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Lawyer for Pedro Hernandez Says Bronx DA’s Office Is Still Withholding Key Evidence

Bronx District Attorney Darcel Clark (at podium)
Bronx District Attorney’s Office / Facebook

Lawyer for Pedro Hernandez Says Bronx DA’s Office Is Still Withholding Key Evidence

When Bronx District Attorney Darcel Clark announced last September that gun possession and assault charges would be dropped against teenager Pedro Hernandez, who had spent 12 months on Rikers Island, she pledged her office would investigate what went wrong, and that the investigation would “go wherever the evidence leads.”

A lot had gone wrong in the case against the then-17-year-old Hernandez, who was held in connection to a 2015 shooting: Detectives had allegedly beaten witnesses until they agreed to sign false affidavits implicating Hernandez, and the prosecution had promised further charges against Hernandez to justify a $250,000 bail. But those promised charges never materialized in later proceedings, and prosecutors’ further claims that Hernandez was an active gang member and involved in a check forgery scheme also went unsubstantiated.

Such instances of police and prosecutorial misconduct rarely see the light of day because defendants overwhelmingly accept plea deals, giving in to pressure from the daily horrors of life in jail and the possibility of longer sentences if they take a case to trial. But Hernandez refused to take a plea — he insisted on his innocence while his family hired a private investigator to look into the case. The investigator, Manuel Gomez, filmed witnesses as they recanted their statements and eventually uncovered widespread witness intimidation in the Bronx’s 42nd Precinct.

While detained on Rikers, Hernandez graduated from high school and received a full scholarship to college. His case drew headlines and high-profile support, in part because it echoed that of Kalief Browder, a teen who spent three years on Rikers on charges that were eventually dropped, and killed himself two years later.

But while supporters celebrated Hernandez’s release, the Bronx DA refused to drop a robbery charge against him relating to a stolen cell phone. Hernandez’s trial on that charge is scheduled to start today.

On the eve of trial, however, Hernandez’s lawyer is claiming that the Bronx district attorney’s office is still withholding potentially exculpatory evidence in the case, and proceeding in precisely the same manner it did before. In a motion filed by Hernandez’s lawyer Alex Spiro in Bronx Supreme Court late last month, Spiro alleges that the Bronx DA is still shirking its Brady responsibilities, which dictate that prosecutors must hand over any and all evidence that might be favorable to the defendant.

“Since the inception of this case, the Bronx District Attorney’s Office has demonstrated a disturbing lack of candor with the Defense and this Court, and has presumed Mr. Hernandez’s guilt regardless of what the evidence shows,” Spiro’s memo reads.

In early November, Hernandez’s lawyers asked the Bronx DA to hand over all remaining Brady materials that could impact the case against Hernandez, including the results of its own internal investigation into both police and prosecutorial misconduct (the prosecutor on the original case, ADA David Slott, has been transferred to the appeals division while the investigation plays out).

In late 2017, according to court filings, Hernandez’s defense attorneys uncovered that witnesses had given conflicting accounts of the robbery to the district attorney, information the DA was required to hand over to the defense but had failed to deliver. In December, a judge again “reminded” the Bronx DA of its obligation to hand over any relevant evidence to the defense. Finally, in late January 2018, the DA informed Hernandez’s lawyers of some potentially exculpatory information: The complainant witness in the case had tried calling his allegedly stolen phone shortly after the robbery, and a female voice had answered it.

Because the voice obviously didn’t match that of Hernandez, his lawyers argued that this evidence should have been turned over to the defense far earlier, and that it strongly suggests the DA is still invested in withholding evidence that might clear Hernandez of the robbery charge. “By the District Attorney’s own calculations,” the motion reads, “the People sat on this information in violation of its Brady obligations for approximately 778 days.” While it was eventually turned over, that means Hernandez’s defense team lost more than two years during which they could have investigated this lead, years in which he might have pleaded guilty, unaware of this information.

The fact that the DA had been sitting on testimony that could have cleared Hernandez of this charge points to systemic problems involving the treatment of exculpatory evidence at the Bronx district attorney’s office, something that even DA Clark has alluded to in recent statements, where she has called on outside law enforcement officials to look into the practices of her own office.

“My Office’s Public Integrity Bureau delved into the allegations surrounding the Pedro Hernandez case,” Clark said in a press release in November. “Because the investigation has broadened, we saw the need for additional law enforcement resources and the Acting U.S. Attorney for the Southern District of New York, Joon H. Kim, has agreed to assist my office in this investigation.”

But none of the results of the investigation into the 42nd Precinct, or the Bronx district attorney’s office, have been made available to Hernandez’s lawyer, even though this information could undercut the integrity of the government’s case. Given the lack of cooperation from the DA’s office, Spiro expects the hearing to be adjourned today (Hernandez also has a pending civil lawsuit against the city).

In a November 22 response to Spiro’s allegations of Brady violations, Assistant District Attorney Burim Namani wrote that any information on alleged misconduct could be found in lawsuits filed by Hernandez and others against the city, and by “googling Shaun King’s name, Pedro Hernandez’s name, Detective David Terrell’s name, Private Investigator Manuel Gomez’s name, Assistant District Attorney David Slott’s name, reporter Sarah Wallace’s name, the 42 Pct., and/or the title of Shaun King’s articles.” At the end of the letter, the ADA wrote,“People are fully aware of their constitutional discovery obligations, including their continuing obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and will continue to faithfully discharge those obligations.”

By refusing to take a plea deal, Pedro Hernandez exposed systemic police and prosecutorial misconduct, where evidence was fabricated to justify the arrests of young men of color. Over the next few weeks, we’ll find out just how seriously this particular district attorney’s office takes its constitutional obligations, and whether Pedro Hernandez will not only have beaten a series of bogus charges, but finally brought some measure of accountability to a system rife with abuses.

The LAPD Has a New Surveillance Formula, Powered by Palantir

LAPD officers line up in front of protestors.
Lucy Nicholson / Pool / Getty Images

The LAPD Has a New Surveillance Formula, Powered by Palantir

Los Angeles Police Department analysts are each tasked with maintaining “a minimum” of a dozen ongoing surveillance targets for future targeting, using Palantir software and an updated “probable offender” formula, according to October 2017 documents, obtained through a public records request lawsuit by the Stop LAPD Spying Coalition and given exclusively to The Appeal.

These surveillance reports identify “probable offenders” in select neighborhoods, based on an LAPD point-based predictive policing formula. Analysts find information for their reports using Palantir software, which culls data from police records, including field interview cards and arrest reports, according to an updated LAPD checklist formula, which uses broader criteria than the past risk formula the department was known to have used. These reports, known as Chronic Offender Bulletins, predate Palantir’s involvement with the LAPD, but since the LAPD began using the company’s data-mining software in September 2011, the department claims that bulletins that would have taken an hour to compile now take “about five minutes.”

Los Angeles police argue that targeting “chronic offenders” in this manner helps lower crime rates while being minimally invasive. But the Stop LAPD Spying Coalition, a community-based alliance that has advocated against increased LAPD surveillance efforts since 2012, paints a different picture of the Chronic Offender Bulletin program. The group calls it a “racist feedback loop” in which police surveil a set number of people based on data that’s generated by their own racially biased policing, creating more monitoring and thereby more arrests.

Field interview cards, for example, which provide information for the predictive checklist, often result from on-the-street racial profiling, argues Jamie Garcia, the lead organizer on the Predictive Policing campaign with the Stop LAPD Spying Coalition. “When we look at LAPD stops, the black population is completely overrepresented,” said Garcia in a phone call. The directives, she says, direct officers “to find these people and to basically harass them…. If you’re constantly being surveilled, constantly being harassed, the chance of something going wrong … The next thing you know, you’re a chalk outline.”

Legal scholars have noted that the institutionalization of risk formulas like the LAPD’s Chronic Offender program checklist can exacerbate existing patterns of discrimination by oversampling those already discriminated against, generating even more biased data that justifies further discrimination.

The LAPD declined The Appeal’s request for interview, and did not provide answers to written queries about the program. In an email to The Appeal, Palantir spokesperson Lisa Gordon confirmed that Palantir is used in the creation of Chronic Offender Bulletins, but stressed that the software does not automatically generate the reports and that the selection and vetting of people on these lists are part of “a human-driven process.”

How Pre-Crime Investigations Begin

The target identification process starts with a LAPD analyst looking for “probable offenders” by surveying police records. According to the LAPD documents, analysts deploy Palantir’s file-organizing software to conduct “work-ups” of these individuals, looking for records that add points to their predictive risk scores, which are based on factors, such as whether they are on parole and their number of police contacts in the last two years. Below is an image of one of these “work-ups,” generated a few months before the department adopted Palantir, which The Appeal found online, completely unredacted, in a May 2013 LAPD presentation.

An example of a research “work up” template created by an LAPD analyst to organize data points for the department’s predictive “chronic offender” formula.

Adding up points based on police stops and other criteria outlined in the formula, an analyst would then create “at a minimum” 12 Chronic Offender Bulletins for high-scoring individuals, and identify five to 10 others as potential “back ups” for the target list. The 12, ranked by highest point values, are then referred to officers to ensure the targets are not already in custody or being tracked. As the documents state explicitly, these targets are, at this point, legally “not suspects but persons of interest.” A “person of interest” has no defined legal meaning, but can simply mean someone who might have knowledge about a crime.

Critics claim that this essentially creates a cycle where anyone who has any history with the criminal justice system can now be subjected to increased surveillance for the foreseeable future, even if they’re not suspected of having any connection to a recent crime. On the redacted work-up above, which the LAPD confirmed as authentic in an email, the individual had been stopped twice in a single day on four separate occasions during a six-week period. All these stops would count as points in the predictive formula, making him a higher priority for the surveillance program.

Though the LAPD claims such reports are “for informational purposes only and for officer safety,” the report information is then fed to an internal LAPD database “for tracking and monitoring purposes,” according to the 2017 documents. Armed with this data, such as where target offenders have been stopped and what tattoos they have, special LAPD units are sent out to “engage” targets with specified tactics, such as checks for outstanding warrants or illegal gun seizures, which may lead to arrests.

Sarah Brayne, a University of Texas at Austin assistant professor of sociology, who conducted field research with the LAPD in 2015, says that officers are keenly aware that the bulletins did not give them reasonable suspicion or probable cause. “The language used when I talked with officers was, “Go talk to them, and you might catch them doing something, but there’s currently no PC [probable cause].”

Though the LAPD documents do not explicitly state that those on the list must be arrested, they suggest that once an individual lands on a Palantir-powered bulletin, police are supposed to continue monitoring the individual until he or she is in custody. According to a released PowerPoint presentation, for example, officers are expected to ask themselves “how many chronic offenders have been arrested” in the previous two weeks and what their strategies are for “outstanding offenders.”

Every week, analysts too are supposed to determine whether the individuals on their target lists “are active or in custody,” and then replace those who have been captured with so-called “back-ups,” other individuals scored as high-risk, creating new targets for police to engage.

Individuals can be removed from the surveillance list if they have not had any police contact for two years, says Brayne, but the program’s underlying logic is to incapacitate those determined to be the main drivers of crime.

Given the amount of scrutiny and routine contact that officers are instructed to pursue for people on the bulletin list, avoiding all police contact is not realistic, says Josmar Trujillo, an anti-gang policing activist in New York. “If you live in a community of color in America, you don’t have the choice of having these contacts,” said Trujillo in a phone call. “Oftentimes, you can be stopped just for being around certain people, whether it be car stops or stops of groups on a street, so this predictive policing idea that you have to earn your right not to be on the list is cruel because to avoid law enforcement for years — that’s not possible.”

Perverse Incentives?

The LAPD’s expectation that analysts have a minimum of a dozen targets on deck is possible thanks, in part, to the departments’ use of the software from Palantir, the controversial tech firm founded by libertarian billionaire Peter Thiel. As Craig Uchida, an LAPD consultant and research partner, told Wired, before Palantir was brought on board, LAPD analysts could not make enough surveillance bulletins to keep up with officer stops. At the time, he recalled, cops were stopping around 100 people daily in the South LA neighborhood the program was first implemented in, bringing in too much data for analysts to efficiently process.

The documents also suggest that LAPD brass have become more committed than in years past to fulfilling the Chronic Offender program’s goals for officer surveillance and “engagement” with those listed. According to the documents, at weekly crime control meetings, specialized units targeting offenders are supposed to give reports on “their progress” to date. Brayne says this is a relatively new development.

“There was definitely tracking of how many arrests, but that was largely to collect data to measure efficacy and make a case for continued funding,” she said.

The expectations, embedded in these predictive policing tactics, worries Garcia, who points out that such incentives could motivate or even force analysts and officers to make unfounded arrests just to check people off their bulletin lists. “So the LAPD is even surveilling itself,” Garcia said.

Brayne, on the other hand, pointed out that during her field work, officers had too many high-point offenders to deal with, not too few.

New Technology, Similar Victims

Activists also argue this predictive policing program could be giving new scientific and legal cover for traditional police practices in poor, non-white communities, viewed by some as racially discriminatory.

“The data is inherently subjective, and it has that implicit bias in it,” Garcia said, claiming that data drawn from raw police interactions necessarily bakes existing biases into the LAPD’s predictive risk models. And Brayne’s ethnographic findings about the culture of the LAPD suggests these concerns may be justified. “They say you shouldn’t create a — you can’t target individuals especially for any race, or I forget how you say that,” said one unnamed officer to Brayne, when asked why the department had shifted to its points-based surveillance system. “But then we didn’t want to make it look like we’re creating a gang depository of just gang affiliates or gang associates… We were just trying to cover and make sure everything is right on the front end.”

The documents also reveal a newer, more expansive version of the LAPD’s points-based Chronic Offender formula than has previously been reported. Older reports have shown that analysts were supposed to count points against individuals for gang membership, being on parole or probation, prior arrests with a handgun, past violent crimes, and “quality” police contacts. This newer version from October 2017 includes most those checkboxes, but expands the gun penalty now counting up five points for “each incident” involving any kind of gun over the last two years. It also counts up five points for each violent crime arrest, whereas the older version just counted five points if an individual had violent crimes on their rap sheet.

The documents were obtained through a public records lawsuit, brought by the Stop LAPD Spying Coalition in March, which sought information on a larger LAPD program in which the Chronic Offender Bulletins are used. Since 2011, that program, known as Operation LASER, has targeted Los Angeles neighborhoods with high densities of gun-related crimes, teaming up analysts and officers to target “chronic” offenders and areas. According to a 2017 LAPD grant extension request to the Department of Justice’s Smart Policing Initiative Grant Program, obtained by the Stop LAPD Spying Coalition, at the time, the department was targeting neighborhoods in South and Central Los Angeles, which are mostly Black and Latino, and planned to expand the operation to more police divisions across the city.

The LAPD has claimed success with the program — between 2011 and 2012, one area where LASER was operating experienced a 56 percent decrease in homicides (according to a 2014 report by the LAPD). But the report was unable to single out whether this was because of the use of Chronic Offender Bulletins or some other unrelated trend. Homicides in Los Angeles had dropped steadily since the early-nineties before leveling out around the middle of this decade.

But residents say these predictives tactics have come with a cost. “I feel like they already know who you are by the time they stop you or give you a citation. They already know your name and who you are hanging out with,” said one member of a focus group convened by the Stop LAPD Spying Coalition for a new report it released today, alongside the public records.

Another focus group member elucidated the dangers of constantly focusing police resources on a very specific population: “Because they over-patrol certain areas. If you’re only looking on Crenshaw and you’re only pulling Black people over then it’s only gonna make it look like, you know, whoever you pulled over or whoever you searched or whoever you criminalized that’s gonna be where you found something,” said the participant.

Activists say these testimonies are only their first step in their push for reforms. On June 5, Los Angeles is having its first hearing on data-driven evidence-based policing, says Garcia, where her group plans to push presenters, many of them with deep ties to the LAPD, on what impact this type of profiling can have on their target communities. Garcia wonders, “Where are the hard questions going to come from if you are working with someone to present this information to the community who has every motivation to make the community agree with these programs? There’s a lot at stake.”

Max Rivlin-Nadler contributed reporting to this article

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How Walmart is Helping Prosecutors Pursue 10-Year Sentences for Shoplifting

Mike Mozart
Flickr [CC]

How Walmart is Helping Prosecutors Pursue 10-Year Sentences for Shoplifting

It was late afternoon on Dec. 26, 2016 — the day after Christmas, a day when most stores are busy processing the returns for unwanted gifts — when Curtis Lawson entered a Walmart in Knoxville, Tennessee. He had a receipt for $39.57 in purchases made earlier that month. He needed cash. He walked through the store, picking up the same items he had purchased previously — dishwasher detergent, Oral-B refills, and a pair of girl’s jeggings — and put them in a shopping bag. He brought them to the register, returned the items using his receipt, and received $39.57 in cash. Lawson had committed what is known as “return fraud” — pretending to return items that you didn’t buy.

When Lawson walked into the Walmart empty-handed, Walmart loss prevention officer Robert McAuley decided he looked suspicious and watched him on the security cameras. He watched Lawson pick up the clothes and return them at the Customer Service desk. McAuley immediately detained Lawson, who admitted right away that he had stolen the items, and Lawson was eventually charged with shoplifting and criminal trespass. What came next was a startling encounter with a local criminal justice system heavily influenced by a big box retailer’s desire to reduce shoplifting and a prosecutor’s penchant for punishing those who are more unlucky than dangerous.

Lawson had at least three outstanding warrants, most of which were related to traffic violations, including a DUI. Lawson’s attorneys admitted that Lawson had a drug addiction and sometimes shoplifted to support his habit, but noted that he had never been accused of being a threat to anyone’s safety. Because of the outstanding warrants, his bail was set at $2,500 total, and he was immediately taken to jail. On January 9, a warrant was issued for Lawson that escalated his shoplifting charge to a felony because, according to the arrest affidavit, Lawson was not allowed to be inside Walmart at all. Therefore his return fraud was a burglary — a felony punishable by up to 12 years of prison. His bail was jacked up to $5,000.

In Tennessee, as in many states, shoplifting items under $1,000 is a misdemeanor. But, in the past few years, the Knox County district attorney’s office has been prosecuting people like Lawson under the burglary statute, which under Tennessee law is defined as “unlawfully and knowingly entering a building without the consent of the owner and committing a theft.”

It turned out that Lawson had been arrested for shoplifting a bra over four years earlier from another Walmart location. That time, Lawson was issued what’s called a “Notification of Restriction from Property” by Walmart loss prevention staff. This piece of paper essentially restricts someone’s access to Walmart by officially “evicting” them from the property forever. The notice informs Lawson that he is “no longer allowed on property owned by Walmart Stores Inc. or in any area subject to Walmart Stores Inc.’s control” and it includes “all retail locations or subsidiaries.” Such documents, according to the loss prevention officer at Lawson’s trial, are regularly issued at Walmarts across the U.S.

Lawson’s attorneys argued that charging their client with felony burglary was not appropriate because the store, rather than being a private residence or a warehouse, was open to the public. Assistant District Public Defender Jonathan Harwell, who has worked on similar cases and represents Lawson, believes that Walmart’s notifications are confusing. They are not consistently enforced: Lawson, for example, had entered Walmart locations countless times since receiving his notification. He’d made returns, purchased goods, and even showed his ID to buy food using his EBT card, all without a problem. There aren’t any “no trespassing” signs around Walmart and no other indication that potential shoppers are being checked when they enter the store. And, most likely, they aren’t. The only people who have access to the notices are loss prevention staff.

The law in Tennessee is confusing when it comes to prosecuting shoplifters on felony charges, so the decision is left to local prosecutors. A case in another county similar to Lawson’s, State v. Danielle Chandria Jensen, was dismissed when the judge decided the felony charge wasn’t appropriate. The appellate court that upheld the dismissal wrote scathingly that “the prosecutor had a strong desire to prosecute all individuals for burglary who had been arrested for shoplifting or theft who previously had been banned from the relevant store, a questionable goal when the harshness of a felony conviction and sentence for burglary is compared to the wrong committed, even for a repeat shoplifter.” The case was vacated by a higher court on a different issue, so the law remains unsettled.

Charme Allen, the Knox County district attorney, vowed after the Jensenappellate decision to keep up-charging shoplifters anyway. When I asked her office about the policy, Deputy District Attorney General Kyle Hixson responded via email: “The District Attorney’s Office prosecutes all business burglaries, whether the victim is a sole proprietor or a corporation, according to the provisions of the state burglary statute. Business burglary prosecutions of this type are not permitted for first-time offenders, as the defendant must be placed on the business’ no-trespass list due to prior criminal activity occurring on the victim’s property. These prosecutions have been a valuable tool to protect businesses from repeat offenders and to ensure that Knox County remains a safe place for businesses to operate.”

Walmart’s trespass notifications are part of the extension of private influence over parts of the criminal justice system that benefit third parties, like retailers. Walmart, in particular, has come under fire in the past for hiring too few employees (a cost-cutting measure), and then relying heavily on publicly funded local police to handle their shoplifting problem. I have previously written about Walmart’s “restorative justice” program, a private anti-shoplifting program in California that a Superior Court judge found to amount to illegal extortion. Around 2008, according to testimony from Lawson’s preliminary hearing, Walmart began implementing the trespass system, which allows them to keep records on who has shoplifted before.

Across the country, more state legislatures are increasing the penalties for multiple shoplifting offenses, a move that has been encouraged by the National Retail Federation, a trade group that lobbies on behalf of retail businesses. The Federation represents the interests of both small businesses — mom-and-pop shops — and big megastores like Walmart and Dollar Store. According to the trade publication Loss Prevention Media, “Legislation has become a primary tool used in combating organized retail crime.”

Little reliable information is available about “organized retail crime,” or about shoplifting in general. The only information out there comes from the National Retail Federation itself. In a 2014 study, the NRF said that shoplifting accounted for 38 percent of shrinkage (all lost inventory), or about $44 billion in losses. A valuation by Forbes estimated that, by these numbers, Walmart loses under $2 billion in shoplifting. The latest studies by the NRF have focused on what they call “Organized Retail Theft,” which an NRF studysays affects “9 out of 10 retailers,” creates a loss of “$726,351 per every $1 billion in sales,” and involves people “exhibiting much more aggression.”

In Tennessee, the push to make penalties for shoplifting harsher came from the Tennessee Retailer Association and the state representative from KnoxvilleJason Zachary, whose profile notes that he is a small business owner. Notes from the legislative sessions indicate that the provision, which would punish retail theft, gift-card fraud, and return fraud more harshly would “increase recurring local revenue by an amount exceeding $20,000 per year.” The retailer’s associations argue that shoplifting hurts local government by decreasing the sales taxes collected. The legislation also allows local law enforcement to keep the value of stolen gift cards as forfeiture money.

Other states are considering similar laws under the guise of preventing “organized retail crime.” For example, in California, the state retailer’s association has banded together with prosecutors and sheriffs to support a bill that would increase the penalties for shoplifting. These lobbyists argue that recent changes to California’s laws have made it difficult for law enforcement to detain and prosecute shoplifters, which is hurting their bottom line.

Lawson was convicted of burglary in March. He is still waiting for his sentencing hearing, but because of the burglary charge, his options for parole or alternative sentencing are limited. A representative from the Knox County DA’s office pointed to Lawson’s long list of felony charges, indicating that he is likely to receive the maximum sentence of 12 years in prison. Lawson’s attorneys in the public defender’s office have noted that these felony prosecutions have increased since the 2014 election of current Knoxville District Attorney Charme Allen, who vowed to crack down on crime and has prosecuted a large number of cases under the state’s gang statute, which was recently struck down by the Tennessee Court of Criminal Appeals for being too broad. In the meantime, it appears that the new law is being used not to prosecute dangerous retail gangs, but rather to penalize those who can least afford it, like Lawson.

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