Thursday, January 31, 2013

Overcharging: The Aaron Swartz case

by David Friedman

As many readers of this blog probably know, Aaron Swartz, a young, talented, and prominent figure in the internet world, recently committed suicide after being charged with multiple offenses against the Computer Fraud and Abuse Act and threatened, if he refused a plea deal, with a total penalty of fifty years in prison. I did not know Aaron, although we had a friend in common who has expressed his reaction to the tragedy in strong and moving terms. Further, I have no definite view on exactly what the relevant law, on I.P. and on access to computers, ought to be, although I have discussed both in writing and teaching.

What I would like to comment on is the issue of overcharging. In theory, most crimes have a range of possible penalties—one to five years in prison, a fine of a thousand to two thousand dollars, or something similar. In practice, prosecutors can and do make a single criminal act the basis for multiple charges—Aaron Swartz was charged with 13 felonies—with at least the possibility of consecutive sentences, making possible sentences far outside the specified range. One reason to do so is to persuade the defendant to plead guilty to one or more of the charges in exchange for the implicit promise of a shorter sentence, presumably what was happening in the Swartz case. This does not seem like a desirable practice—even when used against less sympathetic defendants. I do not know whether what Aaron Swartz did ought to have been punished at all, but I think it would be hard to find anyone, including the prosecutor, willing to argue that it ought to have received the punishment that the prosecutor threatened to impose.

How might one prevent it? One possibility would be to try to eliminate the practice of plea bargaining. On its face, it is a pretty ugly procedure—among other things, a way of getting an innocent defendant to confess in court to a crime he did not commit in order to avoid the risk of a much more severe punishment. In other contexts that would be described as suborning perjury, itself a criminal offense—in this case by the prosecutor.

Eliminating plea bargaining raises two problems. The first is that it would greatly increase the number of trials, since most criminal cases currently are settled out of court. That could be dealt with either by greatly reducing the number of things treated as crimes—eliminating the war on drugs would be a good first step in that direction—or by substantially increasing expenditure on courts. Courts at present absorb only a very small fraction of government expenditure, so the increase would cost considerably less than many things the government now does and could save money by not doing—such as enforcing drug prohibition.

The second problem is how to do it. Plea bargaining involves only an implicit agreement between prosecutor and defendant, which makes it hard to enforce a rule against it. And it makes little sense to refuse to accept a guilty plea.

One possibility, suggested by the previous paragraph, would be to treat offering a plea bargain as subornation of perjury by the prosecutor and punish it accordingly. A more plausible alternative might be a rule under which a defendant could not plead guilty until the prosecutor had entered his charges and the only guilty plea that the court would accept would be to the offenses as charged.

Short of abolishing plea bargaining, how could we make overcharging impossible, or at least not in the interest of prosecutors? One possibility would be to limit prosecutors to treating a single act as a single crime, although defining what was or was not a single act might raise problems. Alternatively, one might permit multiple charges, but specify that if the defendant was convicted of more than one only the most serious conviction would count. But that would not solve the problem of overcharging on a single charge, treating the computer equivalent of a panty raid as interstate transportation of stolen property worth more than five thousand dollars (I am thinking of a famous early computer law case; those who have read The Hacker Crackdown may recognize it).

My current research on legal systems very different from ours suggests two approaches based on the legal system of Periclean Athens, which I sometimes describe as the legal system of a mad economist—ingenious in ways that sometimes probably worked, and sometimes probably did not. One is to punish the prosecutor for a failed prosecution, at least if it failed badly enough. In the Athenian system, which used very large juries, if the (private) prosecutor failed to get at least a fifth of the jurors to vote for conviction he was fined a thousand drachma. A modern equivalent might be a rule under which a District Attorney who failed to convict on more than a specified fraction of his charges, or repeatedly prosecuted charges that resulted in a unanimous jury vote for acquittal, was automatically removed from office. Like the Athenian rule, it would provide a prosecutor an incentive not to make charges that he did not have a reasonably good chance of proving. Of course, it would also have the disadvantage of giving a prosecutor who had made charges an even stronger incentive than under present rules to convict the defendant, whether or not he was guilty.

An alternative would be the Athenian rule for setting criminal punishment. The prosecutor proposes a punishment, the defendant proposes a punishment, and the jury that has voted for conviction must choose between them. That was, famously, the rule that got Socrates killed. Instead of offering an alternative somewhat milder than execution, such as exile, he first suggested that he deserved a reward rather than a punishment then, at the urging of friends, proposed a fine which his friends were prepared to pay.

Despite the unfortunate outcome in that case, that rule does give the prosecutor an incentive not to seriously overcharge. A jury asked to choose between putting Aaron Swartz in prison for fifty years for what was essentially an act of civil disobedience or giving him a one month suspended sentence and a hundred dollar fine would probably have chosen the latter.

Original report here

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Wednesday, January 30, 2013

Disabled British man has done nothing illegal but police keep his computers

A porn addict found with paedophile images in a massive collection seized by officers in a raid took police to court - in a failed bid to get it all back.

Disabled Anthony Gerrard, 59, downloaded so much adult material it would have taken more than a month of non-stop viewing to watch it all. He also had tens of thousands of photographs - including 11 indecent ones of eight girls and three boys.

Police arrested him three times on suspicion of possessing indecent child photos and seized six PCs and laptops from his home in Knowle, Bristol.

But he escaped prosecution when experts revealed the child images had probably been 'unwittingly' downloaded as the adult porn was automatically sent to his computers.

They said they were found on parts of the computers that four-times married Mr Gerrard could not have accessed without specialist tools or techniques.

Police returned two of the computers - but retained those containing the child pornography.

They took Mr Gerrard to court for the forfeiture and destruction of the hard drives they had kept which had a massive 888GB of adult movies and 2.5GB of adult photos.

A district judge found in the police's favour last July, saying they could not return hard drives containing child porn because they would be distributing illegal material.

Mr Gerrard appealed, claiming they could delete or transfer the child images and return his huge stash of adult pornography.

The former lorry driver claimed: 'I'm not interested in child porn. I don't think it's fair they are keeping my computers when I haven't done anything illegal.

'I paid £40 for a month's subscription to a website and I was downloading films from it day and night. I wanted to get my money's worth. 'They cost me a couple of thousand pounds in total. Every time the police took two computers away, I would buy another two.'

Mr Gerrard, who is estranged from his son, added: 'The good thing about having a computer is you can switch it off when you've finished - you can't switch off a wife.'

But his appeal was rejected by Judge Julian Lambert, sitting with magistrates Simon Brookes and Chris Barke, who said the police were entitled to keep the computers.

They said there was no foolproof way of deleting the offending material from the computers before returning them. And the law states that if it is not 'practicable' to do that the item should be forfeited to the police.

Digital evidence recovery officer Scott Eggins told the court: 'Deletion in a computer sense is a very complicated matter. 'There is no such thing as a permanent deletion on computers unfortunately - or fortunately. 'There is no way of permanently deleting it, short of putting it through a shredder.'

PC Ben Jefferies, who arrested Mr Gerrard, said: 'The vast proportion of images that were recovered from Mr Gerrard's PC were adult in nature. The pornography that he had searched for was all adult. 'The 11 (child pornography) images had been downloaded unwittingly, probably.'

The police also said that because of the sheer volume of legal porn possessed by Mr. Gerrard it would take days to transfer it to an external hard drive. That would cost up to £100 per new drive, plus police time, and Mr Gerrard had refused to pay for that.

Judge Lambert said: 'We see no way, on the evidence in front of us, that the hard drives could be returned to the appellant with the images deleted so that they cannot be recovered.'

Mr. Gerrard, who said he only had £100 in savings, was ordered to pay £1,533 costs.

After the case he said: 'If they had just been able to delete the images and give me my computers back it would've saved a lot of court time and money. 'I'm gutted, but I've had my day in court and I thought the judge was very fair.'

He said he was paralysed after breaking his neck in an accident at home but has now recovered enough to walk with a stick.

Original report here

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Tuesday, January 29, 2013

VA: Family turns to General Assembly to pay for wrongful conviction of Bennett Barbour

After nearly three decades of fighting a rape conviction, DNA evidence cleared Charles City native Bennett Barbour of all wrongdoing. Now his family grieves his recent death, and is at a loss of how to pay thousands of dollars in legal fees used to clear his name.

"My mom borrowed money against our home to raise money for lawyers," said Rose Hewlett, Barbour's sister. "We had all kinds of fairs, and raffles to help to get lawyers because we believed in him. We knew he was innocent."

A bill now sponsored by Sen. Don McEachin (D-Richmond) in the General Assembly would compensate the Barbour family more than $160,000. Barbour died Jan. 10 of bone cancer, after fighting for decades to free his life of the disease, and the shame of a wrongful conviction.

His four sisters said in an interview Wednesday the money is not sought for retribution, but to repay their mother for her financial sacrifice.

"With Bennett gone, it's about Mom. We need to help her," said Hewlett in an interview Wednesday. "She still has bills she's paying on her home. She's 86 years old. Let her know what she did was not in vain."

The measure to compensate the family is proposed in Senate Bill 1132. The Finance Committee heard a brief presentation on the bill Wednesday morning, and will vote to advance the proposal Friday.

Original report here. More details here

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Monday, January 28, 2013

Autistic girl spent ten hours in a cell – because scum British police wrongly thought she was drunk

Despite a doctor saying she had NOT been drinking

A teenage girl with autism was arrested and hauled before the courts because police mistakenly assumed she was drunk.

Despite being completely sober, 17-year-old Melissa Jones spent ten hours in a police cell, was finger-printed and had her DNA taken.

She was charged with being drunk and disorderly, forced to appear in court and became suicidal while waiting eight months for her case to go to trial.

Last week, however, prosecutors finally realised they had got it wrong and agreed to drop the case against her.

Her mother, Christine Evans, 49, a training manager, yesterday said her daughter, who also has learning difficulties, had been through ‘hell’. ‘Having this hanging over her for the past eight months has had a terrible effect on her,’ said divorcee Miss Evans.

‘She has a basic understanding of right and wrong, so to be arrested for something she didn’t do was devastating.

‘She has tried to commit suicide and is having weekly counselling. She hardly ever goes out any more.’

Miss Jones’s ordeal began shortly before midnight on June 16 last year when she and a friend went to a shop near her home in Edge Hill, Liverpool, to buy some Coca-Cola.

Another customer, a drunken woman, became aggressive when the assistant refused to serve her, and attacked Miss Jones and her friend when they intervened.

Both girls were stamped on and suffered severe bruising.

When police arrived the attacker had fled, and Miss Jones was crying and hysterical. Despite her protestations, police assumed she had been drinking and arrested her.

Her mother ran to the shop and told officers that Melissa had autism, attention deficit disorder and communication difficulties. ‘But they didn’t want to know,’ she said. ‘Melissa hadn’t had a drop of alcohol, but they said she was drunk.

‘At the police station, a doctor confirmed she hadn’t been drinking, but still the police tried to pursue her through the courts.

‘I’ve got a lot of time for the police and the work they do, but this time they really let Melissa down.’ The police offered Miss Jones a £60 fixed penalty but she refused to admit her guilt.

Instead she was summonsed to appear before court in November last year, where she was formally charged with being drunk and disorderly.

Miss Jones, who is studying bakery at college, was due to face trial next month but was told last week that the Crown Prosecution Service had decided to drop the case.

Her solicitor Mark Ellis, of James Murray Solicitors, said: ‘Melissa has been through a terrible ordeal. ‘She is a vulnerable young girl who should never have been arrested or put before the courts.’

A spokesman for the CPS said: ‘After the first hearing in November 2012 the CPS reviewed the case, including new information from the defence, and decided that the available evidence was insufficient to prove that Miss Jones was drunk and disorderly.’

Merseyside police said a 25-year-old woman who allegedly attacked Miss Jones was later arrested but not charged due to ‘lack of evidence’. [Because they were too tired to gather any]

Original report here

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Sunday, January 27, 2013

Property Owners Prevail in Important Asset Forfeiture Case

A federal district court in Massachusetts has ruled in favor of the property owners in United States v. 434 Main Street, Tewksbury, an important asset forfeiture case. This is the case where the federal government sought the forfeiture of a motel on the grounds that a few of the motel’s customers had bought or sold illegal drugs on the premises – even though there was no evidence that the owners knew about the sales or facilitated them in any way. I previously discussed the case in this post, and it was also the focus of a Washington Post column by George Will.

Magistrate Judge Judith Dein’s opinion emphasizes the unusually extreme facts of this case as a basis for ruling that the motel was not eligible for forfeiture:

"After reviewing the scores of cases cited by the parties, I find this case to be notable in several critical respects, including (1) the Government has identified only a limited number of isolated qualifying drug-related incidents spread out over the course of more than a decade, none of which involve the Motel owner or employees; and (2) the witnesses unanimously confirmed that no efforts were undertaken to work with the Motel owner to try and reduce drug crimes at the Property prior to the institution of the forfeiture action, nor was any warning given as to the possibility of forfeiture prior to suit being filed. As a result, the instant case is easily distinguishable from other cases where the “draconian” result of forfeiture was found to be appropriate."

The decision is based on statutory grounds and does not address the constitutional issues raised by takings targeting innocent property owners. Indeed, Judge Dein reiterates the longstanding, but in my view dubious, doctrine that “it is not necessary that the forfeited property be owned by a culpable person.”

Although the case is a significant victory for property owners, it also highlights the difficult of combating asset forfeiture abuse. The motel owners won only after extensive litigation. And even then, they might not have succeeded but for the efforts of the Institute for Justice, the prominent libertarian public interest law firm specializing in property rights issues that represented them pro bono, and helped attract national attention to the case. And the case may not be over yet, since federal prosecutors could decide to appeal. Most owners of property targeted for asset forfeiture do not have the resources for a prolonged legal battle. Asset forfeiture abuse remains a serious problem in many states. The struggle over this issue will continue.

As the Boston Business Journal points out, the case is also notable as “a high-profile loss for U.S. Attorney Carmen Ortiz, whose office has been besieged by criticism in recent weeks over her handling of the prosecution of Internet activist Aaron Swartz.” It will be interesting to see whether Ortiz decides to appeal this decision to the US Court of Appeals for the First Circuit.

Original report here

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Saturday, January 26, 2013

British man cleared of killing woman loses battle for a £500,000 payout: Judges rule that another jury could have found him guilty

The man sensationally acquitted of murdering Jill Dando yesterday lost his High Court bid for compensation – on the grounds that another jury could have found him guilty.

Two judges ruled Barry George, who spent eight years in jail before being cleared of the TV presenter’s killing at a retrial, was not eligible for up to £500,000 as a victim of a ‘miscarriage of justice’.

Lawyers for the convicted sex offender claimed that the Justice Secretary had unfairly and unlawfully decided Mr George, 52, was ‘not innocent enough to be compensated’.

But in ruling that Mr George had ‘failed the legal test’ for an award, Lord Justice Beatson and Mr Justice Irwin said the minister who had opposed his compensation bid was ‘entirely justified in the conclusion he reached’. They added: ‘There was indeed a case upon which a reasonable jury, properly directed, could have convicted the claimant of murder.’

Crimewatch presenter Miss Dando, 37, was shot outside her home in Fulham, south-west London in April 1999.

The murder prompted an enormous inquiry by Scotland Yard and resulted in unemployed loner Mr George being convicted in July 2001. He was granted a retrial on appeal, and received a unanimous acquittal by a jury in August 2008.

Mr George then made a claim for compensation for lost earnings and wrongful imprisonment, but this was rejected in January 2010.

He went to court again to seek a reconsideration of his case, which could have opened the way for him to claim as much as £500,000.

His barrister, Ian Glen QC, insisted that the original decision to refuse compensation was ‘defective and contrary to natural justice’, arguing that for more than 30 years, those acquitted on retrials in similar circumstances had been compensated.

Previously, compensation was only awarded for a miscarriage of justice if a claimant could effectively prove they were innocent.

But a Supreme Court hearing in 2011 widened this to say a person is eligible for compensation if they can prove that no set of circumstances could possibly lead to their conviction by a jury. The judges ruled Mr George’s case did not pass this second test.

His solicitor, Nick Baird, said: ‘We are very disappointed with the judgment and shall be applying for permission to leapfrog the Court of Appeal to have the matter heard before the Supreme Court.’

Mr George’s action was one of five test cases to decide who is now entitled to payments in ‘miscarriage of justice’ cases.

Decisions to refuse payouts in all five cases were defended by current Justice Secretary Chris Grayling in a three-day hearing last October.

Only one claimant, Ian Lawless, who spent eight years in jail for murder before being freed by the Court of Appeal in 2009, was successful. The judges ruled the decision to refuse compensation was flawed and must be reconsidered.

Mr George – who has a record for attempted rape and indecent assault – and the three other claimants failed in their challenges.

A Ministry of Justice spokesman said: ‘We welcome the Court’s decision in these cases, in that it confirms that our decision not to grant compensation to the named individuals was correct.’

In 2010, the Mail revealed how former deputy headmaster Sion Jenkins had been refused compensation for the six years he spent in jail accused of murdering foster daughter Billie-Jo. He had sought up to £500,000 damages for the term he served before he was acquitted.

But although Mr Jenkins said he fitted ‘all the criteria’ for a payout, the Ministry of Justice rejected his request after officials assessed the case. Rules stated that applicants for miscarriage of justice compensation had to show they were ‘clearly innocent’ to receive money.

Original report here

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Friday, January 25, 2013

Revealed: Aaron Swartz prosecutor 'drove another hacker to suicide in 2008 after he named him in a cyber crime case'

The prosecutor who is being accused of acting 'over zealously' in his pursuit of online pioneer Aaron Swartz, who killed himself at the weekend, played a role in another young hacker's suicide in 2008, it was claimed today.

Assistant United States Attorney Stephen Heymann had reportedly been insisting on jail time for Swartz and was refusing to negotiate a plea deal on the 30 years in jail he faced for stealing academic papers.

In 2008, another young hacker also committed suicide after being named in a case Heymann was leading.

Jonathan James killed himself aged 24 two weeks after the Secret Service raided his house as part of its investigation into the TJX Hacker case - which is known as the largest identity hack in history.

His friend Christopher Scott was charged with breaching retail networks, and James was reportedly the co-conspirator 'J.J.' mentioned in the indictment.

James said he had nothing to do with the retail hack but believed that the feds would try to pin it on him, according to Buzz Feed.

In his suicide note, James said he had no faith in the justice system, which he believed were trying to tie him to a crime he did not commit.

'I have no faith in the "justice" system. Perhaps my actions today, and this letter, will send a stronger message to the public.

'Either way, I have lost control over this situation, and this is my only way to regain control. 'Remember, it's not whether you win or lose, it's whether I win or lose, and sitting in jail for 20, ten, or even five years for a crime I didn't commit is not me winning. I die free.'

James was the first juvenile put into confinement for a federal cyber crime case.

Aaron Swartz was charged last September with wire fraud, computer fraud and unlawfully obtaining information from a protected computer after he allegedly tried to steal millions of scholarly papers from Massachusetts Institute of Technology in January 2011.

It is thought that the stress and strain of the looming federal trial contributed to the depression which is being blamed for Swartz taking his own life on January 11 at his Brooklyn, New York apartment.

Swartz's lawyer had originally approached federal prosecutors in fall 2012 about a deal and was turned down even though JSTOR - the online database Swarts hacked into - declined to pursue charges.

His friends have accused Heymann of contributing to Swartz's suicide, with his unwillingness to compromise on his prosecution.

'Aaron's death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach,' his family said in a statement.

'Decisions made by officials in the Massachusetts U.S. attorney's office and at MIT contributed to his death.'

Speaking to Huffington Post yesterday, Swartz's attorney Elliot Peters accused Massachusetts assistant U.S. attorney Stephen Heymann of pursuing federal charges against Swartz to gain publicity.

He said Heymann was looking for 'some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill. He thought he was going to receive press and he was going to be a tough guy and read his name in the newspaper.'

Peters said Heymann was threatening Swartz with potentially longer prison sentences if Swartz didn't accept his plea deal offers.

'He was very intransigent,' Peters said of Heymann. 'It was his philosophy that as you got closer to trial the plea offers only got worse. But the offer he was making was so unreasonable that having it get worse didn't concern me much.'

Heymann did not respond to requests for comment.

Original report here

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Wednesday, January 23, 2013

Exoneration is only the start

On November 12, 2009, Fernando Bermudez walked out of a courtroom and into the free world. After spending 18 years in prison for a 1991 murder in Greenwich Village that he did not commit, the charges against him were dropped. He was declared innocent. But a difficult path awaited him.

Bermudez recalls having to readjust to basic aspects of life that many take for granted—like sleeping in his own bedroom, an environment worlds away from his stark prison cell. "Just simply being able to cross the street was an issue. Shopping at department stores and handling money confused me," he says.

"Upon my exoneration, reentry into society was culture shock," he says. "I had to adjust from nearly two decades of harsh prison life to a drastically changed society with no financial or psychological assistance to help me cope against the harm that my family and I suffered. "

In recent years, some criminal justice advocates in New York have focused on the need for stronger procedures to avoid wrongful convictions: According to the Innocence Project, more than 10 percent of DNA exonerations nationwide have occurred in New York State.

Meanwhile , other advocates have called attention to the plight of former inmates returning to society.

In exonerees, these two hot topics converge. All former prison inmates face challenges. But, three months of reporting and interviews with 12 exonerees and thirty parolees (who were not wrongly convicted) reveal that exonerees are spared few of the indignities that "guilty" ex-inmates suffer.

Readjustment is just as hard

Some of the problems facing exonerees mirror those confronting all former inmates—the difference is in the degree of injustice. Some are as simple as finding shelter.

Korey Wise, one of the men wrongly convicted of the Central Park beating and rape of 1989, echoes these accounts. Before his entrance into prison, he was 16 years old and lived with his mother. After being incarcerated for more than 11 years, Wise had difficulty finding a place to live. He stayed with friends and family for three years and now resides in a transitional housing program for people seeking assistance in the Bronx. (Wise was arrested on December 19th and charged with menacing and assault. He denies the allegations against him).

Similar to individuals on parole, more than half of the exonerees interviewed also faced some type of obstacle to finding a job or holding down steady work. Incarceration, even for individuals innocent of their convicted crime, can be a disadvantage in the labor-market.

The disadvantage does not appear to be nearly as severe for exonerees as it does for those on parole, who are frequently denied employment due to their criminal record. But exonerees may encounter difficulties maintaining a stable job, while trying to readjust to society. After two years of working in construction after his incarceration, Wise was laid off during the recent recession. For both Bermudez and Wise, public speaking engagements are a source of income, while Wise is also on disability.

John Kogut, exonerated of a Long Island rape and murder in 2005, initially found employment through Centurion Ministries, a national organization that frees innocent people from prison by reinvestigating their cases; it was responsible for Kogut's exoneration. After his release, he worked at a church as a handyman for year and at a small dog rescue service for another three years.

Currently, he is unemployed, with hopes of starting his own dog rescue business. After his return from prison, Centurion Ministries assisted him in finding an apartment and paying the first few months' rent, while he saved money. "At the beginning, I had nothing," Kogut says, "If I didn't have Centurion Ministries, who knows where I would be now."

Kogut found himself having to start life from scratch. He faced problems obtaining critical documents like identification and his social security card after his return from prison—a process that lasted six months. "When you come out, you really don't have none of that. After doing 15 to 20 years, you don't exist no more. You have to build your identity all over again," he says. Kogut emphasizes that without a support network it can be nearly impossible to adjust and reestablish one's life outside the prison walls.

Unique challenges

Exonerees are often left coping for the rest of their lives with the trauma left by both their wrongful conviction and lengthy prison term. It is not uncommon for them to enter society suffering from anxiety as well as more significant mental health issues.

Like other ex-inmates, they may turn to drugs or alcohol in an effort to deal with the effects of their wrongful conviction. Kogut says he initially turned towards illegal substances as a coping mechanism. "It's an issue of coming out angry. These people—even though they're wrong—want to fight you tooth and nail (on your innocence). They won't admit they were wrong," Kogut says.

Exonerees may file for monetary compensation as a result of their wrongful conviction. Twenty-seven states and Washington D.C. have laws that promise varying amounts of compensation for exonerees. But it can take several years to receive the funds ,and advocates maintain that the amount of money provided by many states is not enough.

New York defers to the Court of Claims to decide how much an individual is entitled.

In states without compensation statutes, obtaining money can be a lengthy and complicated legal process. Research conducted by The New York Times in 2007 found that of 206 exonerees surveyed, 40 percent had received no compensation from their state.

Currently, Bermudez has a civil suit for compensation pending against New York State and city, while Kogut and Wise's suits are in the federal court.

Exonerees acknowledge that a few, small-scale support systems do exist for them coming out of prison, like the social work program established by the Innocence Project in 2006 or in Kogut's case, Centurion Ministries. Exonerees rely on these types of services or mental health counselors in times of need; yet, the overwhelming consensus is that these are far too few in number.

Advocates assert that New York State offers exonerees no reentry services, in contrast with ex-offenders. According to a New York State Department of Corrections and Community Supervision spokesperson, the department partners with community based organizations and governmental agencies to deliver support to individuals on parole. The spokesperson said he did not know whether exonerees could qualify for these services.

Both exonerees and ex-offenders encounter serious problems reestablishing relationships with their families and friends. In many instances, their incarceration disrupts their bonds with their children. Bermudez explains that his relationship with his daughter was affected by his wrongful conviction. "She was under the assumption that I didn't love her because I was still trying to adjust. We were just trying to situate ourselves as a family. Now she realizes that it wasn't that I didn't love her, it was just that her dad had real issues in terms of trying to understand the world after being away from it so long," he says.

Similarly, Kogut experienced difficulties reestablishing relationships disrupted by his incarceration: "Most people forget about you after that amount of time."

The sense of isolation can be frightening. As Bermudez recalls, "It's hard to forget what you saw, it's hard to forget the idea of you being trapped in a cell and declaring your innocence everyday whether mentally or to someone else, and not being believed, or feeling voiceless."

Original report here

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Tuesday, January 22, 2013

Carmen Ortiz and Stephen Heymann: Accountability for prosecutorial abuse and overkill. The vindictive old bag (below) is unrepentant

by Glenn Greenwald

Imposing real consequences on these federal prosecutors in the Aaron Swartz case is vital for both justice and reform

Whenever an avoidable tragedy occurs, it's common for there to be an intense spate of anger in its immediate aftermath which quickly dissipates as people move on to the next outrage. That's a key dynamic that enables people in positions of authority to evade consequences for their bad acts. But as more facts emerge regarding the conduct of the federal prosecutors in the case of Aaron Swartz – Massachusetts' US attorney Carmen Ortiz and assistant US attorney Stephen Heymann – the opposite seems to be taking place: there is greater and greater momentum for real investigations, accountability and reform. It is urgent that this opportunity not be squandered, that this interest be sustained.

The Wall Street Journal reported this week that – two days before the 26-year-old activist killed himself on Friday – federal prosecutors again rejected a plea bargain offer from Swartz's lawyers that would have kept him out of prison. They instead demanded that he "would need to plead guilty to every count" and made clear that "the government would insist on prison time". That made a trial on all 15 felony counts – with the threat of a lengthy prison sentence if convicted – a virtual inevitability.

Just three months ago, Ortiz's office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which "carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony", meaning "the sentence could conceivably total 50+ years and [a] fine in the area of $4 million." That meant, as Think Progress documented, that Swartz faced "a more severe prison term than killers, slave dealers and bank robbers".

Swartz's girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz's funeral in Chicago on Tuesday, his father flatly stated that his son "was killed by the government".

Ortiz and Heymann continue to refuse to speak publicly about what they did in this case – at least officially. Yesterday, Ortiz's husband, IBM Corp executive Thomas J. Dolan, took to Twitter and – without identifying himself as the US Attorney's husband – defended the prosecutors' actions in response to prominent critics, and even harshly criticized the Swartz family for assigning blame to prosecutors: "Truly incredible in their own son's obit they blame others for his death", Ortiz's husband wrote. Once Dolan's identity was discovered, he received assertive criticism and then sheepishly deleted his Twitter account.

Clearly, the politically ambitious Ortiz – who was touted just last month by the Boston Globe as a possible Democratic candidate for governor – is feeling serious heat as a result of rising fury over her office's wildly overzealous pursuit of Swartz. The same is true of Heymann, whose father was Deputy Attorney General in the Clinton administration and who has tried to forge his own reputation as a tough-guy prosecutor who takes particular aim at hackers.

Yesterday, the GOP's House Oversight Committee Chairman, Darrell Issa, announced a formal investigation into the Justice Department's conduct in this case. Separately, two Democratic members of the House Judiciary Committee issued stinging denunciations, with Democratic Rep. Jared Polis proclaiming that "the charges were ridiculous and trumped-up" and labeling Swartz a "martyr" for the evils of minimum sentencing guidelines, while Rep. Zoe Lofgren denounced the prosecutors' behavior as "pretty outrageous" and "way out of line".

A petition on the White House's website to fire Ortiz quickly exceeded the 25,000 signatures needed to compel a reply, and a similar petition aimed at Heymann has also attracted thousands of signatures, and is likely to gather steam in the wake of revelations that another young hacker committed suicide in 2008 in response to Heymann's pursuit of him (You can [and I hope will] sign both petitions by clicking on those links; the Heymann petition in particular needs more signatures).

In sum, as CNET's Declan McCullagh detailed in a comprehensive article this morning, it is Ortiz who "has now found herself in an unusual – and uncomfortable – position: as the target of an investigation instead of the initiator of one." And that's exactly as it should be given that, as he documents, there is little question that her office sought to make an example out of Swartz for improper and careerist benefits. Swartz "was enhancing the careers of a group of career prosecutors and a very ambitious – politically-ambitious – U.S. attorney who loves to have her name in lights," the Cambridge criminal lawyer Harvey Silverglate told McCullagh. Swartz's lawyer said that Heymann "was going to receive press and he was going to be a tough guy and read his name in the newspaper." Writes McCullagh:
"If Swartz had stolen a $100 hard drive with the JSTOR articles, it would have been a misdemeanor offense that would have yielded probation or community service. But the sweeping nature of federal computer crime laws allowed Ortiz and Heymann, who wanted a high-profile computer crime conviction, to pursue felony charges. Heymann threatened the diminutive free culture activist with over 30 years in prison as recently as last week."

For numerous reasons, it is imperative that there be serious investigations about what took place here and meaningful consequences for this prosecutorial abuse, at least including firing. It is equally crucial that there be reform of the criminal laws and practices that enable this to take place in so many other cases and contexts.

To begin with, there has been a serious injustice in the Swartz case, and that alone compels accountability. Prosecutors are vested with the extraordinary power to investigate, prosecute, bankrupt, and use the power of the state to imprison people for decades. They have the corresponding obligation to exercise judgment and restraint in how that power is used. When they fail to do so, lives are ruined – or ended.

The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless – or especially, as in Swartz's case, those who challenge power – are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by Ortiz's office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.

This immunity for people with power needs to stop. The power of prosecutors is particularly potent, and abuse of that power is consequently devastating. Prosecutorial abuse is widespread in the US, and it's vital that a strong message be sent that it is not acceptable. Swartz's family strongly believes – with convincing rationale – that the abuse of this power by Ortiz and Heymann played a key role in the death of their 26-year-old son. It would be unconscionable to decide that this should be simply forgotten.

Beyond this specific case, the US government – as part of its war to vest control over the internet in itself and in corporate factions – has been wildly excessive, almost hysterical, in punishing even trivial and harmless activists who are perceived as "hackers". The 1984 Computer Fraud and Abuse Act (CFAA) – enacted in the midst of that decade's hysteria over hackers – is so broad and extreme that it permits federal prosecutors to treat minor, victimless computer pranks – or even violations of a website's "terms of service" – as major felonies, which is why Rep. Lofgren just announced her proposed "Aaron's Law" to curb some of its abuses.

But the abuses here extend far beyond the statutes in question. There is, as I wrote about on Saturday when news of Swartz's suicide spread, a general effort to punish with particular harshness anyone who challenges the authority of government and corporations to maintain strict control over the internet and the information that flows on it. Swartz's persecution was clearly waged by the government as a battle in the broader war for control over the internet. As Swartz's friend, the NYU professor and Harvard researcher Danah Boyd, described in her superb analysis:
"When the federal government went after him – and MIT sheepishly played along – they weren't treating him as a person who may or may not have done something stupid. He was an example. And the reason they threw the book at him wasn't to teach him a lesson, but to make a point to the entire Cambridge hacker community that they were p0wned. It was a threat that had nothing to do with justice and everything to do with a broader battle over systemic power.

"In recent years, hackers have challenged the status quo and called into question the legitimacy of countless political actions. Their means may have been questionable, but their intentions have been valiant. The whole point of a functioning democracy is to always question the uses and abuses of power in order to prevent tyranny from emerging. Over the last few years, we've seen hackers demonized as anti-democratic even though so many of them see themselves as contemporary freedom fighters. And those in power used Aaron, reframing his information liberation project as a story of vicious hackers whose terroristic acts are meant to destroy democracy . . . .

"So much public effort has been put into controlling and harmonizing geek resistance, squashing the rebellion, and punishing whoever authorities can get their hands on. But most geeks operate in gray zones, making it hard for them to be pinned down and charged. It's in this context that Aaron's stunt gave federal agents enough evidence to bring him to trial to use him as an example. They used their power to silence him and publicly condemn him even before the trial even began."

More here

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Monday, January 21, 2013

Judge: Manning will not be allowed to present a defense

Denise Lind seems to be a real lamebrain. Restricting the defense just opens any verdict up to appeal -- probably to a more lenient civilian court. It's probably her idea of looking tough but it just makes her look like a Gestapo goon

A military judge's ruling on Wednesday tightly limited an Army private's ability to argue he had good reasons for allegedly sending hundreds of thousands of classified documents to the anti-secrecy website WikiLeaks.

Pfc. Bradley Manning can use motive evidence at his June 3 trial only to show that he didn't know the leaked material would be seen by al-Qaida, or to seek leniency at sentencing, Col. Denise Lind ruled during a pretrial hearing. Evidence of motive isn't relevant to the other charges, she said.

Prosecutors say Manning told an online confidant-turned-government-informant that he leaked the material because "I want people to see the truth" and "information should be free." Lind said such material is only relevant as evidence of "whether he knew he was dealing with the enemy."

She also barred Manning from using at trial any reports compiled by government agencies that concluded the WikiLeaks revelations didn't compromise national security. The defense can use such material only during sentencing.

The ruling was largely a victory for the government, which had asked Lind to exclude any use of motive evidence from the trial.

The 25-year-old Oklahoma native is accused of sending hundreds of thousands of Iraq and Afghanistan battlefield reports, State Department diplomatic cables, other classified records and two battlefield video clips to WikiLeaks in 2009 and 2010 while working as an intelligence analyst in Baghdad. He faces 22 charges, including aiding the enemy, which carries a maximum life sentence.

To win a conviction on that offense, prosecutors must prove he knew the material would be seen by the enemy, identified by prosecutors as several al-Qaida groups and Osama bin Laden, the al-Qaida leader killed by U.S. commandos in 2011. Prosecutors say they have evidence that bin Laden requested and received from an associate some of the WikiLeaks disclosures attributed to Manning.

Before the hearing ended, Lind also heard arguments on a defense motion claiming she should dismiss the case because Manning was denied his right to a speedy trial. He's been in pretrial confinement for nearly two years and eight months.

Civilian defense attorney David Coombs said prosecutors have dragged their feet and a commander rubber-stamped their requests for delay after delay.

"There are no winners when justice is delayed, and in this case, it has been delayed a significant period of time," Coombs said.

Prosecutor Maj. Ashden Fein said the delays were reasonable given the complexity of the case and the huge volume of classified material to be reviewed and cleared by various government agencies for use in the court-martial.

"There was constant motion" by prosecutors on those issues, Fein said.

The defense has focused partly on the 635 days between Manning's arrest in May 2010 and his arraignment last February, a period far in excess of the 120-day rule. Army Col. Carl Coffman Jr., who approved those delays, testified in November that they reflected the sensitive nature of the material Manning was accused of leaking.

Original report here

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Sunday, January 20, 2013

British Newspaper launches High Court bid to end the scandal of Secret Justice

British newspapers are the thin thread that keeps justice alive in Britain. British governments have no respect for anything but their own convenience

Harrowing claims of British complicity in torture are at the centre of a Mail on Sunday bid to stop court rulings being kept secret. This newspaper has made an application in the High Court for a secret judgment of alleged torture to be published in full.

Secret judgments – court decisions whose contents are hidden from both the public and the people they affect – are set to become far more common if the Justice and Security Bill now before Parliament becomes law.

The case cited in The Mail on Sunday’s application involves claims that British troops in Afghanistan routinely handed over prisoners to the country’s security service, the NDS, knowing they would be tortured.

Our court application against the Ministry of Defence quotes warnings from senior judges that secret rulings pose a grave threat to free speech and the rule of law.

The case involves two separate judgments made in a horrifying Afghan torture case in 2010: one open, the other kept secret.

The ‘open’ judgment ruled that prisoners captured by British troops could be transferred to the NDS in Kandahar and Lashkar Gah in Helmand, but not in Kabul. The reasons for this were contained in the ‘secret’ ruling, seen only by the Government and a security-cleared ‘special advocate’.

The MoS’s application cites new disclosures in a second case, which was brought by Afghan prisoner Serdar Mohammed, who claims British troops handed him to the NDS knowing he would be tortured.

Just before the hearing into his case was due to start last November, Defence Secretary Philip Hammond announced that prisoners would no longer be turned over to the Afghan authorities. It followed the first public disclosure of a statement made by a senior MoD official during the 2010 torture case.

MoD lawyer Barry Burton described how a prisoner had been handed to the NDS in Kabul after a personal assurance from the agency’s security chief that he would not be mistreated. However, the man later complained he had been beaten with iron rods, causing lasting injuries. The statement also claimed that UK officials took photos of the victim’s injuries.

Mr Burton’s testimony was originally considered under a ‘closed material procedure’, which allows the Government to present evidence to a judge without having to disclose it to the whole court. Following the 2010 case, the Supreme Court ruled that CMPs – which are alien to centuries of English legal tradition – should not be used at all. However, in the Justice and Security Bill, the Government is seeking to overthrow this through legislation. If successful, it means CMPs are set to become common.

This newspaper is arguing that because Mr Burton’s statement has already been published by the MoD, the security considerations that kept it secret no longer apply.

As a result, the original secret judgment, or at least the parts which discussed Mr Burton’s testimony, should be published, too. Our High Court application, issued on Thursday, cites comments made in an earlier case by Lord Judge, the Lord Chief Justice, saying the press has a special role in ensuring justice is not only done, but seen to be done.

Lord Judge said: ‘In litigation, particularly litigation between the Executive... and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself.’ Closed judgments, he went on, should only ever be given in ‘extreme circumstances’.

The application also cites the President of the Supreme Court, Lord Neuberger, who said in a lecture in November: ‘Without judgments there would be no justice, because decisions without reasons are not justice: indeed, they are scarcely decisions at all.’

The MoS is also asking for a ruling that secret judgments should be regularly reviewed, to ensure that material does not stay hidden for longer than necessary.

An MoD spokesman said that the Government had not yet had time to decide how it would respond

Original report here

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Saturday, January 19, 2013

NY trial lawyers promote videotaping of all interviews with suspects

This reform is one of the most important ways of preventing police and prosecutor abuse but has been very spottily implemented. In some jurisdictions it has been in place for decades and there is no excuse for inaction over it

In November, the State Bar included the prevention of wrongful convictions on our slate of top legislative priorities for 2013. One measure that would prevent wrongful convictions is mandatory videotaping of custodial interrogations. Videotaping interrogations would help secure the conviction of guilty individuals while preventing the wrongful conviction of the innocent. Opponents of mandatory recording contend that voluntary participation by law enforcement would be sufficient to prevent wrongful convictions, but unfortunately, voluntary use of videotaped interrogations is inconsistent throughout the state and is not currently utilized in many counties.

The New York State Bar Association has advocated for mandatory recording of interrogations since 2004, and we have sponsored and monitored successful pilot programs in a number of counties. Mandatory videotaping is a key component of the wrongful conviction package we have been advancing in recent years, and we were pleased that the Assembly passed a bill last year that would require videotaping interrogations. New York City Police Commissioner Raymond W. Kelly's recent decision to voluntarily record interrogations for some serious crimes, and Mayor Michael R. Bloomberg's pledge to support it with public money, represent significant progress. After their announcement, in a Letter to the Editor published in the New York Times, we once again called on the governor and the legislature to mandate the practice by law.

Original report here

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Friday, January 18, 2013

Sheriff and deputy sued after gross miscarriage of justice

In a 31-page civil suit filed Dec. 28 in federal court, the innocent local man who spent 12 years in jail for murder named the current Culpeper County Sheriff and chief deputy as among "the architects" of his wrongful conviction.

Plaintiff Michael Wayne Hash, 31, of Crozet in Albemarle County is seeking unspecified monetary damages in the lawsuit filed in the U.S. District Court for the Western District of Virginia Charlottesville Division by his attorneys at Hunton & Williams related to Hash's 2001 conviction for capital murder in Culpeper County Circuit Court.

The civil suit names as defendants former Culpeper County Commonwealth's Attorney Gary Close, prosecutor in the case, Sheriff Scott Jenkins - lead investigator in the case - CCSO Chief Deputy James Mack, investigator in the case, former CCSO Sgt. Bruce Cave, former CCSO jailer Mary Peters Dwyer and Paul Carter, an imprisoned government informant who repeatedly lied on the stand at Hash's trial.

The civil suit requests a jury trial on the matter in the federal court in Charlottesville where it was filed.

Hash was freed from prison in March after U.S. District Court Judge James Turk vacated his conviction in the 1996 murder of neighbor Thelma Scroggins in her Lignum home. In his scathing written reversal, Turk said the Culpeper justice system used "methods that offend a sense of justice" in the investigation and prosecution of Hash representing "an extreme malfunction in the state criminal justice system."

Close, a prominent local Republican who served as commonwealth's attorney from 1991 to 2012, resigned within weeks of Turk's ruling being released. He could not be reached for comment Friday. Jenkins did not respond to several requests for comment.

Hash's attorney, in an email to the Star-Exponent Friday, confirmed that the civil suit had been filed.

"Mike will never be able to recover the nearly 12 years he spent in jail for a crime he did not commit," said lawyer Matthew Bosher. "One of the aims of the lawsuit is to hold the officials in Culpeper accountable for the misconduct that cost him all those years."

Bosher said a trial in the matter had not yet been scheduled.

Hash was 19 when he was arrested in the Scroggins murder for which he was wrongfully convicted by a jury in February 2001 and sentenced to life in prison with no parole. He was 15 when his neighbor was shot four times in the head.

In the civil suit recently filed in Hash's wrongful conviction, it says the named defendants "engaged in a concerted and malicious effort to convict Hash for a brutal crime despite the total absence of credible evidence against him." No physical evidence ever tied Hash to the crime scene and he maintained his innocence from the start. At least five people testified at his trial that he was elsewhere the night Scroggins was killed.

And yet Hash was arrested in 2000 in the crime along with two other local young men even though an initial investigation concluded a single assailant had murdered Scroggins, a 74-year-old retired mail carrier, widow and church organist at Lael Baptist Church. Hash was never a suspect in the initial investigation. The cold case was reopened by former Culpeper Sheriff Lee Hart shortly after his election won on a platform of solving unsolved crimes. Hart assigned Jenkins lead investigator on the case.

Within months, Hash was a suspect, taken into custody at 12:28 a.m. on May 17, 2000 by Jenkins and Mack, according to court records.

Hash's civil suit, which does not name Hart, says the named defendants engaged in multiple "unlawful acts" in wrongfully convicting him of the crime including: feeding witnesses information about the case; coaching witnesses in their false accounts and persuading witnesses to lie by promising them favorable treatment.

"Defendant law enforcement officials also went to great lengths to suppress and withhold the evidence of their own misconduct to ensure Hash's false arrest, unfair trial, wrongful conviction and continued imprisonment after his conviction," the suit says. "As a result of defendants' intentional, bad faith, willful, wanton, reckless and/or deliberately indifferent acts and omissions, Michael Hash was deprived of his federal constitutional rights, was robbed of nearly 12 years of his life and freedom and sustained severe physical, emotional and economic damages."

According to the civil suit, Jenkins had never led a homicide investigation and Mack had never investigated any major crime when Hart assigned them to the Scroggins murder. The civil suit quoted sworn testimony in 2011 from Jenkins on the matter: "James Mack I don't think ever investigated anything more than a petty larceny in his entire career, and he spent four years prior as jail officer under Sheriff Mitchell ... Mack is a black male. He was put in (the Investigations) division for that reason. They wanted a black officer in the division, and that's why he was put there ... He had absolutely, to my knowledge, no specialized training for investigations whatsoever. He was so to speak learning on-the-job training was what it was, assigned with me to this cold case ... I know it sounds horrible and it is embarrassing to think that an office did that, but that's the political nature of the sheriff's office, that people with no knowledge and experience are allowed to be put in positions that can bring horrible results."

Calvin Bruce Cave was assigned to supervise Jenkins and Mack even though he had never investigated a murder, according to Hash's civil suit.

Among the witnesses pursued against Hash during Jenkins' investigation was Hash's cousin Alesia Shelton, serving time in jail for a 1999 shooting. "Deputies Mack and Jenkins offered to 'help' Shelton or to 'shorten her sentence' in exchange for information," the civil suit says, in spite of the fact for most of the initial interview she insisted repeatedly she knew nothing about the Scroggins homicide.

Following a cigarette break outside of the jail, Shelton was recorded as saying, "that's when it hit me," vaguely describing discussions she supposedly had about the crime with Hash and the two other teen aged boys charged in Scroggins murder, Jason Kloby and Eric Weakley. Four days later, Shelton failed a lie detector test revealing she was deceptive on every question implicating Hash - information never disclosed at Hash's trial.

Another key witness against Hash was Weakley, who last year recanted any and all testimony implicating Hash or himself in Scroggins' murder. In a recent sworn statement included as part of the civil suit, Weakley said, "Jenkins and Mack showed me everything you can imagine about the crime. They showed me awful crime scene photos ... Jenkins and Mack talked to me about a lot of other details of the murder such as the location where Ms. Scroggins' body had been found, the position it was in, and how she died."

Weakley, who spent nearly seven years in jail after accepting a plea deal in the Scroggins murder, said Jenkins and Mack "became extremely frustrated" with him in subsequent interviews. "When I would answer questions in a way they didn't like, the investigators would suggest that I was lying or confused," Weakley recently said.

Eventually, he agreed to go along with the story.

Weakley said, "Once I finally said I had been there, Jenkins and Mack made me repeat the story back to them over and over again. They would keep repeating questions until I gave them an answer that satisfied them."

Weakley's attorney subsequently started negotiation with Close to make a deal whereby Weakley testified against Hash and Kloby. Kloby was found not-guilty at trial.

According to the civil suit filed by Hash and his attorneys, Virginia State Police Agent Wayne Carwile disagreed with the decision to arrest Hash.

"I don't believe anything that Eric Weakley said, and the Shelton girl failed the polygraph on issues that were important to a very important investigation, so as far as I'm concerned, she wasn't reliable either," Carwile said in a sworn statement that's part of the civil suit.

Carwile said he warned prosecutor Close that Weakley was entirely unreliable and "just saying things."

Further, according to the civil suit, Jenkins himself admitted under oath he believed Hash's arrest was not "proper" because the CCSO "had a very weak case." And yet "the sham investigation" continued, the civil suit said.

Among other improprieties detailed in the civil suit regarding Jenkins' investigation of Hash were intimidation tactics used on alibi witnesses and the orchestrated transfer of Hash to the jail in Charlottesville so as to expose him to known prison snitch Paul Carter.

"Culpeper officials engaged in extraordinary machinations in order to put Hash in a cell block with Paul Carter," the civil suit says, adding Hash was the only inmate in the last 15 years transferred from the Culpeper jail to the Charlottesville jail.

The cell block in which Hash was placed generally housed black males, according to the civil suit, whereas Hash is white. According to a jail officer quoted in the suit, "it was highly unusual to place a white teenager such as Hash in a permanent housing cell block with all black males."

In an attempt to legitimize the transfer, civil suit defendant Mary Dwyer, CCSO jailer at the time, created a false report on May 24, 2000 stating that Hash was transfered "for administrative reasons" such as being closer to his court-appointed attorney, according to the civil suit.

"Dwyer would later admit in a deposition that moving Hash to be closer to his attorneys was not the 'real reason' for the transfer and that explanation was provided because it 'sounded good' and that her May 24, 2000 report may have been created solely 'because it looks pretty on paper,'" according to the civil suit.

For years, the suit continued, Close denied the true purpose of the transfer until earlier in 2012 when "he finally admitted the real reason for the transfer: to put Hash in 'a jail where there was a snitch.'"

Prior to Carter's meeting with Hash in the Charlottesville jail, the informant was visited by two Culpeper law enforcement officials who fed Carter information about the Scroggins murder, according to the civil suit. Hash denied any involvement in the murder in speaking with Carter.

And yet on June 26, 2000, Jenkins and Mack met with Carter for about 35 minutes and subsequently Jenkins created a false report for the investigation file stating Hash had confessed the crime to the informant, according to the civil suit. Carter struck a deal with Jenkins, Mack and Close that in exchange for his false testimony at Hash's trial the Culpeper authorities would assist in reducing his federal sentence.

The agreement was concealed at Hash's trial. Close, in addition, went on to testify falsely at trial regarding the arrangement with Carter saying none existed. Mack and Jenkins, in earlier appeals by Hash of his murder conviction, also lied about the jail transfer and the promises to help Carter get his sentence reduced, according to the civil suit.

"Also, Culpeper officials have never turned over the letters, that according to Jenkins, Paul Carter wrote to them," the civil suit says. "Gary Close also admits that a box of documents related to Hash's case has 'gone missing.'"

Judge Turk, in his recent analysis of the case against Hash, summarized Close's conduct as follows: "The proseuctor's office engaged in a series of lies and failures to disclose exculpatory evdience to Hash's trial counsel." Turk further characterized Jenkins' and Mack's conduct in the case as rising "to the level of outrageous misconduct because the acts were intentional and not merely negligent."

Original report here

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Thursday, January 17, 2013

Federal justice and Aaron Swartz’s death

Anger at Swartz's prosecutors is valid. Anger at the federal justice system in which they acted is needed

Aaron Swartz was not the first brilliant young technologist to commit suicide while facing prosecution by the U.S. government for cybercrimes. In 2008, a young hacker named Jonathan James killed himself when he was named as a suspect in a case brought by the very same prosecutor who zealously pursued Swartz — Massachusetts Assistant U.S. Attorney Stephen Heymann.

Unlike Swartz, James left a note. “I have no faith in the ‘justice’ system. Perhaps my actions today, and this letter, will send a stronger message to the public. Either way, I have lost control over this situation, and this is my only way to regain control.” He had been incarcerated for cybercrimes as a teenager. Meanwhile Swartz’s family and partner directed some blame for his suicide last week at “a criminal justice system rife with intimidation and prosecutorial overreach.”

Swartz’s defense lawyer Elliot Peters has specifically decried the zealousness with which the prosecutor pursued his client. Heymann, Peters charged this week, “was very intransigent.” Peters said that the prosecutor was seeking “some juicy looking computer crime cases and Aaron’s case, sadly for Aaron, fit the bill.” According to Peters, “[Heymann] was going to receive press and he was going to be a tough guy and read his name in the newspaper.”

In the wake of a young man’s suicide, these are heavy condemnations, the weight of which should not all fall on one prosecutor, however fervid or objectionable his actions may have been. Heymann’s treatment of Swartz — including the insistence that in any plea deal Swartz would have to face jail time — arises from a context in which federal prosecutions regularly contour without obstruction into the persecution of activists and dissenters. And the conditions for this pattern are provided by a legal system in which the concentration of power is uniquely placed in the hands of prosecutors.

Rep. Darrell Issa, chair of the House Oversight Committee, announced Tuesday that he had an investigator looking into the handling of Swartz’s case. Rep. Zoe Lofgren took to Reddit, the online platform Swartz helped found, to propose legislation, “Aaron’s law,” which aims to stop the government bringing disproportionate charges in cases like Swartz’s under the Computer Fraud and Abuse Act. However, the structural problems plaguing federal justice go far beyond Swartz’s prosecutors and cyber crime law.

Concentration of power

“When one considers the fact that more than 95 percent of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers,” wrote American University law professor Angela Davis last year. The introduction in recent years of minimum mandatory trial sentencing has provided prosecutors increasing leverage with which to extract guilty pleas — fear of losing a trial on charges with hefty mandatory sentences puts defendants squarely in the thrall of prosecutors.

This proved particularly problematic for Swartz who, as Henry Blodget at Business Insider put it, “had the bad luck to run into a prosecutor who was very passionate about defending the lines that Swartz appears to have crossed.” It is a troubling state of affairs indeed if the vagarious interests of one federal prosecutor, acting outside of public view, can determine so much about an individual’s future. A number of other recent cases illustrate how much difference the particular desires of given U.S. attorneys can make. For example, the four U.S. attorneys in California acted to shut down hundreds of medical marijuana dispensaries (despite the state deeming them legal) and bringing substantial federal charges against a handful of dispensary owners who had been following state law.

Compounding the problem of prosecutorial power is a profound lack of transparency. As Davis noted, “charging and plea bargaining decisions are made behind closed doors, and prosecutors are not required to justify or explain these decisions to anyone.”

Black boxes

Federal prosecutors, appointed by the president and thus not accountable to an electorate, decide what, who and how to prosecute through some of the blackest boxes in our judicial system — grand juries. As I wrote in Truth-Out last year, “Ironically, the purported purpose of a federal grand jury is to act as ‘a safeguard to the accused from the improper motivations of government’ – to protect the accused from prosecutorial overreach.” However, as Will Potter, author of “Green Is the New Red,” who has long covered the state persecution of environmental activists, has noted, these closed-door procedures brought by a U.S. attorney “have been used historically against social movements as tools of fishing expeditions, and they’re used to seek out information about people’s politics and their political associations.”

Last year I wrote in Salon about the anarchists in the Pacific Northwest incarcerated without any criminal charges for their refusal to speak to a federal grand jury when subpoenaed. As I noted, grand juries are “rare instances in which an individual loses the right to remain silent. As was the case with the Northwest grand juries resistors, the grand jury can grant a subpoenaed individual personal immunity; Fifth Amendment rights against self-incrimination are therefore protected, but silence is not. In these instances, refusal to speak can be considered civil contempt. Non-cooperators can be jailed for the 18-month length of the grand jury.” In the past year, four individuals who resisted cooperating with the Northwest grand jury have been put behind bars.

As such, federal prosecutors coerce activists into giving up information, while the subpoenaed parties are told nothing about who the subject or subjects of a grand jury investigation might be, or how information gleaned through grand jury hearings might be used. Individuals who refuse to cooperate with this system risk substantial jail time. Again, the federal prosecutors have all the leverage; resistance takes great strength and formidable support networks.

Swartz’s defense attorney told the Huffington Post that Assistant U.S. Attorney Heymann “had harassed several of Swartz’s friends into testifying before a grand jury.” As one anarchist who refused to cooperate with a New York grand jury in 2009 told me, when a group of friends or broader network are targeted with grand jury subpoenas, fear, distrust and despair spread fast, not least because of the secrecy shrouding procedures. And this atmosphere of intimidation is created long before charges are even brought.

Property, life, liberty

Writing in Rolling Stone last May, Rick Perlstein highlighted a disturbing pattern in which federal authorities devote disproportionately more attention to targeting activists, anarchists and Muslims than they do other groups such as white supremacist militias. “The State is singling out ideological enemies,” wrote Perlstein, noting how FBI sting operations regularly focused on entrapping activists and anarchists (like the eight Cleveland anarchists last year who were “unable to terrorize their way out of a paper bag” but were guided into a bomb plot by an undercover agent) rather than racist far-right militias deemed currently to be the greatest homegrown terror threat.

Swartz, as I’ve noted, was no anarchist. But his brand of activism — including the sharing of academic articles — fell within the purview of behaviors deemed threatening to the government. Critics of the Massachusetts U.S. attorney who have stressed that Swartz’s alleged crimes had no victims forget that the government has a strong history in doling out harsh punishments when property — intellectual or material — is involved. In all their years of activism, particularly concentrated in the 1990s, the Animal Liberation Front and the Earth Liberation Front never injured one human or animal and took pains to ensure this was the case. Nonetheless, acts of property damage alone led then-FBI director Robert Mueller in 2006 to call these environmental activists one of the agency’s “highest domestic terrorism priorities.” The recent revelation of extensive FBI surveillance of Occupy activity aligns with this pattern.

A petition on the White House website for President Obama to remove Massachusetts U.S. Attorney Carmen Ortiz (Heymann’s superior) over her office’s treatment of Swartz has garnered more than 29,000 online signatures — 25,000 are needed to require a response from the administration. The desire for retribution over the witch hunt directed at a thoughtful, brilliant, passionate young man is understandable. Whether Ortiz, Heymann and others involved deserve punishment or removal is one thing — perhaps they do. But even if they are ousted, our federal justice system will remain structured around prosecutorial control, secrecy and a troubling ideological bent against the ideas for which Swartz fought.

Original report here

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Wednesday, January 16, 2013

Last charge dismissed in wrongful conviction

WAUKEGAN, Ill. — Prosecutors in Lake County have dismissed the remaining charge against a Chicago man who spent 20 years in prison before DNA evidence pointed to someone else.

Lake County State's Attorney Mike Nerheim on Monday agreed to drop the aggravated battery charge against Bennie Starks.

“Mentally, it’s a huge burden that has been lifted, to be vindicated [and] for his innocence to be acknowledged,” said Vanessa Potkin, Senior Staff Attorney with the Yeshiva University Innocence Project. The group has been working on Starks’ case since the 1990s.

Starks was convicted in 1986 of raping a 68-year-old Waukegan woman. He's been free on bond since 2006 when an appeals court ordered a new trial after DNA testing pointed away from him. Starks was also convicted of a battery charge in the same 1986 attack.

The rape charge was dismissed last year after an appeals court ruling.

Original report here

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Tuesday, January 15, 2013

It’s time for Missouri to end policing for profit

Some Missouri schools lack effective air conditioning.

Some Missouri school children shiver at their desks because the budget is tight.

Some Missouri schools share textbooks.

All Missouri schools could use a little more help in their funding: a few new books, a roof repair, another teacher or afterschool activity to help keep kids in school and away from drugs.

Many police cars in Missouri never shut off. They happily burn precious gasoline for hours on end while the officers sitting in them blast the air conditioning or heat. The officers are comfortable, sporting new equipment purchased from the Feds with asset forfeiture funds for pennies on the dollar.

Other Missouri cops dig into fine dining and give each other awards, celebrating the money confiscated through asset forfeiture, money that has largely been returned to department to purchase toys, dinners, awards and serve as a general slush fund. These funds have been misused by law enforcement across the nation. But in Missouri, it is supposed to be different.

In Missouri, the police aren’t supposed to steal from the schoolchildren.

Yet they do.

Columbia, Mo., Chief of Police Ken “Pennies” Burton made regional and national news for describing federal asset forfeiture returns as “pennies from heaven.” Burton recently received permission from the Columbia City Council to spend asset forfeiture money to purchase wearable cameras for his officers.

But Burton’s “pennies” come with a price.

Some assets are confiscated from people who have not been convicted a crime. Those people experience strong-arm robbery at the hands of street gang. There is little to no difference between having your property stolen by criminal and having your property stolen by a cop. The only difference is recourse. If a criminal steals your stuff, you can call a cop.

But when a cop steals your stuff, attempting to stop him is a crime that will result in years as a guest of the Missouri Department of Corrections, which leaves the victim only two choices: hire an attorney or bend over and take it. Hiring an attorney to reclaim your property is pointless – except when there are significant sums involved. It is an expensive long process with the deck stacked against you.

The process is simple. If the cops find a significant amount of property they want to keep, they call in the DEA or other federal agency. The feds seize the property and return a large percentage back to the department. It is just like the old mafia business: Vito brought his idea to the Don. The Don blessed it and Vito kicked a share up to the Don.

If there is a smaller amount, the local law enforcement may simply confiscate it and send it over to the prosecuting attorney for forfeiture. Once the property is forfeited in this manner, 100% of the proceeds are transferred to Missouri schools.

Missouri law requires forfeited funds to benefit the schools.

So, when the police want to throw a party, buy some swag, or give each other awards, they bring in a fed and circumvent Missouri law.

This essentially means that the local and state police departments decided that they are above Missouri law and they should make a profit from their policing. And they do.

Millions of dollars funnel into Missouri law enforcement coffers through this system – Millions of dollars that should be spent teaching our youth.

In Columbia, the city council questioned the distribution of funds. They still approve the theft of money from Missouri schools, but at least they started questioning.

It is an old maxim among detectives and reporters: follow the money. When you find out who profits, you find out who had motive for the crime. It is time to end policing for profit.

Original report here

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Monday, January 14, 2013

Convicted murderer protests his innocence over girlfriend's death in online clip

A convicted murderer has protested his innocence in an unprecedented YouTube video filmed behind bars. Luke Mitchell, 24, is serving a life sentence in a Scottish prison for the brutal murder of his teenage girlfriend Jodi Jones.

But now, in a landmark move, prison authorities have given permission for footage shot in jail to be made public.

Mitchell - who is serving a life sentence for the killing of Jodi Jones who was found dead near her home in Easthouse, Dalkeith, Midlothian, in June 2003 - has always being involved in her murder

The dramatic video clip - which is today being broadcast on the internet - shows Mitchell denying his involvement in Jodi’s murder while wired up to a lie detector machine.

The extraordinary move is believed to be the first time a convicted criminal has ever been seen taking - and passing - a polygraph test while in prison.

Mitchell, who has consistently denied killing 14-year-old Jodi, hopes that releasing the clip onto the internet will persuade the public that he is the victim of a miscarriage of justice.

At the end of last week, he told his mother: 'I want the world to see that I actually went through this process and it backed what I have always said - that I didn’t kill Jodi.'

As revealed in the Scottish Mail on Sunday, Mitchell passed a lie detector test carried out by an independent expert in a prison visiting room last April. As is normal practice, the test was filmed.

Campaigners backing Mitchell applied to the Scottish Prison Service (SPS) to use the footage to help clear his name. Permission from the SPS was required because the clip was filmed within prison grounds.

And last week the governor of Shotts Prison, the top-security jail where Mitchell is being held, gave the go-ahead.

The footage shows Mitchell dressed in a standard prison-issue blue tee-shirt being asked a series of questions - including three key questions related directly to the murder.

Mitchell, jailed for a minimum of 20 years in January 2005, was shown to be telling the truth when he denied being involved.

The convicted killer was interviewed by experienced polygraph examiner Terry Mullins, secretary of the British Polygraph Association, who has carried out a string of lie tests in English prisons although the examination of Mitchell has been his only work in a jail north of the border.

The release of the video is the first time footage of one of his prison tests has been shown publicly.

Mitchell’s mother Corinne said her son was delighted that the public can now watch him passing the test.

Mrs Mitchell, 53, who visited him on Thursday, said: 'He says he has never had anything to hide so he didn’t hesitate when he had the chance to take it. In fact, he had asked for a polygraph since day one.

'Luke told me he believes the test is a crucial indication of his innocence to go along with other issues, such as the lack of forensic evidence linking him to the crime.'

Mrs Mitchell has also passed a lie test, backing her claim that she was with the convicted killer at their home at the time of the murder.

During his polygraph examination, the camera focuses on Mitchell, who tries to remain still throughout as any movement can affect the monitoring process. On the advice of the examiner, he keeps his eyes closed throughout.

Mr Mullins is heard putting a series of questions to Mitchell three times, changing the order on each occasion.

Answering the three questions directly relating to the murder, Mitchell clearly says “No” when asked: “Were you present when Jodi was stabbed?”

In answer to the question: 'Did you stab Jodi on June 30, 2003?', Mitchell responds: 'No' in a strong voice.

He speaks more quietly as he repeats: 'No' when asked: 'Did you know for certain where Jodi’s body would be found?'

The question was asked in light of evidence in court that Mitchell led searchers to Jodi’s body because he knew where it was. He has always claimed his dog alerted him to the gruesome discovery.

After the tests were carried out last year, Mr Mullins concluded that Mitchell had been telling the truth.

He said: ‘I’m certain of the test result. It’s absolute. I can’t believe Luke Mitchell was convicted on the evidence that was available.’

He said Mitchell appeared confident but slightly nervous as he arrived to undertake the test process, which took nearly two-and-a-half hours.

Mr Mullins explained: ‘Most people are nervous because of the unfamiliar technology rather than the fear of failing.

'I spoke to him at length about what happened on the day of the murder, from before leaving school, and up to the next day.

'He got very upset when he began recalling the moment when he found Jodi’s body. During the test I asked him to close his eyes so he could concentrate and not be distracted by the prison officers who were observing through the glass walls of the meeting room. 'At the end I asked him how he thought he’d got on. He confidently said: “I’ve passed”. He was right.’

Mitchell was just 14 when Jodi was brutally murdered near their homes in Midlothian after she had gone out to meet him. He was 16 when he was found guilty after a marathon trial that culminated in 2005.

Jodi was found behind a wall beside a lonely path near her home in Easthouses. She had suffered a slashed throat and post-mortem cuts to her eyelids, right cheek, left breast, abdomen and right forearm. There was also a penetrating wound to her mouth and her hands had been tied.

Mitchell has always insisted he wasn’t guilty of the horrific slaying but failed to have his conviction quashed on appeal.

His case is currently being examined by the Scottish Criminal Cases Review Commission, which investigates potential miscarriages of justice and can recommend a fresh appeal.

Polygraph tests are inadmissible in Scottish courts but the report on Mitchell’s test was included in his submission to the SCCRC.

Criminologist Dr Sandra Lean, who has spearheaded the campaign to free Mitchell along with his mother, said the lie test provided important evidence.

'The polygraph result in Luke’s case reinforces what the other evidence has been telling us all along – there is not a scrap of evidence that Luke Mitchell murdered Jodi Jones,' she insisted.

She criticised Mitchell’s prosecution, insisting: 'The case against him was "purely circumstantial" – bits and pieces cobbled together to try to make a justifiable case.

'Yet the real evidence shows the prosecution case to be untenable,' she claimed.

A Scottish Prison Service spokesman confirmed: 'The SPS had no objection to the release of the footage, with the consent of Mr Mitchell.'

Original report here

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