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Internal Documents Reveal How Bronx Prosecutors Are Taught to Slow Down Cases

The tactics outlined encourage courtroom ‘dishonesty’ and ‘gamesmanship,’ legal experts argue.

Bronx District Attorney Darcel Clark (at podium)
Photo credit: Office of the Bronx DA

Internal Documents Reveal How Bronx Prosecutors Are Taught to Slow Down Cases

The tactics outlined encourage courtroom ‘dishonesty’ and ‘gamesmanship,’ legal experts argue.


In 2013, Ms. U*, a Bronx woman in her 40s, got into a scuffle with another resident in her building. The police, summoned by Ms. U, came about six hours later but made no arrests, and Ms. U thought that was the end of it. She had no prior criminal record and, according to a case dismissal motion filed by her attorney, her neighbor did not go to the hospital. Yet two weeks after the incident, police arrested Ms. U. Her charges, for allegedly grabbing her neighbor’s neck and hitting her on the left arm, resulted in a simple Class A misdemeanor that could have been resolved quickly. Instead, her case dragged on for three years until her defense attorney successfully moved to have the case dismissed.

The lengthy ordeal made life difficult for Ms. U. Not only did she have to make numerous court appointments and deal with the stress of a potential sentence, but she also had to abide by a court-mandated order of protection for her neighbor, who, according to court documents, would sometimes seek her out, thus putting Ms. U in danger of rearrest.

How does such a simple case go on for so long? Ms. U’s attorney says it was because Bronx prosecutors initially claimed they were ready for trial, but then at various intervals said they weren’t, which resulted in considerable delays between her hearings because of the Bronx’s clogged court calendar.

But internal training documents from the Bronx district attorney’s office, obtained by The Appeal, indicate that protracted cases like Ms. U’s are not simply the result of an overburdened court system. According to the documents, prosecutors are being taught courtroom techniques with the explicit goal of stretching out cases, thereby undermining defendants’ rights to a speedy trial.

The right to a speedy trial is enshrined in the Constitution’s Sixth Amendment, but how it’s enforced at the state level is largely left to courts and state law. Many states require that a court date occur within a certain time frame, or the case gets dismissed. But New York is different. In New York, this speedy-trial “clock” is pegged to how long prosecutors can take to get “ready” to proceed: 60 days for Class B misdemeanors like graffiti and petty larceny and 90 days for Class A misdemeanors like Ms. U’s.

In practice, however, prosecutors can choose to easily manipulate this system, delaying trials for a year or longer. The documents obtained by The Appeal show that Bronx prosecutors are taught a strategy of declaring “readiness” in misdemeanor arraignments, like Ms. U’s, with the explicit goal of stopping the speedy-trial clock. This readiness is often declared by the Bronx DA’s office before a lead prosecutor has even been assigned to the case, interviewed every witness, or gathered necessary documents. Then, often months later, prosecutors can repeatedly say they are not ready, requesting small delays (one week here, one week there), which lead to months-long adjournments because of the court’s packed schedule.

The training documents indicate that such tactics are institutionalized in the Bronx, and although it’s impossible to know how many defendants that affects, cases in the Bronx drag on longer than those anywhere else in the city. In 2016, it took on average 38 percent longer to reach trial verdicts in the Bronx than it did citywide. That translates into hundreds of extra days on average that the borough’s defendants have to endure the repercussions of ongoing criminal cases.

Law professors and public defenders who have reviewed the documents say these delay tactics keep people in jail and in court unnecessarily, incentivize innocent people to take plea deals, and encourage implicit dishonesty in the courtroom. Former Bronx prosecutors point out that these tactics are legal, and argue they are an unavoidable consequence of enormous caseloads and a system that invites such conduct.

“New York’s idea of a prosecutorial readiness law rather than a speedy trial law has no parallel,” Jocelyn Simonson, a professor at Brooklyn Law School, told The Appeal. “Pinning the statutory speedy-trial clock to the prosecutor rather than the court lets the court system itself off the hook for delay. And, perversely, it gives a prosecutor who wants to delay a case a tool with which to do so in many cases. It’s the worst of both worlds.”

‘The bane of our existence’

New York’s unusual speedy trial statute is a result of lobbying from the state’s district attorneys, explained Thomas O’Brien, a staff attorney at New York’s Legal Aid Society, the city’s largest public defenders organization. In the early 1970s, when state judges were considering rules that would dismiss certain cases after six months if they had not been brought to trial, the District Attorneys Association of New York launched a campaign to block the reforms. The association’s then-president, Bronx District Attorney Burton B. Roberts, claimed such measures would enable “legalized jailbreak.” Instead, they proposed that prosecutors have to be “ready” for trial before a defined deadline. In 1972, Governor Nelson A. Rockefeller, now notorious for the Rockefeller drug laws (which would pass the next year), helped pass a speedy trial statute in line with prosecutors’ demands.

But even New York’s relatively weak speedy-trial law is seen in the Bronx district attorney’s office as an obstacle to be overcome. It’s “the bane of our existence,” states one slide in the 2017 training presentation obtained by The Appeal. Bronx prosecutors’ “goal,” it says, is to “stop the clock,” referring to the time prosecutors have to get ready before charges get dismissed.

The presentation tells prosecutors that “at arraignments,” which take place on average less than 24 hours after an arrest, “we state ready and enter into a post-readiness posture.” At that point, the case has little to no chance of moving forward, explains Simonson of Brooklyn Law School, so there’s virtually no risk for prosecutors in stating that they are ready. Simonson says that when a prosecutor states “ready” at arraignment, “at best, it is a good faith statement that … the ADA is confident that she will have access to the witnesses and evidence she needs to prove the case weeks or months in the future. At worst, it is a disingenuous bluff put forward with the knowledge that she will never have to answer for it, since so few cases go to trial.” Regardless, this statement stops the clock that is supposed to tick away prosecutors’ allotted time for getting ready for trial. The slide goes on to urge prosecutors to “get that complaint converted,” meaning seek eyewitnesses’ sworn confirmations of the complaint’s veracity. Former Bronx prosecutors The Appeal spoke with said they interpret the law to mean that once a so-called complaint conversion was complete, they could declare readiness to proceed.

But defense attorneys disagree. While no state appeals court decisions have clearly prohibited the practice, they point to several trial court rulings that have found that complaint conversion alone is not sufficient, and prosecutors are supposed to have necessary witnesses and documents imminently available before declaring trial readiness. In People v. Beckett, for example, the court held that prosecutors should not have claimed to be ready for trial in a case where they had an eyewitness since they had not yet received results on a lab report for alleged marijuana possession.

The documents show that the Bronx district attorney’s office is “training prosecutors to engage in deception and gamesmanship,” Bennett Gershman, a law professor at Pace University and former Manhattan prosecutor, told The Appeal. “There could be a huge gap between making that conversion and actually being ready,” said Gershman, noting that the prosecutor at arraignment has likely not interviewed and fully vetted witnesses and obtained necessary documents. “I know they want to stop the speedy clock … but that doesn’t mean the end justifies the means.”

In fact, the presentation itself likens prosecutors’ “readiness” claims at court arraignments to a poker game. If a judge “threatens to send case out to trial” after the prosecutor has claimed they are ready, one slide says, the prosecutor should not “be distracted” and is told to “keep your poker game face on.”

“They know they’re not ready so they’ve got to maintain their poker game face. This is bluffing,” said Gershman, who says prosecutors in this situation often try to get the defense to say they aren’t ready (and thus stop the clock themselves) or scramble to get a plea or basic materials for a potential trial.

The presentation also reminds prosecutors that if they are not ready for trial at future hearings, there are yet more ways to slow down the court process. “If you are not ready, remember you will only be charged for the time you ask for,” the presentation reads. Therefore, the slide notes, prosecutors should ask for the “least, yet legitimate” amount of delay time, so that the limited number of speedy trial days available for prosecutors to try a case are not wasted.

Babe Howell, a professor at CUNY School of Law, said the documents indicate Bronx prosecutors are intentionally asking for unrealistic, short adjournments to ensure the speedy trial clock ticks down slowly. “They know that due to court congestion, if I say ‘I’m going to be ready in two days,’ the court is going to adjourn for six weeks.”

‘What do you mean you’re ready?’

The Bronx district attorney’s office, which has been plagued by scandals and accusations of prosecutorial misconduct under the leadership of Darcel Clark, declined The Appeal’s requests for an interview on this matter and said “no comment” in response to written questions.

The training documents confirm that tactics to stop the speedy-trial clock have become routine in the Bronx, argues O’Brien of Legal Aid, who reviewed the documents.

“I was surprised to see this on paper, but not that much because it’s consistent with what they do, and since these are new lawyers, you would expect they don’t do this on their own, they do this because they’re instructed to do so,” said O’Brien. “I’m not saying they can never say ‘ready’ at arraignments, but that would be an unusual case because most of the time these cases involve more than one witness and multiple documents.”

Jason Foy, a defense attorney and former Bronx assistant district attorney, agreed that these practices were questionable, but said prosecutors are just doing their jobs. “They’re just … stopping [the clock] early because they know problems could develop later.” But, he continues, when a prosecutor states “ready” at arraignment, it should be taken with a grain of salt, “because the case is less than 24 hours old, what do you mean you’re ready?”

Some former Bronx prosecutors acknowledge that feigning readiness and asking for the shortest adjournment possible is enabled by court congestion. One former prosecutor, who requested anonymity citing concerns over professional reprisal, said there’s little accountability because a judge is unlikely to scrutinize prosecutors’ claims of readiness or look into their subsequent requests for delays.

And if cases drag on, defendants have no real recourse under state law to protect their right to a speedy trial. That’s because a prosecutor being ready to go to trial and actually going to trial are not the same thing. Because the clock is pinned to prosecutors’ readiness rather than an actual court date, the Sixth Amendment right to a speedy trial is not being protected.

Legal practitioners on both sides of the courtroom say that structural and legal factors beyond this weak statute exacerbate the Bronx’s case delay crisis.

New York’s controversial discovery law, for instance, allows prosecutors to withhold evidence until the day of trial and interacts with the trial-readiness statute to further delay proceedings. The presentation points out that prosecutors “CAN be ready without having supplied discovery!!” That means prosecutors can stop the clock before they hand over discovery materials—forcing the defense to decide between pushing the case to trial without the materials, or stopping the clock themselves.

Just below that comment, the presentation warns prosecutors that the practice may be risky. But nonetheless, the statements of readiness are encouraged.

The high volume of cases in the Bronx also pushes prosecutors to engage in these tactics, says Foy. “The reality is, given the volume of cases, and you have 90 days to try each case, you can’t try all your cases in 90 days,” Foy said. “The criminal justice system would collapse.” It’s not fair to injured parties, he added, to have cases dismissed too quickly. “The guy who got punched in the face, he doesn’t want the case dismissed because [the prosecutor] didn’t say the right thing in court.”

Bronx County is currently in federal court with the Bronx Defenders, a public defender nonprofit, which alleges that delays and congestion at the county criminal court violate defendants’ right to a speedy trial. Public defenders associations, like the Legal Aid Society, are also pushing to amend New York’s statute to force prosecutors to hand over discovery materials before they can claim readiness in court and count congestion delays toward limits on how long a person  can be held in jail pretrial. One such bill—named after Kalief Browder, a Bronx man who died by suicide after spending three years in jail pretrial—was passed in the State Assembly last year, but was never voted on in the Senate. (Darcel Clark, the current Bronx district attorney, was the judge on Browder’s case from December 2011 to September 2012.)

That legislation would have given judges the ability to stop or start the clock and not automatically exclude delays due to court congestion. The bill was fought by the state District Attorneys Association. Its then-president, Rockland County DA Thomas Zugibe, said at the time that the organization was “fundamentally opposed to any bill that would allow a guilty defendant to escape prosecution merely because the state has failed to provide sufficient resources to the criminal courts.”

The former Bronx prosecutor thinks the current law, as it stands, is one of the major forces keeping defendants in limbo. “Honestly if anything is gonna change in the Bronx, that’s the main thing you’re gonna have to change,” the former prosecutor said, referring to New York’s speedy-trial law and the courts’ inability and refusal to stop delays enabled by the statute. “You just can’t be ready on all those cases.”

*Full name withheld at lawyers’ request.

Correction: This story has been corrected to note that Thomas O’Brien, a staff attorney with the Legal Aid Society, did not say the problem of claiming readiness too soon seemed more prevalent in the Bronx. 


If you are a current or former Bronx district attorney’s office employee, please contact us with tips. Reporters George Joseph and Simon Davis-Cohen can be reached on the secure phone app Signal at 929-282-2471 or by email at gmjoseph@protonmail.com or s.davis.cohen@protonmail.com. To ensure your messages are end-to-end encrypted, use a free Protonmail or Signal account.

The Appeal Podcast Episode 10: Racism and Corruption in Child Protection Courts

With journalist Roxanna Asgarian.

The Harts (left to right: Hannah, Abigail, Ciara, Jeremiah, Jennifer, Devonte, Markis and Sarah)

The Appeal Podcast Episode 10: Racism and Corruption in Child Protection Courts

With journalist Roxanna Asgarian.


When we think about the criminal justice system, we don’t usually think of Child Protective Services (CPS), but the agency’s impact on communities of color and the poor is enormous. One case in Texas caught national attention: a seemingly compassionate white couple, the Harts, adopted African-American children taken from their mother by a judge in Texas accused of corruption and racism. The couple then drove their car off a cliff, with the children inside, a deadly act suspected to be intentional. Our guest, Appeal contributor Roxanna Asgarian, joins us to talk about this case and how the state takes children from their parents.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter.

Transcript:

Adam Johnson: Hi welcome to The Appeal, a podcast on criminal justice, abolition and everything in between. I’m your host Adam Johnson. Remember, you can follow us on Twitter @TheAppealPod or on Facebook at The Appeal Podcast and you should subscribe to us on iTunes if you haven’t already. State Child Protective Services is an under covered element of our criminal legal system, but its impact on communities of color and the poor is felt as much if not more than any other aspect of the legal system. One case, that of the Hart family caught national attention as a white couple adopted African American children, taken from their mother by a corrupt and likely racist judge in Houston, Texas. It turns out that the adoptive white parents were themselves very abusive and ultimately ended their children and their own lives in a grisly murder suicide earlier this year. Our guest, Appeal contributor Roxanna Asgarian joins us to talk about this case and the broader social and racial aspects of the state taking children away from their parents.

[Begin Clip]

Roxanna Asgarian: It seemed very clear to a lot of people actually that abuse was happening and people were reporting and investigating, but every time the moms were allowed to keep the kids. And in the Oregon CPS file the thing that was so interesting was that case worker said, ‘the problem is these women look normal.’

[End Clip]

Adam: Welcome to the show Roxanna.

Roxanna Asgarian: Thanks for having me.

Adam: So you wrote a piece for The Appeal, which I actually read twice, a sort of very fascinating, something that I don’t know much about. Um, and I think our listeners should really know about and that’s the ways in which family custody courts work.

Roxanna Asgarian: Yes.

Adam: And you focus specifically on one case, well you focus on several, but you focus primarily on one case, which is the case of the Hart family. There’s a piece you wrote in The Appeal on July 12th called, “Before Children’s Grisly Deaths, a Family Fought for Them and Lost.” Before we get into the sort of legal implications in the weeds, let’s, let’s just give a broad overview of what happened.

Roxanna Asgarian: Okay. Um, so in late March, the national story broke, which was a, an SUV was found at the bottom of a cliff in California with an entire family inside. It was two white adoptive mothers and their children. Two of the kids are still missing, so they are presumed dead, but four of the kids were found at the bottom of the cliff. It captivated readers because, uh, it was really gruesome and then a lot of stuff started coming out about the decade proceeding this tragedy, which involved a lot of like abuse reports being made against these women in several states. And it began to paint a picture of these women sort of evading law enforcement and child protective services and culminating in these kids deaths.

Adam: Right. So, and then there was, of course, their biological family.

Roxanna Asgarian: Yeah. So, um, so all of the kids were born in Texas and I live in Houston. So I, um, the way I got involved with the story is that the Oregonian, out of Portland, um, found a court document that kind of opened the case up about three of the children’s biological families. Texas seals all these records, so it’s really hard to glean information about adopted kids. So this court document sort of opened up the ability to find this family. There’s three other kids that nobody knows who their biological family is still. They’re from Corpus Christi and I think they’re still having problems locating anybody down there. So, um, so the Houston case was really interesting and the way that I think of it is like the original injustice, um, these kids really had a lot of terrible things happen to them throughout their life. But, um, but it all started for three of them here in Houston and, you know, it’s linked to the, um, to the court system here. So they got taken from their mom because she had a drug problem and they were given to a relative, a paternal aunt and that aunt had them for five and a half months. In Texas you need to have them for six months before you can adopt. So she had them for five and a half months and they were taken from her because she had allowed their biological mom to watch them while she was not at the home.

Adam: Right. And so then they were taken and given to this family, this couple who at that point had had a history of abuse.

Roxanna Asgarian: Yes. The couple was living in Minnesota. So that was the interesting piece of information was the couple never lived in Texas and they had already adopted the first three children from Corpus Christi and by the time they adopted the second three, there had already been an abuse allegation made against them.

Adam: The sort of crux of the piece or where the rubber hits the road in terms of the broader implications is the summary nature of the, of the court proceeding. So I think this is a totally opaque, an unknown part of the criminal justice system to most people. Now obviously you always want to protect the kids and then there’s a huge racial aspect which we’ll get to later. But can you give us a quick rundown of specifically in this case and this and this district in Houston and those surrounding it of how quickly these procedures take place into what extent biological parents are kind of caught in a cycle of criminality that makes them lose their kids. I mean their kids are being, for lack of a better term, kidnapped, which is a sort of super serious thing. Right? And it seems like in certain places, and especially in this instance, it happened without a lot of due diligence or kind of meaningful oversight.

Roxanna Asgarian: Right. Well, there’s definitely questions about how much due diligence was made since that abuse allegation was, you know, it’s interesting because this court, it seems to have a pattern of this kind of behavior. So typically what happens is when parents lose custody of their children, they are put into foster care. They are usually, I mean oftentimes there’s some addiction stuff or um, you know, some other issues. So depending on what the issues are, typically they work with a parent to try to solve those issues. So that’s the first step, would be like trying to reunify the kids with the parent and if that doesn’t work then they go to sort of immediate family, um, and they try to find a home, which they call kinship care. They try to find a home for the kids with their family members and then after that they, they look sort of outside for people who are willing to foster them. And often the ultimate goal is adoption in those cases. But what was happening in this court, at least in this particular case, the whole thing went really fast. For instance, kids are often in foster care for a couple of years or so before they even start talking about terminating parental rights. Um, in this case it happened really quickly. They were taken in 2005 from their mom and they were placed with the aunt shortly after that, 2006 and um, and the parental rights were terminated that year in 2006. So that’s pretty quick. And that’s usually, I mean, that’s a sort of an irrevocable step. So usually you really want to make sure that the, you know, uh, that’s like a end stage goal and that is if the kids are going to be adopted. So what, uh, what happened with this family, what they said happened, was that their attorney advised them that if they wanted the kids to end up with the aunt, that they should terminate their rights because that’s a necessary step for adoption.

Adam: Right.

Roxanna Asgarian: So, um, so they sort of did that with that in mind. And then, uh, before the aunt’s case was even totally, um, decided in appeals court, the kids had already been adopted by this Minnesota couple for over a year. So that was a really fast process. And the, you know, the biological family they’re in kind of various stages of poverty. They didn’t have a very fluid grasp of the court systems and it’s unclear that they really, for instance, with the parental termination, if they were fully aware of what that actually meant and that seems to be a pattern in this courtroom where parents are kind of urged to terminate their parental rights and many of them who are sometimes very young or don’t speak English or have some other things that kind of impede their understanding of the proceedings, are kind of pushed into it.

Adam: So obviously this is a, this is a case where it went awry. Um, we do want to note that in most cases I think it’s not like this necessarily but I think what it shows is how there’s a stigma around drug addiction. There’s a state like Texas, which I know from experience, basically does nothing to help people with addiction or people who are suffering from chronic mental issues. And so everything becomes criminalized and this becomes harder for people to get help and to become, to go back to the parents. So the solution is just sort of take away from them. There’s a huge racial aspect of this I really want to talk about. This is a case where the children were African American and the parents were white. And there is obviously a huge, you know, there’s a huge, and this, this is not just the United States, but globally, there’s a huge issue about white savior complex taking in children from either the global south or African Americans or Latinos in the United States. Um, can we talk about that? Do we know the phone have figures on that? Do we know the kind of scope of the racial asymmetry? And to what extent do you feel that perceptions of black mothers, and this is a very long question, forgive me, but you know, we, we, you know, from things like the kind of crack baby myth to the welfare queen, these kinds of black mothers stereotypes kind of stack the deck against those who are having their children taken from them?

Roxanna Asgarian: Yes. Oh, statistic wise, I’m not really sure. And I think it’s hard because not everyone, I mean, you know, the system itself is extremely overburdened. So especially in Texas, there was a federal lawsuit that happened, I guess was what? 2015. Where a federal judge found that Texas was violating foster children’s civil rights. Um, because of the treatment that they were experiencing, the ones in long term care that never did get adopted, just really awful, terrible things happening to them while they’re in the care of the state. So there’s that, you know, so it’s hard because the situation involves a lot of people who are really vulnerable and no money and resources really, not adequate at least, to really address the problem. So, um, so that’s uh, you know, I mean that’s sort of the context around it. And then there are some within that, there’s kind of egregious examples of, of judges who may, um, who at least appear to have bias in their decisions and in their treatment of people who come in their court. And what was interesting about this case is the biological family remembered the name of one of the judges that they went before. And that was interesting to me. So this was back in April when I first interviewed them after they first found out and they said, ‘Okay, Patrick Shelton,’ you know, I said, do you remember who? I just kinda threw out that question and they said ‘Yes, Patrick Shelton.’ And I thought, huh, well that’s really, I just, you know, this was um, I guess what? 12 years ago, so, you know, so that, that stuck with them and um, I looked him up and there was a lot of reporting done locally about that judge and others in this same sort of juvenile, CPS court, uh, you know, the three courts here in Harris County that paint a picture of, um, of courts that we’re really not basically sort of that baseline of respect of understanding the gravity of the situation when you take kids away from their parents. That was missing a little bit.

Adam: Yeah. Shelton, of course you write that he had complained about people speaking Spanish in his court, He was somewhat venal. There was a, he had a habit of appointing attorneys who had donated to his political campaign quite a bit. He fell under scrutiny in the late nineties and early two thousands. Um, and he seems to be the more kind of extreme end of the spectrum where someone who, according to Elmer Bailey, who’s the Harris County Juvenile Probation Director, she said, quote, anybody who speaks to you at any length about Shelton will tell you the man is obsessed with efficiency, with speed. Now, efficiency and speed may sometimes be in contrast or may sometimes be intentioned with, with justice or fairness. Is this case specifically the one you wrote about, is it indicative of a broader pattern?

Roxanna Asgarian: Yeah. Well, it seems to be, um, there’s several cases that were reported by a local columnist about eight or nine years ago that fit this almost exactly where family members of kids in the system were attempting to gain custody of the kids and they were getting sort of sidelined in favor of foster families who would go on to adopt the kids or you know. And so these two cases that were reported in 2009, those were cases where families were reaching out to the media because they were realizing that this wasn’t justice. But they were under resourced in terms of like legal help, so, um, and you know, so it’s, it seems like sort of an unfair fight. And then there’s on top of that you do lay the appearance of bias. I mean Shelton, if you read some of those old, the old Houston press stuff on Shelton, um, and one of the sources for this story, who is an assistant district attorney here in Harris County, she remembered that he would have an atlas on his bench and he would like flip it open to say where are you from? Like to a person in front of him that had an accent. And then he would look at that and he said, ‘Well, that looks like a great,’ like, you know, like thumb to it on the atlas and say, ‘Well that looks like a great country, why don’t you go back there?’

Adam: Jesus.

Roxanna Asgarian: So this is pretty, like, it seemed very, it seemed pretty blatant, you know, and it was interesting to um, for me the first clue to that was the family remembering his name after twelve years, you know, and I think just from speaking with their family and other people who are in their orbit, it doesn’t seem like it’s that uncommon for just the people in that neighborhood actually to have stuff like this happen.

Adam: Yeah. Well, they say that memory is tied to trauma. I would imagine that there’s probably quite a few people who remember his name.

Roxanna Asgarian: Yeah.

Adam: So in this particular case there was a pattern of abuse that was ignored. The question is, is it sort of generally accepted that there’s a kind of asymmetry if you have a kind of like middle-class typically white adoptive parent are they held under a different microscope then the people who are subject to the tearing away of children?

Roxanna Asgarian: Yeah. Well in this case, clearly, I mean this is a clear example of that because in the case of the Hart children, there were investigations open in every place that they lived. They started in Minnesota. Then they went to like the Portland, Oregon area, then they were in Washington and there was investigations following them in all of these places. The Oregon CPS released their records. So that’s, you know, kind of voluntarily did that. And that was a really interesting window into, because, you know, it almost seems, it seems like, how could this have happened?

Adam: Right.

Roxanna Asgarian:  You know, where abuse allegations are made. Friends of theirs reported them kind of basically starving their children, withholding food. The kids were really small and emaciated, um, when they were still in public school, they had pulled them out, but teachers would see the kids eating out of trash cans and they wouldn’t tell their mothers because they knew that they would punish them severely. So it seemed very clear to a lot of people actually that abuse was happening and um, people were reporting and investigating. But every time the moms were allowed to keep the kids and the, in the Oregon CPS file the thing that was so interesting was that case worker said ‘The problem is these women look normal.’

Adam: Normal. Not at all a racialized term.  

Roxanna Asgarian: Yeah. “Normal” and they’re able to speak to the problems the kids have, the mental health problems in the trauma from their abusive upbringing. In this case, they’re talking about their biological families alleged abuse. And so the people tend to assign the problems to the kids. That was the way that the CPS case worker had, um, and I thought that was so striking. Yeah. They look normal and there was several examples of the kids themselves, um, you know, going to the neighbors a dozen times for food telling teachers that they were abused. There was several examples of the kids just not being believed.

Adam: Well, they, they weren’t normal so.

Roxanna Asgarian: Well, yeah, it definitely had a racial element to it.

Adam: No, I sometimes feel like we need an equivalent of the sort of anti-Semitic parentheses. Like there needs to be like a bracket around, like ‘they’re not normal,’ like for African Americans. So like every time people use the word Chicago is shorthand for black.

Roxanna Asgarian: Yeah.

Adam: So and then, not only that, the mothers themselves spok in racialized terms when talking about the children’s past. Jennifer Hart told a New Zealand paper in 2014 that the children were born with quote, “drugs pumping through their tiny bodies” um claiming that one of the kids had smoked, consumed alcohol, and handled guns, been shot at and suffered severe abuse and neglect at the age of four years old.

Roxanna Asgarian: Yes.

Adam: Now obviously that’s pretty racialized, a little bit over the top. I’m trying to imagine a four year old shooting guns. But um, yeah, so, so they, they themselves rely on this kind of racialized language to justify their own abuse.

Roxanna Asgarian: But interestingly positioning themselves as like not racist. So they were saying ‘see racism exists and we’re just here to talk about how wonderful these children are’ and you know, ‘how they can succeed despite this,’ you know. So when all this came out, it captured a lot of national attention because it was such a clear example of the ways that we fail kids and especially black kids.

Adam: So one thing is there’s this, there’s this corruption element to it. One assistant district attorney referred to it as a pay-to-play system.

Roxanna Asgarian: Yes.

Adam: Can you talk to us about this and how this kind of helps exacerbate what is already a sort of a kind of racist or classist issue?

Roxanna Asgarian: Yeah, definitely. Um, so I spoke to one attorney on background who has like a lot of experience with these CPS cases in Texas and elsewhere and he sort of described it this way, he said, you know, ‘The system is so overburdened, so underfunded, there’s basically no way to do it with the resources that are allotted.’ And so sometimes people kind of say, okay, well this is broken, so how do I benefit from it? Essentially. And the interesting part is, um, Shelton retired, but it seems like a lot of the names that were in these stories about the pay to play system are sitting and heavily involved today. So essentially, and this is sort of a kind of in the weeds thing, but what was happening in that court in, in, um, at least one other court that handled the same types of cases, was that the judges, who are elected, um, would be appointing attorneys in the CPS cases. And that’s something that you do in every single CPS case. At least one appointed attorney for the child because the child isn’t going to be getting their outside counsel, not in this scenario.

Adam: Right.

Roxanna Asgarian: So, um, so these appointments were going to a select few attorneys who were donating sometimes heavily to the judge’s campaigns.

Adam: Oh. Yeah. Okay.

Roxanna Asgarian: So and it’s pretty well documented. The Chronicle wrote something a decade ago about it naming Shelton and others by name specifically and um, people, I mean, it seems to be a pretty widespread problem and not just in these types of cases, at least throughout Texas. You know, but the issue with it, and especially in a courtroom that prizes speed over all else is that the attorneys then who are appointed to represent the child’s interests and wishes, um, end up feeling pressure from the judge to either get the case off the docket, which seemed to be what was happening in that particular courtroom, or to sort of reach a resolution that the judge was in favor of, um, you know, so these attorneys and judges were like friends. I mean, like one of the attorneys that was one of Shelton’s favored for appointments was the former law partner of the judge next door. And now-

Adam: Oh yeah.

Roxanna Asgarian: And after Shelton retired, this person, Glenn Devlin, took his place as judge.

Adam: (Chuckles.) Oh god.

Roxanna Asgarian: So, you know, the two courts are staffed by like law partners, you know, that were like campaign chairman for this guy.

Adam: Yep.

Roxanna Asgarian: It’s very, very like tight knit and these people all, it’s like friendships even. And, and. Yeah. And so that, um, I mean that calls into question the best interest of the kids. Like these are kind of contentious cases sometimes they’re very, very difficult cases. Sometimes there really is heroin abuse happening in the kids families. You know, they’re very difficult cases to parse. And if you overlay this thing where I’m getting money, like, you know, my livelihood depends on this judge then even if it wasn’t conscious bias, your performance is, it’s compromised.

Adam: Right. So what were the efforts to reform this? What are activists in Houston and in the broader country, do you know, what, what are they doing to try to try to provide a little bit more balance to this system?

Roxanna Asgarian: Well, a state senator from Laredo, Judith Zaffirini, she introduced and helped pass a bill in 2011 that basically requires a wheel system for appointments. So there, you know, so judges have to keep a list, turn in the list and then sort of go down the list when they’re appointing attorneys. And that was in response to some other corruption happening in Laredo in those courts that was unrelated to CPS. But she said sort of, ‘I cracked it open and it was like, wow, I realized how many ways this was being misused across Texas.’ So, um, so that law went into effect. It’s one piece of it that I still think could use some untangling is just exactly how well that’s being implemented.

Adam: Right.

Roxanna Asgarian: You know, I talked to an attorney who practices in the CPS, uh, in those courts for CPS cases today and has done so for twenty years and she, um, she seems to feel like it is not much different now than it was back then.

Adam: How do they gain that? Is there like a pre selection process or post selection process?

Roxanna Asgarian: Well, typically, and this is, this is sort of not just from 2011, but typically they have to be added to a list based on their sort of understanding of juvenile law.

Adam: Oh okay.

Roxanna Asgarian: So, you know, so that makes sense that there’s sort of a list of attorneys that would be doing and so I think lawyers submit their name and they get approved and it’s an, it’s a, there’s three courts that do this in Harris County and it’s a vote between all three of the judges on who is able to be added to the list. And um-

Adam: Oh okay.

Roxanna Asgarian: And so what was interesting, at least back in, you know, at the time of this reporting, um, there would be attorneys who didn’t want to play along with the system. So wouldn’t donate, uh, to the campaigns or maybe, uh, maybe brought, you know, brought up some of this as unfair, um, that they would be taken off of the list.

Adam: Yep.

Roxanna Asgarian: And uh, so that happened and there was some media reporting of that and you know, so it really does become about, uh, these attorneys livelihoods and that’s basically been made explicitly clear. So, you know, there have been efforts made. That wheel system in theory would take a lot of this out. I mean, the ultimate issue of attorneys donating to judges campaigns is not, hasn’t, I mean, that’s still allowed and people do it. So-

Adam: Right. Seems like a slight conflict of interest.

Roxanna Asgarian: Yeah, it does and you know, I think it is super widespread. I also feel like it, I mean, yes, it does to me appear to be a conflict of interest just in on its face like regardless of if that does sway anyone’s decision making or arguments, it just looks bad.

Adam: Hey, it’s not corruption if you legalize bribery.

Roxanna Asgarian: (Laughs)

Adam: That’s how you stay off of those Corruption Indexes that they have. Other countries make the mistake of outlawing it, see that’s their problem.

Roxanna Asgarian: Yeah.

Adam: Well, I think on that a warm and fuzzy note, we will wrap it up. I really appreciate you. This, this is something that I think is almost, is very rarely reported on and so it’s, it’s, um, I know I learned a lot and I hope our listeners did too.

Roxanna Asgarian: Oh, good. Well thanks for having me. I really enjoyed the talk.

Adam: Thanks to our guests Roxanna Asgarian, writer and contributor to The Appeal. I’m your host Adam Johnson. This has been The Appeal Podcast. Remember, you can follow us on Twitter @TheAppealPod and subscribe to us on iTunes if you haven’t already. This show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn and the executive producer is Sarah Leonard. Thank you so much for joining us. We’ll see you next week.

 

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Meet ‘Bob Smith,’ The Fake Facebook Profile Memphis Police Allegedly Used To Spy On Black Activists

New records obtained by the Appeal show the account seems to have been monitoring Black Lives Matter activists for years.

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Meet ‘Bob Smith,’ The Fake Facebook Profile Memphis Police Allegedly Used To Spy On Black Activists

New records obtained by the Appeal show the account seems to have been monitoring Black Lives Matter activists for years.


Last week, The Appeal broke news on documents revealing that Memphis police were surveilling Black Lives Matter activists and distributing dossiers on individual protesters among law enforcement. Among the revelations was the discovery that the Memphis police appear to have used a fake Facebook profile named “Bob Smith” to befriend and gather information from these activists’ private social media posts.

The Appeal has now obtained screenshots of interactions that this alleged police account has had with multiple activists. The records show that the account, at times, gave activists contradictory information and sought to gain their trust.  

The police department was confronted with the “Bob Smith” account in an April 2018 deposition for the ACLU of Tennessee’s lawsuit over the surveillance. During the deposition of a police officer who had engaged in surveillance operations, the city’s lawyer claimed answering questions about the “Bob Smith” account might disrupt past, present, or future police investigations.

When an ACLU attorney asked point blank if it was a police account, the officer’s lawyer declared that they would not allow any testimony “on the details as to how the Bob Smith account is employed by the Memphis Police Department.” Later when the ACLU asked about whether a police officer had other social media accounts beyond those he used personally, his lawyer again insisted he not answer because that would get “into the details potentially of the Bob Smith account.”

The account appears to have tracked activists for years. Facebook messages obtained by The Appeal, show that Bob Smith was friending activists as early as August 2015. One activist, who wished to remain anonymous citing fears of further police scrutiny, said that they received a friend request from Smith as late as February 2017, around the time of protests over President Trump’s travel ban.

In one June 2016 Facebook Messenger conversation with another activist, reviewed by The Appeal, the account claimed to be “Tim Ryan” from “Fayette County.” In their conversation, the account said that he was politically to the “left of Bernie,” referring to U.S. Senator Bernie Sanders of Vermont, and even referenced other Memphis activists in an apparent effort to gain trust and access. The activist responded, “Fuck yes. I’ve been seeking like minded thinkers locally. It’s a relief to know they’re out there.” In a phone call, the activist, who requested anonymity citing personal safety concerns, confirmed that he eventually accepted the friend request. Two months after the conversation in which “Bob Smith” said he was “Tim Ryan,” this activist was arrested at a Black Lives Matter protest for “criminal trespass.”

Activists suspect that this “Tim Ryan” account is operated by Memphis police detective Timothy Reynolds. The released police documents also strongly suggest Reynolds’s involvement with the account. The records show that Reynolds was able to see and identify an activist’s private Facebook post, which he then forwarded to a colleague to screenshot. In court, Reynolds said his personal social media accounts are “locked down” and are “mainly police officers and college buddies.” Because of this, Reynolds’s personal account may not have been able to access such a private post, but “Bob Smith,” a Facebook friend with many activists, could have.

The court documents also note that Reynolds and a partner were the primary agents leading the department’s social media protest monitoring efforts. Beyond tracking activists and their associates, Reynolds went so far to acquire an undercover cell phone, which he used to contact the same activist that “Bob Smith” friended, while calling himself “Tim Ryan,” according to the documents.

A slide from the Memphis police department's presentation on activists and their friends

The Memphis Police Department declined to respond to The Appeal’s questions about Reynolds’s alleged involvement in the Bob Smith account and other questions about the account’s activities.

In a 2017 interaction with another activist, however, this Bob Smith/ “Tim Ryan” account contradicted his earlier claims. To this activist, he claimed to be from Oxford, Mississippi, and did not give the name “Tim Ryan” when asked, simply calling himself a “fellow protester” and insisting that he was not a cop.

Despite these seemingly clumsy techniques, Memphis organizer Keedran Franklin told The Appeal that several activists let their guard down, as they were getting a flood of friend requests at the height of police brutality protests in 2016. “A lot was going on in the bridge protest, so people got into this culture of accepting friends without checking,” Franklin said in a phone interview. He said that instilling a culture of digital security has become a major emphasis in the activist community since then. “So people would trust it because of their mutuals in the social justice world.”

This approach may have allowed Memphis police to further track the activist community. According to the police deposition documents, as The Appeal previously reported, the Memphis police obtained a friends-only Facebook post of activist Paul Garner, who had recommended a Saul Alinsky book. The police then not only collected information on that post but the names of 58 friends who “liked” the post. In a phone call, Garner said he found such collateral collection one of the most “disturbing” parts of the revelations.

“These are people who just follow my posts and aren’t even actively involved but may support our work,” said Garner.

Asked why he accepted Bob Smith’s friend request, Garner said that he, like many, activists is always seeking to meet with like-minded progressive community members. “I’ve noticed that account liking my stuff over the last few years, and I’ve always assumed there are cops on my profile, many of whom I’ve blocked,” said Garner, referring to the Smith account, which he says is now blocked. “Since then I have been checking friend requests more.”

The first anonymous activist said their stance on security has also changed somewhat, but that their old attitude is still shared by many in their community. “Back in 2016, I was a little more lenient,” said the activist, who noted that they realized the dangers of surveillance during pipeline protest activities. “But even to this day I have 16 mutual friends with Bob Smith.”

The Facebook account describes Bob Smith as a “Protestant” and “anarchist.” Smith’s “liked” pages include several activist groups, such as Black Lives Matter groups and a Palestinian solidarity group. The account also “liked” the pages of a local historically Black Baptist church, Bernie Sanders, the Southern Poverty Law Center, I Love Being Black, and Red & Black Anarchists 2.

The account’s “events” page also included a variety of progressive demonstrations, including local police-reform group action in 2016 and labor-affiliated actions, such as a “$15 for Memphis” rally in 2015.

According to emails released by the city over the course of the ACLU’s litigation, social media surveillance helped police track activists in real time. A September 2016 email, for example, showed how police at Memphis’s Real Time Crime Center were updating each other on activists’ meeting locations.

One of the anonymous activists interviewed by The Appeal said that this apparent online surveillance was disturbing, despite its sometimes clumsy execution.

“That can be hilarious when you’re talking to Bob Smith online,” said the Memphis activist. “But it’s terrifying when you see how they just arbitrarily decide that someone’s dangerous and then unlawfully surveil someone or their family or friends,” referring to the fact that police tracked not only activists’ posts but who had “liked” those posts on Facebook.

Franklin believes that the police tactics were intentionally harming the activist community. “They wanna scare people to silo out the movement, and that will happen as some people will sit back too scared to come around,” said Franklin. “To go after who is liking people’s posts, it makes me feel they are targeting our family and friends. They’re trying to get as many connections and contacts as they can.”

This dragnet community surveillance extended beyond activists, and into the larger Black community in Memphis, as Brentin Mock noted last week in CityLab. Authorities attended numerous events undercover, such as church meetings, food truck festivals, and a memorial service for Darrius Stewart (a 19-year-old killed by Memphis Police in 2015).

The revelations support many residents’ suspicions that some Memphis police do not want to work with Black residents and may even seek to harm them, said Tami Sawyer, a Democratic nominee for a seat on the Shelby County Commission, who was named at several points in the police surveillance documents.

“My parents have always been concerned if I’ve done work for Black Lives Matter or anti-Confederate statue protests,” Sawyer said in a phone interview. “Whenever I go out of the house, my dad says ‘you got your car lights working?’ , ‘you got your license?’ because he doesn’t trust that I’ll be kept safe. … That’s hard for me as a daughter to know my father knows I’m a target of the city for speaking up.”

The path forward, argued one of the activists, is not in trying to stop all police surveillance, a task he says is impossible, but to go forward knowing the risks. “There’s no way around surveillance,” he said in a phone call. “So you have to act being firm in your belief, being out there blatantly, being committed to your principles.”

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