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When “Ambiguity” Can Mean Life in Prison

A Louisiana man’s request for a “lawyer dog” was deemed unclear by the state’s Supreme Court.

When “Ambiguity” Can Mean Life in Prison

A Louisiana man’s request for a “lawyer dog” was deemed unclear by the state’s Supreme Court.

Leaf through the pages of any lawsuit and you’ll likely find an argument of ambiguity. Vagueness and overbreadth are so often at the core of contentious legal disputes, it’s easy to forget that these concepts aren’t just a highfalutin thought experiment for lawyers — claims of ambiguity can and do cost defendants their shot at freedom and constitutional guarantee of fairness.

Such was the case for 24-year-old Warren Demesme of New Orleans, who has been held in pretrial detention since his arrest two years ago. Demesme’s lawyers argue that his constitutional rights were violated when, after his arrest, police ignored his request for a lawyer:

“If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog, cause this is not what’s up,” Demesme told the police during his interrogation.

On Friday, the Louisiana Supreme Court denied Demesme’s request that the court review a lower court’s finding that this phrase is only an “ambiguous” reference to asking for counsel, and that his rights were not violated. Concurring in the denial of review, Justice Scott Crichton writes that “the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”

Demesme is facing charges of first-degree rape and indecent behavior with a juvenile under 13; if convicted at trial of the rape charge, he faces a mandatory life sentence.

Along with a brief flurry of dogs-in-suits memes, the court’s decision unsurprisingly attracted derision from the legal community. David Carroll at the Sixth Amendment Center tells In Justice Today that the decision “shocked” him. Even though Louisiana has a well-documented history of trampling the rights of defendants, particularly poor, black defendants, the court’s claim of alleged ambiguity in the face of a well-known vernacular word — dog — comes across as far-fetched and baldly discriminatory.

As Elie Mystal at Above the Law points out, courts, “even in Louisiana,” are rarely “so obvious about their racial animus.” And any shred of ambiguity in the phrase “just give me a lawyer dog” was introduced by the court’s own dubious omission of a comma between “lawyer” and “dog” in the transcript, Reason’s Ed Krayewski reminds readers.

In spite of the shock, Demesme’s case is a potent reminder that many lower courts tend to err on the side of law enforcement when it comes to claims of ambiguity. In a 2010 dissent in a case examining what constitutes a criminal suspect’s ceding of the Fifth Amendment Miranda right to have counsel present during an interrogation, U.S. Supreme Court Justice Sonia Sotomayor points out this phenomenon.

Numerous lower courts have “erroneously … rejected as ambiguous an array of statements whose meaning might otherwise be thought plain,” writes Sotomayor. In a footnote, she chronicles an array of phrases that lower courts have classified as “ambiguous” when it comes to a suspect invoking the right to have counsel present during an interrogation, ranging from “I don’t even want to, you know what I’m saying, discuss no more about it, man,” to “… if you’re implying that I’ve done it, I wish to not say any more.”

This gray area of legal ambiguity when it comes to arrests and interrogations should come as no surprise. There are many examples of how this process bewilders and criminal suspects; consider the many instances in which defendants have falsely confessed to a crime after hours of interrogation. The vast majority of Americans don’t possess the legal prowess to deftly navigate their arrest and interrogation in a way that protects their rights.

In their attempt to protect themselves while undergoing the stress of being detained by the police, it makes sense that equivocal phrases such as, “I think I need a lawyer,” or “Maybe I should talk to a lawyer,” arise so often. If the Louisiana Supreme Court’s decision is any indication, the courts aren’t eager to make room for defendants when it comes to their confusion — even when as in Demesme’s case, the request for counsel was crystal clear.

Thanks to Josie Duffy Rice.

The “Humble Beginnings” of the Sweeping Bail Reforms Enacted by New Jersey

Daniel Schwen CC BY-SA 4.0, via Wikimedia Commons

The “Humble Beginnings” of the Sweeping Bail Reforms Enacted by New Jersey

New Jersey has become a national leader in criminal justice reform, particularly around the hot button issue of requiring cash bail. When it passed the Bail Reform and Speedy Trial Act last year, it became one of only three locations in the United States that have virtually eliminated bail as a condition for release when someone is charged with a crime. Yet the state literally stumbled into these efforts, almost by accident, in 2012.

That was the year the Drug Policy Alliance obtained data from the state’s court system as part of its study on drug sentences. As they analyzed the data, the researchers were astonished to find that almost ¾ of individuals incarcerated in state jails hadn’t been sentenced. Of those, nearly 40 percent were in jail solely because they could not afford the bail that had been set. About 800 were being held on bail of $500 or less. The majority had been charged with a nonviolent crime such as drug possession or traffic violations. Yet they were incarcerated, on average, for about three months. 71 percent of the jail population was black or Hispanic.

Drug Policy Alliance staff quickly realized that the state’s cash bail system was the cause not only of New Jersey’s extreme prison overcrowding, but of gross injustice. Whether one had to sit in jail for months, or could return home and resume a relatively normal life until appearing in court, was determined solely by one’s ability to afford bail. Bail reform had not yet become a rallying cry. “It was really an emerging issue,” noted Roseanne Scotti, New Jersey director for the Drug Policy Alliance.

The organization published a report in March 2013, concluding that “the greatest opportunities to responsibly reduce New Jersey’s jail population are related to more efficiently and effectively managing the pretrial population.” These findings were hardly surprising to many who are engaged on a regular basis with the state’s criminal justice system, such as prosecutors, public defenders, and judges. Those people had become familiar with, and perhaps even inoculated against, the idea that money was the difference between going free or sitting behind bars. For those who weren’t deeply involved in how bail operated, however, the findings came as a shock. “It was very public and very powerful,” stated Alexander Shalom, senior staff attorney at the ACLU-NJ.

The report lit a fuse and hastened a public outcry. “It’s literally the most unsexy reading material ever,” noted Insha Rahman, project director at the Vera Institute. But it “galvanized [the organization’s] advocacy and lobbying efforts.” After its release, the Drug Policy Alliance quickly built a coalition of civil rights, community groups and faith leaders to push for reform.

The report also attracted the attention of the Chief Justice of New Jersey’s Supreme Court, Stuart Rabner. Judge Rabner gave a speech calling for widespread reform of the system, citing the Drug Policy Alliance’s finding that more than 1,500 people were sitting in jail just because they couldn’t afford bail of $2,500 or less. “That’s not a healthy practice for a system of justice,” he said.

“There was no way to read that report and not see it as a stain on the justice system at which he was at the helm,” Shalom explained. Rabner created the Joint Committee on Criminal Justice, consisting of a “who’s who of power players” from across the system, in Shalom’s words, including representatives from all three branches of the state government, prosecutors, public defenders, the attorney general, Shalom, and the chief justice.

“They’re the kind of folks who couldn’t agree about what to order for lunch together,” Scotti observed. Yet on the first day, the group voted unanimously to fundamentally transform the system, rather than attack the issues piecemeal.

“It was no longer a debate over is there a problem,” Shalom said. “The only reasonable thing that people of good faith could debate was how to fix it.”

Over the next several months, the group reached consensus on enough proposed reforms to release a report. The recommendations contained in the report formed the basis for the legislation that eventually became the Bail Reform and Speedy Trial Act. The Drug Policy Alliance quickly put its coalition to work to convince a majority of legislators to vote for the bill. “You just go out there and do the really hard, on-the-ground work of scheduling meetings, pitching ed[itorial] boards, talking to reporters, trying to get hearings,” Scotti said.

The support of the Republican governor, Chris Christie, turned out to be pivotal. Christie, a former federal prosecutor, was familiar with the federal system, which doesn’t typically rely on cash bail. “It was helpful that Christie understood the system,” Scotti said. Christie was most interested in the preventative detention piece — giving judges the power to jail people for public safety reasons instead of relying solely on bail amounts. Still, in the end, he became a leading proponent of the entire package of reforms.

Christie’s endorsement helped accelerate the momentum for the bill’s passage. “Because the governor was supportive, we had a lot of Republicans willing to look at this,” Scotti said. “All in all it took two years, which sounds like a lot of time, but as legislation goes it was actually one of the quicker pieces of legislation we had.”

The most vigorous opposition came from the powerful for-profit bail industry. Representatives argued that bail bondsmen are small business people who would be badly hurt by the legislation, and that implementing a new system would be costly. Yet most bond companies are owned by a handful of prosperous insurance companies, and their cost estimates were always highly inflated. “The bail industry, whose mendacity is truly spectacular, made up numbers…based on nothing,” Scotti said. “For the bail industry, it’s data be damned.”

Scotti described one informational hearing featuring an expert from Kentucky who discussed the state’s experience banning commercial bondsmen and implementing risk assessments. The expert said that the cost of setting up its pretrial services program had been in the tens of millions of dollars. Later in the day, a representative from the bail industry “started talking about how Kentucky was a disaster, cost hundreds of millions of dollars,” Scotti recalled. The woman from Kentucky was aghast. “She turned to me and she said, ‘I’m in the room, but it doesn’t matter.’”

Despite hiring three lobbying firms, the bond industry was ultimately unable to derail the reform movement. The combined impact of the Drug Policy Alliance report, the Joint Committee’s report, and the efforts of a large, diverse and bi-partisan coalition of stakeholders pushing for reform proved to be more powerful.

“The legislature wasn’t taking [the bail industry] seriously when they said things like everything is fine,” Shalom added. “The onus was in many ways on them to propose a better solution… And they didn’t have one.”

The legislation that eventually passed made sweeping changes. It requires that anyone who is issued a complaint warrant and arrested must receive a risk assessment within 48 hours, followed by “mini trial,” in Scotti’s words, with a defense attorney present. At that time, a judge either releases that person or holds him or her, based on risk. The legislation also increases the number and types of offenses for which summonses are to be used instead of arrests. This keeps more people out of the system altogether. For certain offenses, police must now seek permission before making an arrest.

“One of the things that really makes New Jersey unique is we did such a complete system overhaul,” Scotti said. “We deprioritized money bail, did a risk assessment, did pretrial services, and increased the use of summonses all at once.”

The impact of this legislation has already been significant. Data released this summer showed that the number of people in state jails who hadn’t yet been sentenced fell 26 percent between July 2016 and July 2017. The numbers have fallen even more precipitously — 34 percent — since 2015.

“We’ve spoken to people whose lives have been demonstrably changed by the fact that though they were arrested…they were able to get out and lead productive lives while their case was pending,” Shalom said. “They were allowed to stay employed, keep their home and housing situation, family situation.”

The reforms are attracting attention from other states. “We field calls all the time,” Scotti said. She has spoken to individuals from California, Connecticut, Florida, and Texas, among others.

“It seems unquestioned that New Jersey has started a conversation,” Shalom said. “Other states are looking to experiment and try things New Jersey has tried, and hopefully they try things that are bolder or different.”

The scope of New Jersey’s reforms should not be underestimated. It was “the biggest change in the criminal justice system in New Jersey in many decades,” Shalom said. “I wonder if the Drug Policy Alliance could have predicted the power of that report,” Rahman mused. “But it is really things like that that galvanize change.”

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Injustice Roundup: My Weekly Roundup of Stories on Abusive Police Officers, Prison Guards, and Prosecutors

Injustice Roundup: My Weekly Roundup of Stories on Abusive Police Officers, Prison Guards, and Prosecutors

Police brutality is roaring ahead

I use this database to track police brutality in the United States. Many other databases exist, but this simple one is the most up to date and links to local news stories covering each case. Take those news stories with a grain of salt, though, because they tend to only cover the law enforcement narrative early on.

In a few days we will cross over 1,000 people killed by American police this year — keeping 2017 to be one of the deadliest years for police brutality ever measured.

NFL team owner compares players to prison inmates he needs to put in check

As the National Football League continues to bungle its response to players protesting police brutality and injustice in America, team owners are scrambling to meet about how they can somehow stop the protests. In a brilliant new piece for ESPN Magazine revealing the behind the scenes talks, something very disturbing came out.

Bob McNair, the largest single donor to Donald Trump in the NFL, compared the protesting players to prisoners. Here’s the full context…

The three most conservative owners, each Trump donors, are speaking — Jerry Jones of the Dallas Cowboys, Daniel Snyder, of the Washington Redskins (I hate even typing that name), and Bob McNair of the Houston Texans. And the conversation goes like this:

As Jones spoke, Snyder mumbled out loud, “See, Jones gets it — 96 percent of Americans are for guys standing,” a claim some dismissed as a grand overstatement. McNair, a multimillion-dollar Trump campaign contributor, spoke next, echoing many of the same business concerns. “We can’t have the inmates running the prison,” McNair said.

Some may say, “that’s just a figure of speech,” but aren’t all words figures of speech? That Bob McNair, of all metaphors, chose to compare protesting players to inmates running the prison, is disturbing. I’ll leave it at that.

Please take some time out to watch this video

I love social media, but it often reduces very complex conversations about the criminal justice system to points that simply don’t translate well on such mediums. The teams from Participant MediaThe New Yorker, and The Marshall Project came together to produce a project they are calling “We Are Witnesses.” It’s one of the best things out today and I really do hope you will take time out today (or soon) to watch it.

It has powerful, personal, up-close interviews with people from every aspect of the criminal justice system giving you a searing and transparent look into it better than almost anything out there right now.

These two NYPD officers should be in jail for rape right now

My colleague Natasha Lennard of The Intercept wrote a very important pieceabout two NYPD officers who should absolutely be in jail for rape right now. I’ve mentioned this case before, but this is the best piece out on it. The officers, Richard Hall and Edward Martins, claimed they each had consensual sex with a teenager they had in custody. Lennard, rightly so, blows this foolish alibi wide open. Sex can never be truly consensual when someone is in police custody — PERIOD. The teenager reported that she was raped. The rape kit came back positive. The DNA of each officer was found.

This case is open and shut. It’s a disgrace that they still have jobs and it’s a failure of the system that charges have not yet been filed.

In a separate case, a 15 year old cadet in an LAPD training program has filed a claim against the city in a sexual abuse scandal rocking the department.

UPDATE: These officers have now been indicted.

Private prisons companies now holding their meetings on Trump properties

The GEO Group is the largest private prison company in the country. Their stock has been soaring since Trump took office. Now, they’ve moved literally their annual meeting to Trump’s Florida golf resort — which brings in the largest stream of revenue in the Trump organization.

We live in a time where people, politicians, and corporations clearly no longer feel like they have to disguise their motives or feelings anymore. The GEO Group has multiple very lucrative federal contracts and it is a disgrace that they now just openly hosting their meetings on a Trump property — which many legal experts continue to express is a clear conflict of interest.

Three California officers arrested for a beating of an unarmed teenager that they lied to cover up

Three officers participated in a brutal assault of an unarmed, non-violent, compliant teenager in 2015 before wrongly arresting him. He did nothing wrong. Thankfully it was filmed. Here’s some of the account from the LA Times,

Jensen, 50, and Hutchinson, 31, knowingly lied in the reports they wrote about the incident and later when they testified at the boy’s trial, prosecutors allege. Jensen also faces a charge of violating Aguilar’s civil rights by using excessive force.

In his report of the incident, Jensen falsely claimed he struck Aguilar after the teen attempted to punch him in the face, according to the charges against the men. And he wrote that Aguilar had come within an “arms length” of the officers who were escorting his father.

Hutchinson gave a similar account in his own report, falsely saying the boy had run to within a few feet of the other officers and then yelled at onlookers in an attempt to “incite unrest” as he was being led away, federal authorities said.

$44.7 million verdict reached in Chicago police misconduct case

While cities like Chicago continue to claim they don’t have the funds to properly support public education and recreation, they continue to pay hundreds of millions of dollars out in police misconduct settlements/verdicts. Chicago Police Officer Patrick Kelly shot Michael LaPorta, an unarmed non-violent man, rendering him paralyzed for life. Kelly, who has a disturbing history, has long claimed he didn’t shoot LaPorta, but that he shot himself. The civil jury wasn’t buying it. It’s outrageous. And now they’ve awarded LaPorta the largest police misconduct verdict in a city that has had thousands of them.

It’s a type of victory for LaPorta, but he’s paralyzed and Patrick Kelly is still free. That’s not fair punishment.

Shaun King is a writer in residence with the Fair Punishment ProjectHe is a father, writer, humanitarian, political commentator and activist who lives in Brooklyn. He was previously Senior Justice Writer for the New York Daily News.The views and opinions expressed in this article are Shaun’s and do not necessarily reflect the views of the Fair Punishment Project.

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