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Kim Foxx Just Released Six Years of Data — Most Prosecutors’ Offices Remain Black Boxes

Cook County SA Kim Foxx announcing last year’s data report.

Kim Foxx Just Released Six Years of Data — Most Prosecutors’ Offices Remain Black Boxes

On Friday, in what her office called, “the first [release] of its kind in the country,” Cook County State’s Attorney Kim Foxx made public six years of felony criminal case data. The data was released in four Excel tables delineated by stage — intake, initiation, disposition, and sentencing — and includes more than 45 million data points in total. Unique identifiers are used for cases, defendants, and charges, so any member of the public can trace them through each stage. This wealth of information comes on the heels of Foxx’s 2017 Data Report, released in mid-February, which briefly summarized some of last year’s felony prosecution statistics. “Our work must be grounded in data and evidence,” said Foxx, “and the public should have access to that information.”

The sheer amount of information included in this release means it will take more than a few days to decipher any major conclusions. But the mere fact that it is publicly accessible is in itself newsworthy. The Cook County state’s attorney’s office is enormously powerful. As the second largest prosecutor’s office in the country, it handles almost half a million cases a year on a $150 million budget. Every day, their decisions shape the futures of thousands of people. Yet, until now, we’ve had little information about what those decisions look like in aggregate.

Head prosecutors are democratically elected — and yet they rarely release even the most superficial data about what happens in their office, making it difficult for voters to hold them to account. “Data release from prosecutors is virtually non-existent,” says Tracy Siska, executive director of the Chicago Justice Project. In fact, in many jurisdictions, it’s not even clear how much data the staff maintains internally. If someone wants to know just how many people in their county were prosecuted for marijuana possession last year, what the average bail request is in a misdemeanor theft case, whether Black defendants and white defendants are offered the same bail amount for the same crimes, or even just the percentage of defendants that plead guilty in their jurisdiction, they are going to have a monumentally difficult time finding that information.

In some counties, prosecutors release an annual report, which often include a few statistics about their work. But those tend to be cursory and self-serving — an opportunity to brag about an astronomically high conviction rate, for example, or tout their cost-cutting skills. “Rarely is there something truly substantive available from a district attorney’s office,” emphasizes Fordham University Professor John Pfaff.

There are a few outliers besides Foxx — in California’s Santa Clara County, for example, District Attorney Jeff Rosen releases an annual Race and Prosecution report. And, in 2014, Vera Institute of Justice worked withDistrict Attorney Cy Vance to analyze racial disparities in Manhattan’s 2010–2011 criminal case outcomes. But Vance has not provided any update to his study, which is now six years old. And, unlike Foxx, neither Rosen nor Vance has released any raw data.

This lack of information makes it virtually impossible to know if prosecutors who claim to be reformers are keeping promises. Many elected prosecutors are facing a more demanding electorate, voters who reject the tough-on-crime affectations of traditional law-and-order officials. In cities like Philadelphia, Houston, St. Louis, Orlando, and even Chicago, voters have elected district attorneys who promise to take a less punitive approach to prosecution, and who are willing to confront the underlying struggles that many defendants experience, such as addiction, homelessness, and mental illness. And in jurisdictions around the country, organizers are struggling to figure out whether these reformers are staying true to their word — without useful data, they are reduced to cobbling together data points from other agencies and extrapolating from anecdotes. District attorneys in Manhattan and Brooklyn have repeatedly promised to stop prosecuting certain crimes such as marijuana possession and turnstile jumping, for example. “But the challenge is that when prosecutors say they aren’t prosecuting marijuana anymore, there is almost no way for us to know if that’s true.” says Nick Encalada-Malinowski, civil rights campaign director for VOCAL-NY.

Sometimes, organizers have to invest their own resources in accountability. Just last week, advocates in New York officially launched Court Watch NYC, a collaborative project created by VOCAL-NY, the Brooklyn Community Bail Fund, and 5 Boro Defenders. The project trains people to observe arraignments and bail hearings in New York in order to hold district attorneys accountable. “One goal is to have our own data, to be in control of our own data to counter false narratives,” says Encalada-Malinowski, adding that they want to “demystify the process and get people used to thinking about civic engagement with the DA’s office.” Court Watch NYC is reminiscent of programs in other cities, including Chicago. It’s a stop-gap solution to a major public failure — community groups and individuals combining their limited resources to make accountability possible. “Our hope is to get the data between the margins,” said Alyssa Aguilera, co-executive director of VOCAL-NY. “We want to understand how prosecutors behave and not just the final outcomes of the case.”

For prosecutors that profess to care about accountability, providing public data themselves should be non-negotiable. Foxx undoubtedly deserves recognition, but in an ideal world, we’d have access to much more information than she has offered so far. Her office handles 400,000 misdemeanors a year, none of which are included in this data. And even among the cases included there are still important data points missing — there’s no information about bail and pre-trial release, nor is there even anonymized data about the prosecutors handling each case. “The bottom line is that prosecutors should always release all of the data they have,” says Siska. Otherwise, “it’s always missing something. It’s always telling their version of what’s going on.”

Complex, robust, disaggregated data that is anonymous but individualized, and allows us to see exactly how the office functions day after day, is a minimum. “For too long, the work of the criminal justice system has been largely a mystery,” Foxx stated Friday. “That lack of openness undermines the legitimacy of the criminal justice system.” She’s right, and as voters and residents, we must demand information about how our prosecutors operate. Kim Foxx has offered a starting point, and other prosecutors should surpass it. Without this data, we’re forced to address some of the criminal justice system’s most pernicious conundrums — racial injustice, mass incarceration, criminalization of the poor — without a roadmap.

Movement to Reform New York’s Discovery Statute Faces A Familiar Foe: Prosecutors

NY Governor Andrew Cuomo (L) shakes hands with Manhattan D.A. Cy Vance
Mario Tama / Getty

Movement to Reform New York’s Discovery Statute Faces A Familiar Foe: Prosecutors

By the time Steven Odiase learned of the evidence that would set him free, he’d already spent six years in prison for murder. The Bronx district attorney pushed for Odiase’s conviction in the fatal shooting of 15-year-old Juan Jerez in 2009, based on the testimony of a single witness who put him at the scene. Then, in March of last year, his attorneys made a startling a discovery: a police report containing the statement of a previously unknown witness, whose physical description of the shooter did not resemble Odiase.

Years earlier, Bronx Assistant District Attorney Adam Oustatcher had received that very same police report. But before sharing such exculpatory material with the defense, as is required by law under Brady v Maryland, he first redacted the information unfavorable to his case. When Odiase’s attorneys did receive a copy of the report, there was no sign that detectives had ever spoken to the second witness. That change was made deliberately, by Oustatcher’s own admission, as part of the office’s policy of withholding information that could harm witnesses. Altering the report, he said, was “normal practice.”

Oustatcher, who now works for a Long-Island based law firm, will likely face no consequences for his actions. Prosecutors are rarely disciplined for even egregious misconduct; a 2016 Innocence Project report found that in 660 cases in which misconduct was identified, only one prosecutor was sanctioned.

In the months since the redaction in the Odiase case was made public, a growing reform movement has seized on the methods by which prosecutors provide crucial evidence to the defense. Known as criminal discovery, the process has garnered particular scrutiny in New York, where a so-called “blindfold law” allows prosecutors to withhold vast amounts of information — including police reports, witness statements, and grand jury testimony — until just before a trial which makes it difficult, if not impossible, for defense attorneys to properly investigate and prepare their case. A failure to present an adequate defense violates a defendant’s Sixth Amendment rights — “T]he right to counsel is the right to the effective assistance of counsel.”

But because of the “Blindfold law” and the fact that by one estimate only about 5 percent of cases ever go to trial, defendants frequently plead guilty without fully knowing the case against them. In the rare instances that defendants do go to trial, it’s not uncommon for witness statements to be provided to attorneys only hours beforehand. And then there are cases like Odiase’s, where prosecutors deliberately hide exculpatory evidence from defense attorneys — around 38 percent of the state’s 234 exonerations are caused by such Brady violations, according to the National Registry of Exonerations.

“New York’s broken discovery statute has empowered prosecutors for decades with an enormous advantage over the defense, undermining fairness and due process,” Tina Luongo, Attorney-In-Charge of the Criminal Defense Practice at the Legal Aid Society, told The Appeal. Similarly restrictive discovery laws can only be found in Wyoming, South Carolina, and Louisiana, a state known for having the highest incarceration rate in the world and rampant prosecutorial misconduct. Meanwhile, at least 35 other states (including New Jersey) have broad and early discovery, meaning that prosecutors turn over critical information like police reports and witness statements early in a case, without requiring defendants to file motions with the court to obtain them.

Despite the Manhattan district attorney’s office’s claim that “there is no empirical evidence that open-file discovery leads to more efficiency,” a host of studies suggest just the opposite. In a 2016 study published in the Washington and Lee Law Review, researchers compared closed file discovery in Virginia with open discovery in North Carolina, and arrived at a “data-driven endorsement of the idea that open-file discovery could facilitate more informed and more efficient case dispositions.” That same year, a report from the New York Mayor’s Office of Criminal Justice concluded that “standardized, broader and earlier exchange of discovery materials can promote quicker case resolutions.”

Defense attorneys have been arguing for broader and more open discovery policies for years, but it’s only recently that the state legislature has signaled a willingness to bring New York in line with the national mainstream. A bill introduced last January in the state assembly would add New York to the growing list of open file states, and it has the support of the New York State Bar Association, the Legal Aid Society, and the Innocence Project. Companion legislation is currently in committee in the state senate. Governor Cuomo voiced his support for “expanding the discovery process” last month, as part of a five-pronged legislative package aimed, in theory at least, at improving access to the justice system.

Of course, not everyone is thrilled that the logjam in Albany seems ready to break. Citing concerns over the safety of civilian witnesses, the District Attorneys Association of New York (DAASNY) has long opposed broader discovery policies and, according to Luong, is now actively lobbying against comprehensive reform. DA Associations are extremely effective in influencing public policy and unsurprisingly DAASNY’s opposition may be working, as evidenced by a slew of loopholes in Cuomo’s proposal, including the creation of an expansive “right of redaction” of witness information by prosecutors.

The Legal Aid Society said such a “right of redaction” will give prosecutors “blanket authority” to blackout the identifying information of witnesses. Defense attorneys cannot adequately prepare and investigate their cases without identifying and interviewing such witnesses. As well, under the Cuomo proposal, prosecutors could justify redactions based on a list of over one dozen qualifying considerations including a defendant’s reputation, alleged gang affiliation and perceived “public safety threat.” Perhaps most damagingly, the Cuomo proposal greatly expands the discovery that must be turned over by the defense, meaning that, according to Legal Aid, “the defense would have to turn over its witnesses’ statements before the prosecution has turned over its witnesses’ statements — and long before the prosecution is required to turn over the Grand Jury minutes of its witnesses.”

DAASNY President Scott McNamara told The Appeal that he was pleased with the “right of redaction” language, and was adamant that the differences between upstate and downstate courthouses make open discovery a nonstarter. Asked how the 35 other states that have broader and more open discovery manage to get around this problem, he responded, “New York is one of the safest states in the country, so why do we always feel that what we’re doing is wrong and we have to modify it to what someone else is doing?”

That sentiment was echoed by the city’s district attorneys during a recent City Council hearing on discovery reform. With the exception of the Brooklyn DA’s Office, which independently adopted open and early discovery in the 90s, representatives from each of the borough prosecutors’ offices cited witness safety concerns in explaining their reluctance to support the proposed discovery reforms. Robert Master, an assistant district attorney in Queens, was perhaps the most forceful opponent of the reforms, warning of “a unilateral renegotiation of the ‘See Something, Say Something’ social contract” if open discovery is passed at the state level. At the same time, each of the DA’s offices representatives insisted that their offices have taken steps in recent years to streamline the pre-trial information sharing process.

Excerpt from the Manhattan D.A.’s “expedited discovery” policy.

But defense attorneys say that minor policy shifts — like the Manhattan DA’s announcement of “expedited discovery” last year, which applies only to police witnesses — mean little in the absence of comprehensive changes to the state statute. They note that the promise of reform rings particularly hollow coming from Cy Vance’s office, which has earned a reputation for not only redacting the names of witnesses, but complainants as well.

“It’s a trial by ambush strategy, because the majority of the evidence that you’re given does not make sense without the name of the complainant or any of the witnesses,” says Rebecca Kavanagh, an attorney with the Legal Aid Society. As for the prosecutors’ fear about witness protection, Kavanagh sees their concern as “an absolute smoke screen” deployed to maintain a strategic advantage over the defense.

Yet despite the best efforts of prosecutors, many in New York’s public defense community are still confident that the state’s “blindfold law” will soon be lifted. “If former Texas Governor and current Trump administration Energy Secretary Rick Perry can enact one of the most comprehensive discovery reforms in the country,” notes Legal Aid’s Luong, “surely New York can.”

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Five Ways the Media-Driven Rape Kit ‘Backlog’ Narrative Gets it Wrong

Five Ways the Media-Driven Rape Kit ‘Backlog’ Narrative Gets it Wrong

Across the country, police departments have chronically failed to investigate rape cases, leaving rape kits — the physical evidence collected from a rape victim’s body — untested. Unfortunately, a false narrative has taken hold around the concept of a rape kit backlog.

Promoted by advocacy groups like the Joyful Heart Foundation (founded by actress Mariska Hargitay, who plays Detective Olivia Benson on Law & Order: SVU), this narrative presents law enforcement as victims of an overall lack of resources (faulty technology, overburdened labs, understaffed units) rather than perpetrators of a failure to investigate violent crimes.

Beyond dominating national and local headlines, the rape kit “backlog” has even become an element of pop culture, with former Vice President Joe Biden appearing as himself on Law & Order: SVU to commend Detective Benson on her work to “end the backlog.” Hargitay, a fictional sex crimes detective on a show that glorifies law enforcement, is a perfect spokesperson for a narrative that glosses over police failings.

The backlog narrative doesn’t only ignore law enforcement’s unwillingness to take responsibility — it enables it. That’s because it obscures the actual criminal justice policies and practices, like broken-windows policing and other “tough-on-crime” measures, that led law enforcement to de-prioritize violent crime.

The term “backlog”

Moving beyond the word “backlog” is the first step in understanding how law enforcement disregarded so many rape kits. While there are actual backlogs at some crime labs, “backlog” is an inappropriate word for the thousands of rape kits that police departments never submitted to a lab for testing in the first place.

Backlog “implies that the untested rape kits were in a queue awaiting testing by overburdened labs,” University of Kansas law professor Corey Rayburn Yung has argued. “That does not reflect the reality across the United States. In fact, untested rape kits were often simply discarded in warehouses, trash depositories, or storage closets with no intention to ever test the contents of the kits.”

The National Institute of Justice (NIJ) defines a rape kit as “backlogged” if it has been sent to a lab and has not been tested for at least 30 days after a request for testing was made. There is no justification for conflating this scenario with cases in which police never submitted rape kits to a lab in the first place.

The word “backlog” also re-frames law enforcement’s belated attention to neglected rape cases as heroic and redemptive. Never mind that in cases with unsubmitted rape kits, police also failed to do other investigative work.

While it’s easy to understand why law enforcement would embrace a narrative that denies its own role in creating the problem, it’s shameful that victim advocacy and news media continue to peddle this fiction.

A lack of resources caused rapes kits to remain untested.

In response to public criticism, law enforcement and victim advocates have blamed untested rape kits on a lack of funding, and media outlets have often reported their claims uncritically.

Wayne County Prosecutor Kym Worthy has publicly sought donations to test Detroit’s rape kits and prosecute the neglected cases. In Texas, State Representative Victoria Neave spearheaded new legislation allowing drivers license applicants to donate money to test rape kits. In California, lawmakers passed a measure creating a voluntary contribution checkbox on the state income tax form for those wishing to donate to rape kit testing.

But the funding to test rape kits already exists. In 2004, Congress passed the Debbie Smith Act, named after a Williamsburg, Virginia woman who was raped in 1989. The act was intended to address untested rape kits through grants to states and local agencies to conduct DNA analysis of untested samples collected from victims of crime and criminal offenders. Since 2004, the federal government has granted over a billion dollars to states and local agencies under this program.

Yet, it’s hard to know how that money is being spent. The NIJ, for instance, which oversees the Debbie Smith grant program, cannot provide basic statistics regarding the number of rape kits awaiting analysis or whether the funding was even used to test rape kits. Nor can it explain its criteria for awarding DNA testing-related grants or show proof that grant recipients satisfied the requirements outlined in their grant applications.

Given this lack of transparency, it is troubling that additional law enforcement funding continues to be advanced as a solution to untested rape kits. For instance, an additional $79 million is available under a partnership between Manhattan District Attorney Cy Vance and the Bureau of Justice Assistance’s Sexual Assault Kit Initiative. While these funds also require grantees to do certain things, like form “multidisciplinary working groups,” it’s unclear how the program will be monitored to avoid waste, dysfunction, and abuse.

It’s also been argued that labs lack capacity and staff. Yet, federal funding, including grants disbursed under the Debbie Smith Act, has been used to expand labs’ capacity and staff, increasing their ability to process DNA.

Because a lack of money is not the reason police failed to investigate rape cases, increased funding alone won’t solve the problem.

It’s a problem of “rape culture.”

High-profile advocates often attribute law enforcement’s poor record on rape investigations to attitudes toward rape in society at large.

“The rape kit backlog is just a perfect microcosm for how women and these crimes are regarded, and so through excavating and digging, you really see those victim-blaming attitudes,” Hargitay noted at a recent screening of her documentary I Am Evidence, which she produced and stars in. Discussing Detroit’s untested rape kits, Kym Worthy, who co-stars in the film, offered, “We have a problem in this country with rape culture.”

But that broad framing shifts the focus away from police culture, and the specific policies and practices that led to the problem.

The failure of law enforcement to properly investigate rape is not limited to testing rape kits. Too often, investigations are closed before a kit is even taken. Investigating and solving a rape case takes actual police work. Detectives must find and interview witnesses, interview the victim, track down evidence, corroborate the account of events with both the victim and witnesses, and compare the case details to unsolved cases to try to detect patterns. Yet instead of doing this necessary legwork, police unfound, downgrade, and “disappear” rape cases.

Take the Detroit police department, which, “under nine chiefs, both male and female, sustained a culture in which officers routinely neglected rape complaints or actively discouraged victims from seeking redress, all without fear of consequence,” according to Detroit Free Press columnist Nancy Kaffer. The department, like others, has a long history of underreporting rape. In 2001, the department admitted that the statistics it reported to the FBI for rape arrests — which were at least twice the national average throughout the 1990s — were seriously flawed. And in 2015, news media exposed that the department, again, had “vastly underreported” rape numbers to the FBI.

Meanwhile, the war on drugs still incentivizes law enforcement to focus resources on drug enforcement at the expense of solving violent crimes. Police departments have pushed ineffective stop-and-frisks while making complaints of real crimes disappear for the purpose of creating annual crime reductions.

Despite the myriad legislative efforts to test rape kits, police across the country are solving fewer rapes than they did in the past. Nationwide, the clearance for rape has declined sharply in the past decade, from 51% in 1995 to approximately 40%, where it has remained stable since 2005. In some cities, the clearance rate for rape is in the single digits.

A lack of training or technology led to the problem

Another popular notion advanced by the media is that inadequate technology prevented police from processing rape kits. “It started really in the late ’90s and early 2000s,” Rebecca O’Connor of the Rape Abuse and Incest National Network told NPR, “as we saw advancements in the science itself around DNA technology and as people started to literally open up the evidence rooms and warehouses across the country and discover these troves of kits in different jurisdictions.”

O’Connor echoed the talking points of former Memphis Mayor A C Wharton, who said in 2014 of his city’s 12,000+ untested rape kits, “Unfortunately, there were no processes in place to systematically test the older kits as DNA technology evolved to do so.”

But advances in technology did not unearth this discarded evidence, and law enforcement continued to disregard rape evidence after the advent of modern DNA technology.

Ohio Public Defender Tim Young, whose office is appealing convictions based on Cleveland’s neglected rape kit evidence (including the Demetrius Jones case), has criticized the narrative that DNA technology didn’t exist to solve rapes until recently, and is now miraculously solving cases.

“We’ve had DNA testing since the mid-1990s. They [law enforcement] were dilatory in not using it. It’s a continuation of broken police culture that places the police first, not the victims, the defendants — or justice.”

This excuse is even more flimsy considering that law enforcement has long used DNA to investigate and prosecute homicide cases.

Testing rape kits will solve the problem

While DNA testing is one step in investigating a case, it does not, in itself, represent a solution to unsolved sex crimes. After suffering the bad publicity of having large numbers of untested rape kits, police departments in cities like Memphis and Detroit have been eager to ship rape kits off for testing and report to the public on how many kits have been tested so far. But that doesn’t always mean they’ve made policy changes. In Detroit, the police department developed a “second backlog” of rape kits, never revealed to the public, that accumulated after the 2009 disclosures and promises of reforms.

Further, rape kit testing alone does not solve cases. The DNA results have to be put into CODIS, the national database run by the FBI which holds DNA samples. These cases still must be investigated and prosecuted. In some cases, the police and DA are unwilling or unable to do that work. In others, victims of decades-old crimes no longer want to pursue charges, have moved, or have died.

And even in cities that have tested old rape kits, convictions are rare. A Michigan State University study of Detroit’s rape kit testing efforts concluded that few of Detroit’s neglected cases were properly handled — even after rape kits were tested.

Meaghan Ybos and Heather Marlowe are the co-founders of People for the Enforcement of Rape Laws. The views and opinions expressed in this article are theirs and do not necessarily reflect the views of the Fair Punishment Project.

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