide swath of sexual thoughts and actions can lead to the lifetime of stigmatization that being on the sex offender registry entails.”

Thanks to Jake Sussman and Josie Duffy Rice.

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Prior Conviction Impeachment: Is Reform Finally Afoot?

Prior Conviction Impeachment: Is Reform Finally Afoot?

At a recent conference of Washington State judges, a panel of experts discussed prohibiting “impeachment by prior conviction” — that is, the practice of attorneys using prior convictions to attack the credibility of witnesses, including criminal defendants. This practice is used in the federal system and in all but three states. In 1963, Kansas enacted a statute prohibiting the impeachment of criminal defendants, as long as they don’t proclaim their trustworthiness on the stand. In 1971, Hawaii’s State Supreme Court banned the practice, ruling that it violated the state and federal right to testify. Montana followed in 1976, extending the ban to all witnesses.

Then came forty years of stagnation.

Change may now be afoot, at least in Washington. Panelists and audiences at the conference offered several critiques of the practice, particularly with regard to criminal defendants. These included the following:

1. This area of the law is in tension with relevant social science. Prior conviction impeachment rests on assumptions that we have a “character for truthfulness” or for “untruthfulness,” that this character will influence trial testimony, and that certain convictions are a reliable way to shed light on this character. It also assumes that jurors will abide by the counter-intuitive instruction that they should use a conviction only to determine a defendant’s truthfulness as a witness, and not to assess his or her guilt in the case at hand. These assumptions lack social science support.

2. This practice compounds racial inequities. A prior conviction may be facilitated by the racial bias that exists throughout the criminal justice system. The use of one conviction to help bring about another one may compound such inequities. (In an analogous context, this kind of embedded disparity persuaded Judge Nancy Gertner to refuse to enhance a defendant’s sentence on the basis of convictions that she feared were the fruit of racial profiling.)

3. This practice allows racial stereotypes to run riot. The threat of prior conviction impeachment frequently chills defendant testimony. If jurors do not hear directly from the defendant on the witness stand, they are more inclined to draw upon biases (implicit as well as explicit, including racial stereotypes) when assessing a defendant’s potential guilt.

4. This practice removes important voices from the courtroom. One of the many potential benefits of defendant testimony is that it may bring to light a narrative of innocence. Professor John Blume found that the threat of prior conviction impeachment frequently silenced such narratives. In his study of exonerees, 91% of those with prior convictions had waived their right to testify at trial. The most common reason was that they feared the effect of this form of impeachment.

5. Supreme Court case law in this area stymies defendants. The threat of prior conviction impeachment poses a significant dilemma for defendants with criminal records: testify and risk being “crucified,” or forego testimony and suffer the “silence penalty.” The Supreme Court has created additional minefields for federal defendants, providing in Luce v. United States (1984) that those who decline to testify lose their ability to appeal an adverse impeachment ruling, and in Ohler v. United States (2000) that those who testify about their convictions on direct examination — in an effort to defang them — also lose their ability to appeal.

During the panel discussion, a voice rang out in the conference hall. “Are there any proposed rules pending before the [state] Supreme Court to amend this practice?” Justice Sheryl Gordon McCloud, a member of the State Supreme Court’s Rules Committee, responded that there were not, but that the Committee invited such proposals.

Invitations extended at conferences don’t always lead to action. But there are good reasons why abolition of this practice, whether through rule change or, as in Hawaii, through constitutional ruling, would be fitting in Washington State.

First, state decision-makers recently took dramatic steps to reform a related area of the law — the peremptory challenge, and the Batson doctrine that polices it. These steps included two Supreme Court decisions, and a proposed court rule within the last four years. Each of the five critiques mentioned above was also cited in support of these reforms: decision-makers cared that a growing body of social science research on implicit bias is irrelevant to the Batson doctrine; they cared about the racial disparities and stereotypes perpetuated by the peremptory strike; they cared about the threat to jury diversity posed by such strikes; and they found that, in Batson, the Supreme Court imposed a “crippling burden” on defendants to prove discrimination, “even where it almost certainly exists.”

Second, Washington courts are trying innovative new ways to reduce the effects of stereotypes in jury decisions. The Western District of Washington recently created an implicit bias video, along with a set of instructions for jurors. Some state courts have followed suit.

Both efforts demonstrate that the state is serious about limiting the influence of stereotypes in the courthouse, whether harbored by attorneys or jurors. State officials can build on this progress by banning the practice of prior conviction impeachment. For what this practice rests on, rather than social science, is stereotyping — about what a conviction means, and about who someone with a conviction is. There is a tension in a legal system that the one hand urges that stereotypes be driven out of the selection and the decision-making of jurors, and yet, on the other hand, instructs those jurors that when it comes to deciding the truthfulness of a defendant such stereotypes are still good law.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

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