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Rhode Island Civil Asset Forfeiture Reform Faces an Unusual Foe: A Democratic Attorney General

Rhode Island Attorney General Peter F. Kilmartin
@AGKilmartin / Twitter

Rhode Island Civil Asset Forfeiture Reform Faces an Unusual Foe: A Democratic Attorney General

Law enforcement’s power to seize property suspected of being used in criminal activity regardless of whether the owner has been convicted of a crime has generated mounting public scrutiny of the practice, known as civil asset forfeiture. Both Nebraska and New Mexico have abolished civil asset forfeiture in recent years, and the Department of Justice under the Obama administration imposed limits on a federal program that facilitated local seizures, which have since been rolled back by Attorney General Jeff Sessions.

In Rhode Island, two pieces of legislation introduced earlier this year, Senate Bill 2681 and House Bill 7640, would sharply restrict prosecutors’ ability to seize assets, the majority of the proceeds of which are awarded to local police departments. Nearly $15.7 million in property in the state was seized by law enforcement between 2003 and 2013, according to public records obtained by local news station WPRI. In 2013, according to WPRI, 38 percent of seizures in Rhode Island were for $1,000 or less — critically, more than it might cost to hire an attorney to fight to keep the property or cash.

Supporters of the legislation say that civil asset forfeiture violates due process rights — prosecutors can seize property that they claim is related to a crime even, again, if that person is never convicted. The new legislation would limit prosecutors to seizing assets connected to an actual criminal conviction, and also protect people’s homes, vehicles worth less than $10,000 and small amounts of cash. Critically, it would ensure that the state provide a person contesting forfeiture of their property with an attorney if they cannot pay for one themselves. The legislation would also limit participation in the Department of Justice’s Equitable Sharing program, through which the federal government transferred back $23,493,801 in seized asset funds to Rhode Island law enforcement in fiscal year 2017.

Like other criminal justice reform legislation, civil asset forfeiture reform often generates unusual political alliances: The legislation is backed by the Rhode Island ACLU and spearheaded by the Rhode Island Center for Freedom and Prosperity, a conservative organization with a strong libertarian bent that argues that reform would be good for both civil rights and the state’s business climate.

Justin Katz, the center’s research director, points out that the state’s political climate has made enacting such legislation impossible in the past. “Rhode Island has a highly transactional General Assembly,” Katz told The Appeal.“Even fantastic, no-brainer ideas can be tangled up in complications about who is allowed to have a win during the course of a session. In this case, asset forfeiture reform is complicated by the obvious self interest of law enforcement agents to maintain the status quo.”

But the legislation is opposed by law enforcement and by Rhode Island Attorney General Peter F. Kilmartin, who, though a Democrat, has aggressively campaigned against legislation to legalize recreational marijuana. He has also supported a bill to make it easier to charge drug dealers with homicide when drug sales result in a fatal overdose. In an April 26 letter to the chairperson of the state Senate Judiciary Committee, Kilmartin wrote that the proposed civil asset forfeiture legislation “would enable criminal activity and create a sanctuary for criminal behavior.” Furthermore, Kilmartin warned that barring the seizure of residential properties “invites criminal activity, including narcotics activity, into our residential neighborhoods.”

Even though Rhode Island is among the nation’s smallest states, Kilmartin is in effect one of the nation’s most powerful district attorneys because his office prosecutes felonies across a state of one million people.

“Overall, I think eliminating civil asset forfeiture is a huge step forward,” said James Vita, of the National Lawyers Guild of Rhode Island. “The Attorney General’s office should be ashamed that they opposed this bill.”

Kilmartin’s office declined to provide additional comment beyond providing The Appeal with a copy of their letter of opposition.

Yet Vita also argued that legislation is flawed because it would restrict but not bar law enforcement from profiting from seized assets. It would also require the state to “prove by clear and convincing evidence that the petitioner had actual knowledge of the underlying crime giving rise to the forfeiture” — meaning that it is substantially more likely to be true than not, a lower burden of proof than what prosecutors must meet in criminal cases, guilt beyond a reasonable doubt. What’s more, property owners who even had knowledge of a crime but were not involved in it could still have their property seized.

For the strange-bedfellows alliance committed to criminal justice reform, however, the bill is still a sensible and easy step toward a better system. But the Democratic attorney general in a reliably blue state is actively fighting alongside police to sink it. The Senate and House bills are currently before their respective judiciary committees, and getting the legislation signed into law will be an uphill fight. The movement to reform civil asset forfeiture still lacks the power, for now, to ensure that this is an issue that Democratic politicians are wary to cross the cops on.

Clarification: Kilmartin’s office declined to provide additional comment beyond providing The Appeal with a copy of their letter of opposition.

Elections matter: Florida’s 13th Judicial Circuit

AndrewWarrenFL on Facebook

Elections matter: Florida’s 13th Judicial Circuit

State Attorney Andrew Warren of the 13th Judicial Circuit, which is comprised of Hillsborough County, surprised many last year when he narrowly defeated incumbent State Attorney Mark Ober, who had been the chief elected prosecutor in Florida’s fourth largest county for 16 years. A former federal prosecutor, Warren ran as a supporter of criminal justice reform, vowing to lock fewer people up and send more addicts to rehabilitation instead of jail. During his campaign, Warren had also been critical of Ober for the manner in which his office sought the death penalty, remarking that Ober had received a “failing grade in a critical area of criminal justice.”

Nine months into his first year, Warren is choosing to seek the death penalty less frequently than his predecessor, and also choosing to drop the death penalty in some cases where Ober initially sought it.

Warren’s views on the death penalty were explored in a recent Tampa Bay Times article.

According to the profile, Warren has chosen to drop the death penalty in five cases where Ober originally chose to seek it. A sixth person facing capital charges cut a plea deal that allowed him to avoid the death penalty.

There are still 17 cases where Ober initially elected to seek death, and Warren hasn’t yet announced whether he will follow the same path.

“These decisions are the most serious and sobering decisions you make as state attorney,” Warren said. “And it’s different academically than it is when you’re sitting in a chair as the one to make the decision.”

Warren has said the death penalty should be applied “fairly and consistently and rarely.” He has also said he will not use the threat of seeking death as leverage to get someone to plead guilty.

Warren has chosen to seek death in one criminal case that occurred after he took office.

Warren previously pledged to reduce the number of juveniles charged as adults and increase the number of juveniles who receive civil citations, which keeps juveniles out of the criminal justice system.

“We need to do a better job steering juvenile, non-violent offenders away from the downward spiral of the criminal justice system,” Warren said while he was running against Ober. “We should be tough on serious juvenile offenders and always hold people accountable for their actions. But treating kids who commit minor offenses like adult criminals only furthers the revolving door criminal justice system. And it makes our neighborhoods less safe.”

He announced an expansion of the county’s juvenile civil citation program in July.

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Law Enforcement Takes Unearned Victory Lap for Capture of One of Their Own — The Golden State Killer

Sacramento DA Anne Marie Schubert announces the arrest of Joseph James DeAngelo.
Justin Sullivan / Getty

Law Enforcement Takes Unearned Victory Lap for Capture of One of Their Own — The Golden State Killer

It has been over a week since California law enforcement announced what many have waited to hear for more than 40 years — that they identified and captured the man they believe to be the Golden State Killer, thought to be responsible for at least 12 murders and nearly 50 rapes between northern and southern California from the mid-1970s to 1986.

On April 24, Joseph James DeAngelo, 72, was arrested at his home in the Sacramento suburb of Citrus Heights, where six of the crimes occurred. He was formally charged with eight counts of first-degree murder in three counties.

“The answer was always in Sacramento,” Sacramento District Attorney Anne Marie Schubert said at a press conference the day after DeAngelo’s capture. But Schubert and her colleagues, including Sacramento Sheriff Scott Jones and Orange County District Attorney Tony Rackauckas offered few answers about the DNA testing methods used to identify DeAngelo. Instead, they used much of their time at the podium to repeatedly praise the “dedication,” “persistence,” “dogged determination,” “visionary and innovative leadership,” and “unrelenting efforts” of police and prosecutors — the very same people who have been stumped by the case for decades.

“At a time when law enforcement is unfortunately under so much criticism, I want the public to know that the work on this case reflects the very best, the very highest standards in the noble and dedicated and courageous police profession,” said Ventura County District Attorney Greg Totten.

It wasn’t until the end of the nearly hour-long press conference, when reporters were permitted to ask questions, that officials acknowledged what many already knew, thanks to social media — that DeAngelo himself was once a law enforcement officer. Employed by the Auburn Police Department from 1976 to 1979, DeAngelo was employed as a police officer during the same time frame when the Golden State Killer, then known as the East Area Rapist, attacked women and couples in their Northern California homes. DeAngelo was fired from the Auburn Police Department in 1979 after he was caught shoplifting dog repellent and a hammer from a drugstore in Citrus Heights.

A few months later, on December 30, DeAngelo allegedly shot to death Robert Offerman, a doctor, and Alexandra Manning, a clinical psychologist, in their home of Goleta, a suburb of Santa Barbara. Offerman and Manning were allegedly the Golden State Killer’s first victims in Southern California.

“Very possibly he was committing the crimes during the time he was employed as a peace officer,” said Sacramento Sheriff Scott Jones, “and obviously we’ll be looking into whether it was actually on the job.” He also noted that from 1973 to 1976, DeAngelo was employed by the Exeter Police Department, just 30 minutes from where a series of break-ins were committed—crimes also believed to be the Golden State Killer’s work. And yet, investigators said, DeAngelo was never on their radar, despite years of speculation that the offender had a police or military background.

But a failure to bring justice in the long unsolved serial murder case did not stop District Attorney Schubert from using DeAngelo’s arrest to promote her re-election campaign. On May 1, Schubert’s campaign debuted a new 30-second spot hailing her as a “groundbreaking DNA expert who led the investigation that solved the Golden State Killer/East Area Rapist case.” The tagline? “She protects us.”

Tell that to the family of Stephon Clark, the unarmed Black man who was shot to death by Sacramento police officers while he was standing in his grandparents’ backyard in March. Clark’s family and activists from around the country have urged Schubert to file charges against the officers, or issue a statement about it, but she has declined to take action. On April 20, Schubert responded to four weeks of protests outside her office by erecting a 10-foot cyclone fence in front of her office and around the employee parking lot.

Schubert had already been criticized for her refusal to pursue criminal charges against the police — since taking office in 2015, according to theSacramento News & Review, she “has declined to file charges in 21 shootings involving police and also in 13 cases of death of people in police custody.” Late last year, Schubert also refused a state auditor’s request that she charge Sheriff Jones with a misdemeanor for “deliberately releasing information that he was specifically told he could not release, despite multiple verbal and written warnings.” A recent investigation by the Intercept revealed that one-third of the funds Schubert has raised for her two campaigns for DA (in 2015 and now, as she runs for re-election) came from law enforcement sources.

Schubert isn’t the only law enforcement official taking victory laps over the apparent resolution of the Golden State Killer case who is facing accusations of protecting the police. Between 2010 and 2015, Orange County DA Rackauckas accepted $23,500 from individual police officers and police PACs, contributions that came against the backdrop of his office’s history of declining to prosecute police killings, including the 2008 shooting death of a 20-year-old man by the Anaheim Police Department which led to a $1.5 million settlement with his widow. And just weeks before Rackauckas appeared on the HLN network to laud law enforcement’s work in the Golden State Killer case, his office was sued by the ACLU over its network of jailhouse informants which was allegedly used to win “countless convictions based on unreliable information.”

As Schubert and Rackauckas ride the tidal wave of positive publicity from the Golden State Killer’s arrest, there is growing criticism of law enforcement exuberance around the case, as if DeAngelo wasn’t one of their own — especially in Sacramento, where the community is already up in arms over a more recent death at the hands of a police officer.

As Schubert noted, the answer to the Golden State Killer case was likely always in Sacramento. But to find what she called “a needle in a haystack,” investigators turned to advanced DNA testing. In the late April presser, law enforcement officers were vague about the methods used to finally identify DeAngelo, even as they ebulliently praised their own work in the case.

“The fact that they didn’t disclose in that press conference their methods I found really disingenuous,” said Erin Murphy, a professor at the New York University School of Law and the author of Inside the Cell: The Dark Side of Forensic DNA. “There was no investigative reason they couldn’t have told everyone. I mean, the press asked them a million different ways. I knew … something smelly was going on. If it was just a familial search, they would have said. I think it’s really telling that they felt they couldn’t share their methods at that time.”

In the weeks since DeAngelo’s arrest, it has been revealed that investigators used a new form of genetic fingerprinting to search for distant relatives of the then-unknown offender in a variety of state, private and public databases, including the genealogy database GEDMatch.

The revelation has raised privacy concerns among the legal community, privacy advocates, and genealogy website users, many of whom were unaware of the ways their own DNA could expose their entire family tree to law enforcement scrutiny. While the terms and conditions of these public sites all vaguely warn of potential privacy risks, the average user is unlikely to be familiar with specific forensic advancements used by police — especially if, like in California, they don’t publicize them.

GEDMatch, however, is where investigator Paul Holes and his fellow investigators got their hit. Using other public records, they assembled a family tree and narrowed down the list of potential suspects within the genetic line. There was at least one near-miss — in March 2017, Holes successfully persuaded a judge to issue a DNA subpoena for a 73-year-old nursing home resident in declining health. He wasn’t a match.

At some point, “DeAngelo kind of bubbled to the surface,” Holes told the San Jose Mercury News.

timeline of DeAngelo’s known history and whereabouts during those 10-plus years of terror makes clear that he was never far from reach. In just a few short weeks, scientific advancements and a crazy amount of luck accomplished what conventional police work failed to do for the last 40 years. As significant as finally solving this case may be, California law enforcement should quit their showboating and instead reflect on why it took so long to apprehend one of their own.

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