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New Orleans DA bullies public defenders for doing their job

Orleans Parish DA Leon Cannizzaro
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New Orleans DA bullies public defenders for doing their job


An Assistant District Attorney with the Orleans Parish DA is claiming that the Orleans Public Defenders’ office fraudulently obtained records in the case of a man accused of killing a New Orleans police officer in 2015. The charge is just the latest example of the DA making allegations of misconduct against public defenders for simply doing their jobs.

Assistant District Attorney Inga Petrovich claims in a motion that the public defenders improperly requested medical records of Boys’ relatives to support his plea of not guilty by reason of insanity. But one of Boys’ attorneys, Billy Sothern, said the prosecutors’ claim is based on a typo and blasted them for pursuing “false, reckless and unprofessional charges.” Boys has a family history of mental illness and had a psychotic episode in 2014, making these medical records critical to his defense.

Indeed, the collection of mental health records on the client and several generations of a client’s family is an essential component of death penalty defense work. Boys was facing the death penalty until the Orleans DA’s office decided to take it off the table in June; he will now go to trial on October 23 for first-degree murder and faces life in prison if convicted. Capital cases demand lengthy investigations into a defendant’s entire life story, including family and any history of trauma, to make the case for why they should not be put to death. The American Bar Association death penalty guidelines specifically state:

It is necessary to locate and interview the client’s family members (who may suffer from some of the same impairments as the client), and virtually everyone else who knew the client and his family, including neighbors, teachers, clergy, case workers, doctors, correctional, probation, or parole officers, and others. Records — from courts, government agencies, the military, employers, etc. — can contain a wealth of mitigating evidence, documenting or providing clues to childhood abuse, retardation, brain damage, and/or mental illness, and corroborating witnesses’ recollections. Records should be requested concerning not only the client, but also his parents, grandparents, siblings, cousins, and children. A multi-generational investigation extending as far as possible vertically and horizontally frequently discloses significant patterns of family dysfunction and may help establish or strengthen a diagnosis or underscore the hereditary nature of a particular impairment.

The Orleans DA’s office has a pattern of treating robust defense investigation as criminal activity. As I reported in May, public defenders have been repeatedly threatened with criminal charges for routine work like interviewing witnesses or obtaining records.

In December 2014, OPD investigator Taryn Blume was charged with impersonating a peace officer, a felony that carried up to two years in prison. Blume had spoken with housing authority security officers about obtaining a report and had given them her OPD business card. One of the officers mistakenly told his supervisor she worked for the prosecutor’s office. Based on this moment of confusion, the DA spent nearly two years with more than ten prosecutors pursuing the case before they abruptly dropped the charges in January.

A few years earlier, in July 2009, another OPD investigator, Emily Beasley, was charged with kidnapping because she talked to two girls outside their house while their mother slept inside. Cannizzaro also brought charges of contempt against Beasley and her two supervising attorneys based on an unrelated court order barring different public defenders from talking to a different witness. She was led out of court in handcuffs. The conviction was quickly reversed by an appeals court.

Private defense attorney John Fuller also became a target of the DA’s ire last year. Cannizzaro compiled and distributed an inch-thick dossier on Fuller’s supposed misconduct, accusing him of witness tampering and meeting with other attorneys’ clients in jail. The DA sent these allegations to several law enforcement agencies, but nothing has come of it.

“The real motivation behind this charade is an effort to create a chilling effect on my office and others who aggressively and effectively fight for the constitutional rights of our clients,” Fuller told the Times-Picayune. “But I cannot and will not be intimidated by Mr. Cannizzaro, his cronies or his tactics.”

Orleans prosecutors have also regularly threatened public defenders with arrest, sometimes by reminding them of Blume’s case. One public defender, Sarah Chervinsky, testified that Jason Napoli, the ADA who secured Blume’s indictment, had threatened her and her clients’ family with arrest if she continued meeting with them. Another public defender, Thomas Frampton, also said Napoli threatened him with charges in the middle of a plea deal negotiation.

Because of these encounters, OPD has instituted measures to protect themselves from allegations of misconduct. Investigators must always conduct field work in pairs so they have a witness who can testify if some action is later contested by the DA. Witnesses must sign statements affirming they understand they are talking to a public defender.

Meanwhile, the DA’s office has its own share of far more serious ethical complaints. A sprawling civil rights lawsuit filed Tuesday accuses Cannizzaro and several other ADAs — including Petrovich, who raised the medical records issue in the Boys case — of using fake subpoenas, forging documents and for routinely jailing victims and witnesses whom the DA’s office deemed uncooperative.

Prosecutors: What Makes a Reformer?

Beth McCann, Denver DA
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Prosecutors: What Makes a Reformer?


Note: This first appeared in our daily In Justice Today newsletter. To get stories like these in your inbox every day, you can sign up here.

Josie Duffy Rice’s new editorial in the New York Times, “Cy Vance and the Myth of the Progressive Prosecutor,” explains the need to measure elected officials by what they actually do — and not just what they say — to promote justice reform. Here is a summary of that piece, as well as three examples of forward-thinking elected prosecutors taking steps toward reform.

  • Cy Vance and the Myth of the Progressive Prosecutor. Manhattan District Attorney Cy Vance opted not to charge Ivanka Trump and Donald Trump, Jr. for fraud. He also opted not to prosecute Harvey Weinstein for sexual abuse. But his bigger faults revolve around those people, mostly poor and mostly Black and Latinx, that his office did prosecute. As Duffy Rice points out, Vance touts himself as a criminal justice reformer, and he is widely considered to be one of the most progressive prosecutors in America. Yet, his actions often do not match his words: “As of 2015, Mr. Vance was more likely to prosecute a misdemeanor charge than any other district attorney in New York City,” Duffy Rice explains, and “last year, 51 percent of marijuana cases involving black defendants in Manhattan ended in conviction, while only 23 percent involving whites did.” She also links this dichotomy between word and deed to other well-known head prosecutors, like Leon Cannizzaro in New Orleans, Louisiana and Jackie Lacey in Los Angeles, California. [Josie Duffy Rice / New York Times]
  • After Freddie Gray, Marilyn Mosby Intends to Keep on Fighting the Good Fight. Most people know Baltimore City State’s Attorney Marilyn Mosby as the young, Black woman prosecutor who tried and failed to prosecute several police officers for Freddie Gray’s death. However, the full picture is much more complex. As head prosecutor, Mosby has presided over the exoneration of two wrongfully convicted men in the past three years. She also recently dismissed “more than 30 cases [] because officers were caught on body cameras appearing to plant evidence or to be ‘re-creating’ crime scenes, and now hundreds of other cases involving these officers are under review.” [Ericka Blount Danois / The Root] On her watch, the felony conviction rate decreased, which the Wall Street Journal used to criticize her. Yet, discussing the drop, Mosby said: “It’s shameful to take pride in overwhelming conviction rates. We are here to do justice and make Baltimore safer, not gloat.”
  • Elections Matter: Lamonte McIntyre, wrongly imprisoned for 23 years for double murder, finally set free in Kansas City, Kansas. This year, Mark Dupree became the Wyandotte County District Attorney, a job that makes him the head prosecutor in Kansas City. As a 34 year-old who spent eight years as a criminal defense lawyer, Dupree unseated the incumbent by 20 points. One of Dupree’s first big challenges this year, has been how to handle the case of Lamont McIntyre, who was arrested at 17 for murder and has spent 23 year incarcerated. Very little evidence tied McIntyre to the crime, and over the years a variety of improper conduct — including by former prosecutors from Wyandotte County — undermined faith in the verdict. These facts led Dupree not to challenge the defense’s post-conviction motion to vacate the sentence. The founder of Centurion Missions, a group that has worked on 58 cases that resulted in exoneration, said that he had never seen such swift and full cooperation before: “When District Attorney Mark Dupree not only recommended to the judge he (McIntyre) get a new trial, but then dismissed all the charges, that’s never happened in a full swoop in any one of our cases.” [Eric Adler, Glenn Rice, and Max Londberg / Kansas City Star]
  • Denver District Attorney opts to not charge former cheerleading coach in painful splits investigation. Footage of a former East High School cheerleading coach, Ozell Williams, pushing girls on his team to do painful splits became a national viral video. While uncomfortable and disturbing, Denver District Attorney Beth McCann decided that Williams’ conduct was not criminal in nature. The school fired him, and residents interviewed by a local media station opined that this was the appropriate sanction. McCann, who started her tenure by stating she would never seek the death penalty, said that “[s]imply by not filing criminal charges, is in no way saying that I didn’t believe them or that what happened to them wasn’t horrible.” [WALB]

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Chicago Activists Say #NoCopAcademy; Hospital Says No Kidney For Son of Justice-Involved Dad … and more

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Debbie Southorn

Chicago Activists Say #NoCopAcademy; Hospital Says No Kidney For Son of Justice-Involved Dad … and more


Note: This first appeared in our daily In Justice Today newsletter. To get stories like these in your inbox every day, you can sign up here.

In today’s news roundup, we bring you stories about Chicago activists protesting a new police training academy, the St. Petersburg Police Department trying out gun cameras, Pensacola’s State Attorney directly filing kids into adult court at a higher rate than other Florida head prosecutors, shifts in marijuana policy in Houston, Dallas, and San Antonio, the failure-to-launch of a King County (Seattle) ballot initiative against safe injection sites, Orange County, California prosecutors losing a fight over the definition of “gang member,” a father’s collateral consequences putting his young son’s life at risk, and then-DHS Secretary John Kelly advancing a directive to paint immigrants as criminals.

Policing

  • Chicago Activists Fight Against a $95 Million Police Training Academy.Using the hashtag #NoCopAcademy, more than two dozen community and national groups have banded together to demand that Chicago Mayor Rahm Emanuel abandon a $95 million plan for a new police training academy. Instead, these groups want to see that money invested in schools, health clinics, and housing. In 2013, Mayor Emanuel shuttered six schools in the same neighborhood where the police training academy would be built. [Nation Action / The Nation]
  • Body cameras, now gun cameras? Some police trying them out. The St. Petersburg, Florida, Police Department has tested out gun-mounted cameras as a possible alternative to body cameras. Now police departments in the Minneapolis, Minnesota and Flagstaff, Arizona metro areas plan to follow suit. The NYPD Deputy Chief Timothy Trainor notes that a gun camera only activates when a gun is drawn, and that his department is “more concerned about capturing (all) interactions between the community that we are tasked to serve and the officers.” Ngozi Ndulue, the senior director of the NAACP’s criminal justice program, said “we need to focus more on the policies for implementing body cameras and making sure officers are turning on their body cameras.” [Dave Collins / AP]

Juvenile Justice

  • “Pipeline To Prison” Series Spotlights Prevalence Of Juveniles Sent To Florida’s Adult Courts. With sponsorship from groups including the ACLU, the Southern Poverty Law Center, and Campaign for Youth Justice, the Pensacola Bay Area League of Women Voters chapter presented on how Florida State Attorneys using “direct file” to prosecute kids as adults contributes to a “pipeline to prison.” Of particular concern to the chapter is the outsized role that Florida’s First Judicial Circuit plays in the process. Paula Montgomery of the LWV branch’s juvenile justice committee explained to the audience that, “Direct File is a process by which the state’s attorney has sole discretion of whether the child is tried as a juvenile or as an adult,” and that “There’s no judicial oversight; there’s no defense [input]. It’s just all in the hands of the state’s attorney. This process results in a great many children, actually, being tried as adults, particularly in the First Judicial Circuit,” which includes Pensacola. The only other judicial circuit in the 2015–16 fiscal year with a higher number of kids transferred directly to adult court is the the Thirteenth Judicial Circuit, which includes Tampa. However, Andrew Warren defeated former State Attorney Mark Ober in his reelection bid to become the new State Attorney starting in Jan. 2017, and has reduced the number of kids direct-filed. First Judicial Circuit State Attorney Bill Eddins has been the circuit’s head prosecutor since Jan. 2005. [Sandra Averhart / WUWF]

Drugs

  • Dallas Doobies in Doubt. Texas law handles marijuana possession with a hammer’s subtlety: two ounces and a first offense can render a sentence of up to six months. Some Texas District Attorneys, like Harris County District Attorney Kim Ogg in Houston and Nueces County District Attorney Mark Gonzalez, have recently opted to substitute jail time with a 4-hour class and a fine, respectively. Without the help of Dallas County District Attorney Faith Johnson, the city of Dallas seemed prepared to head in the same direction. However, the plan hit a snag in the Dallas County Commissioners court over the prospective cite-and-release program’s funding. Johnson has said that it is not her role to “legislate,” yet as the county’s head prosecutor, she has a wide swath of discretion on how to discharge its duties. For example, she could create a robust diversion program to ensure that low-level marijuana possession does not generate needless incarceration. Instead, Johnson continues to abdicate responsibility by stating that any marijuana policy is entirely up to individual cities and police departments. [Jessica Pishko / In Justice TodaySee Also Savannah, Georgia Alderman Van Johnson has announced a plan to introduce an ordinance to eliminate jail time and lessen fines for possession of less than an ounce of marijuana. [Eric Curl / Savannah Morning News]
  • New policy in San Antonio could lead to fewer arrests for marijuana possession. While Bexar County District Attorney Nico LaHood’s tenure continues to be burdened with the specter of allegations of his personal prosecutorial misconduct, he could be doing his part to reduce low-level arrests and prosecutions in San Antonio. District Attorney LaHood’s pilot program of cite-and-release for under four ounces of marijuana would extend to property damage under $500, theft of hotel or restaurant services under $750, and driving with an invalid license. However, policing discretion places limits on what such a program can do, and LaHood himself reiterated that he would alter or scrap the program if he is not satisfied with the results. [Larry Hannan / In Justice Today]
  • Seattle-area judge rules initiative to ban safe injection sites is invalid.An attempt to preemptively block safe injection sites by ballot initiative was struck down by King County, Washington, Superior Court Judge Veronica Alicea Galvan. Judge Galvan held that the proposed initiative would illegally “impinge” on the county’s legislative authority and the health board. King County Prosecutor Dan Satterberg has “consistently” backed safe injection sites. [Allison Sundell / KING-TV]

Gang Injunctions

  • Prosecutors Forced to Redefine ‘Gang Member’. Two Orange County, California gang injunctions have stalled in court since 2015. Generally, these gang suppression orders are swiftly implemented and rarely contested. But in these cases, lawyers have been representing the alleged members from the start. Using a 2013 Ninth Circuit ruling that said there should be a “meaningful” process to determine gang membership, lawyers from the Urban Peace Institute convinced a judge to lay out specific criteria to prove that an alleged member is an active threat to the community. Thus far, O.C. District Attorney Tony Rackauckas’ office has failed to bring forward a single eligible defendant. [Maura Ewing / In Justice Today]

Collateral Consequences

  • A criminal record is preventing this father from donating a kidney to dying son. A 2-year-old child is in danger of dying because his father is not being allowed to donate a kidney to his son because of the dad’s criminal history. A.J. Dickerson was born without kidneys and his father, Anthony Dickerson, is a perfect match. But Emory Hospital in Atlanta delayed the transplant after Anthony Dickerson was thrown in jail for violating his probation. The case is a chilling example of the stigmatization people with a criminal record face. While it’s usually a struggle just to find a job or a place to live, society’s desire to keep punishing people who’ve been incarcerated could in this instance kill a child who doesn’t have to die. [Larry Hannan / In Justice Today]

Crimmigration

  • Top Trump Official John Kelly Ordered ICE to Portray Immigrants as Criminals to Justify Raids. Further reinforcing the idea that mass ICE raids are more about ideology than public safety, Vanderbilt University Law School students filed public records request and unveiled a DHS plan to portray immigrants as criminals. For example, an ICE executive sent an email to several agency chiefs of staff on February 10 that read in part, “Please put together a white paper covering the three most egregious cases.” In Texas, an agent from ICE’s San Antonio office wrote an internal email that read: “I have been pinged by HQ this morning indicating that we failed at this tasking.” [Alice Speri / The Intercept]

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