Monthly Archives: July 2009

UPDATE: Registered Sex Offenders Will Be Moved From Under Miami’s Julia Tuttle Bridge

Posted on July 28, 2009 | Leave a comment

I saw this on the Crime Report the other day:

Facing growing criticism over 70 registered sex offenders living in squalid conditions under a bridge, Miami-Dade officials and homeless advocates say they are working to relocate them to housing, the Miami Herald reports. In the first step, eight camp dwellers will be moved to a private apartment building in coming days, and officials are looking for a bigger place for the remaining people to be housed, said Ronald Book of Miami-Dade’s Homeless Trust, who is leading the effort.

Some of those living under the bridge are skeptical of Book’s latest plan. Homer Barkley, 45, said he would be worried if he lived under the same roof as other sex offenders. “I have done my time for what they said I did. Now I want the chance to lead a normal life,” Barkley said. The encampment primarily houses registered sex offenders, mostly men, who cannot find residences elsewhere. That’s because a host of county and city laws prohibit them from living within 2,500 feet of where children congregate — including schools, parks and day care facilities. “It’s a public safety issue,” said Miami-Dade State Attorney Katherine Fernández Rundle. “They are living in inhumane conditions. It’s not safe for them — and it’s not safe for others.”

The next step would be to re-consider the wisdom of a policy of isolating so-called sex offenders.  I don’t think that does anything to re-integrate them into society.  And, as evidenced by the recent debacle in Miami, it doesn’t make the community safer either.  The only thing such policies really do is alienate those who have already reached their threshold of unjust treatment.  Which, in turn, manifests itself in more anti-social behavior.

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Posted in Bad Politics, Civil Rights, Criminal Law

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Odds and Ends: Representing the Invisible Man

Posted on July 28, 2009 | Leave a comment

The Times had two interesting profiles the other week that are worth reading.  One is on Lloyd Gaines, a litigant in a Supreme Court case that was a precursor to Brown v. Board of Education.  Here is how it begins:

Lloyd Gaines was moody that winter of 1939, acting not at all like a man who had just triumphed in one of the biggest Supreme Court cases in decades. And oddly, even though it was raining and the sidewalks of Chicago were clogged with slush, he felt a need to buy postage stamps one night.

Or so he told a friend just before he left his apartment house on March 19, 1939, never to be seen again. Had he not vanished at 28, Lloyd Gaines might be in the pantheon of civil rights history with the Rev. Dr. Martin Luther King Jr., Thurgood Marshall and other giants whose names will be invoked at the centennial convention of the National Association for the Advancement of Colored People, which started this weekend in Manhattan.

Instead, Mr. Gaines has been consigned to one of history’s side rooms, his name recalled mainly by legal scholars and relatives, like Tracy Berry, an assistant United States attorney in St. Louis whose grandmother was Mr. Gaines’s sister.

“He was taken away and more than likely killed,” Ms. Berry said when asked to speculate on his fate. She said Mr. Gaines was known in family lore as “a caring, loving brother and son” who would not have chosen to disappear or commit suicide, despite the pressure he was under.

The full story can be read here.

The other profile deals with Ramon J. Jimenez, an attorney in the Bronx who like Sonia Sotomayor is of Puerto Rican descent and a graduate of Harvard Law School.  Instead of going the route of prosecutor, Big Law attorney, and federal judge, however, Mr Jimenez returned to his working class roots, setting up shop in the Bronx as a solo practitioner.  The articles has this description:

For more than 30 years, Mr. Jimenez has been a South Bronx litigator and agitator, representing low-income families, injured workers, community groups and others in the poorest Congressional district in the country. Many of the cases he takes on pro bono. In recent years, he has earned about $40,000 a year.

Mr. Jimenez has been an outspoken critic of Bronx Democratic political leaders. He has sued the city, federal housing officials, landlords and labor leaders. On Tuesday, as Judge Sotomayor answered questions from senators about her “wise Latina” comment, the right to bear arms and the 14th Amendment, Mr. Jimenez was preparing for a meeting later in the evening with black and Latino workers at Woodlawn Cemetery who say they are being discriminated against.

The full profile on Mr. Jimenez can be found here.

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Posted in Civil Rights, Social Justice, U.S. News

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Thoughts on the Gates Arrest Courtesy of the Underdog

Posted on July 24, 2009 | Leave a comment

By now the episode involving famed Harvard professor “Skip” Gates has probably been picked apart from every perspective imaginable.  As a result, I don’t think I have much to add to what has also been said.  However, I did come across this blog post over at Underdog, which I thought was worth sharing with everyone:

Professor Henry Louis Gates, Jr’s story shines the light on police practices that too often are business as usual operating too often in the shadows. Here are some of my thoughts on his conflict with the police;

- Too many police will arrest for disorderly conduct when people exercise their First Amendment right to complain about those holding governmental power.

- From 1981 to 1985, during college, I lived two miles from Harvard. Overt racism at the time, and probably to this day, was all too common in the Boston area, but not only in that part of the United States.

- What was arresting Sergeant James Crowley’s exposure to racism, anti-racism, and the beauty of a rainbow society? Do police get trained in anti-racism?

- How much was Sgt. Crowley racially motivated? He should have left by the time he saw identification showing Gates lived there. There certainly should not have been any inquiry by police into Gates’s profession, as if possibly to question how a black man could afford to live in such a house in such a nice neighborhood.

- Being a sergeant, Crowley was no rookie. How could he not have recognized the firestorm that would result from persisting with questioning of Professor Gates?

- When race is not a factor, how often do cops still abuse their power out of belief that certain suspects have more privilege than the cops or out of belief that suspects are copping a superior attitude or not kowtowing to the cops?

- Rampant police abuse will continue until we shrink the criminal justice system. I repeat again that we can shrink and radically improve the criminal justice system by legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentencing, eliminating per se BAC guilty rules in DWI cases, and ending the death penalty.

- I would have advised Professor Gates and all other suspects not to open the door of their homes to the police without a warrant.

- Gates’s lawyer says the cop did not give his name. If so, is this akin or not to the cop telling me on a traffic stop that I would receive his name in due time? Are some cops taught to delay giving their name as an effort to control by being questioners rather than being answerers?

- The police role should not be to control everyone in their line of sight and beyond. Police are in many ways a necessary evil, interfering with achieving a truly free society.

- There is possibly a chicken-and-the-egg question about the likelihood that police will respect civilians the more civilians treat them compassionately, and vice versa. Are cops trained that way?

- We live in too much of a police state for police and prosecutorial abuse to end before we shrink the criminal justice system.

White- How will we achieve a more humane policing system when even three of twenty-five lawyers at my first law firm unashamedly spoke at various times of the general criminal defense population as scum? I next joined the Maryland Public Defender’s Office; none of my clients have ever been scum; they are human beings deserving of compassion and the best defense.


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Posted in Civil Rights, Social Justice, U.S. News

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“Cadillac Defense” or Benz Prosecution

Posted on July 23, 2009 | Leave a comment

Yesterday, the AJC had a story on the legal defense bill of Brian Nichols, the man who wreaked havoc in downtown Atlanta after escaping from custody and killing a judge among other officials, and was ultimately sentenced to life in prison rather than death.  According to the article, the bill is upward of $3 million, and growing.  But it was the statement of Mike Mears, who is described by the AJC as “a veteran death penalty lawyer who initially oversaw payments to the defense” that has the community, including the Georgia criminal defense bar, of which I am a member, riled up.

Here is what Mears said:

“It was a Cadillac defense,” said Mears, who was director of the Georgia Public Defender Standards Council at the time. “They had a judge sitting on the bench who I would describe as a … dream judge. He was a judge who was willing to give them whatever they wanted without too many restrictions.”

I won’t go into details but the general sentiment among the criminal defense bar here was (1) shock and anger at Mears and (2) praise for Judge Fuller.  I have never practiced nor do I know Judge Fuller, so I cannot speak to the latter.  As to Mears’ comments, I can see how someone, especially those of us who spend the bulk of their professional and perhaps personal lives defending individuals like Nichols, would take exception and voice disapproval.  However, I am rather dubious of the quotation snagged and reported by the AJC, and would not be surprised if it was taken out of context (the usual charge, I know, but still, it merits an explanation).

As for the notion of a Cadillac defense being somehow detrimental to the well-being of the public and our system of justice, let me just say that anyone charged with having committed a criminal offense is entitled to a fair trial, which, in criminal defense parlance, means the vigorous defense of the client.  I can only venture to guess that many of those criticizing the cost o Nichols’ defense would demand an equally spirited defense if faced with the same predicament.  Moreover, you can bet that the prosecution won’t think twice before spending your hard-earned taxpayer dollars in trying to secure a conviction.  By sanctioning  that approach but denying the accused the same resources, which, it should be noted, already happens in perhaps the bulk of criminal matters, we only breed greater distrust of our criminal justice process, which, in turn, leads to tragedies of Nichols-ian magnitude.

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Posted in Atlanta News, Civil Rights, Criminal Law, Georgia News, Social Justice

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Souter: Can We Have a Do-Over, Please?

Posted on July 21, 2009 | Leave a comment

The Times’ Adam Liptak continues his exceptional reporting with a column today on the impact of the Supreme Court’s decision in Iqbal v. Hasty.  Here is an excerpt:

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Liptak also quotes Justice Souter dissenting from the majority’s decision in Iqbal.  What he does not mention, however, is that Souter had authored the opinion that really gave birth to this new “plausibility” standard: Bell Atlantic Corp. v. Twombly.  Whether Souter envisioned when writing Twombly that his opinion would one day be interpreted by his colleagues to impose an even stricter standard of pleading and thus make it harder for plaintiffs to have their claims heard by a jury will probably remain a mystery.  There is little doubt, however, that Souter was kicking himself in Iqbal for having had a hand in that process.

The full story can be found here.

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Posted in Civil Rights, U.S. News, U.S. Supreme Court

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Rags to Riches: Judge Allows 1st Amendment Claim by Prison Newspaper to Go Forward

Posted on July 17, 2009 | Leave a comment

This story received scant media attention.  Here is what the AP had to say:

A federal judge says a lawsuit alleging unconstitutional censorship at the Fulton County jail can go to trial.

U.S. District Court Judge Charles A. Pannell Jr. on Monday denied motions for summary judgment from both sides of the lawsuit filed in October 2007 by a monthly publication on criminal justice issues.

Prison Legal News claimed the jail had a policy prohibiting prisoners from receiving books, magazines or newspapers other than religious publications.

Pannell found the same policy unconstitutional in 2002, but when former Sheriff Myron Freeman took office in 2005 he retained it. The publication says material sent to Fulton County prisoners was rejected or destroyed. The mail policy was dropped after PLN filed suit.

I had to do a double-take when I read that the sheriff retained the policy despite its having been ruled unconstitutional.  But, then again, why should I be surprised?  Back in the day, slaves were beaten and/or tortured by their masters if they were caught reading.  Not that I’m equating slavery with incarceration.  But one has to think that similar motivations and intentions are at work here in denying prisoners access to certain publications which prison officials may deem suspicious and subversive.

The Daily Dispatch has a story on prison newspapers here.

Judge Pannell’s opinion on the Prison Legal News matter can be access by clicking the following link:

07CV2618-Prison Legal News

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Posted in Atlanta News, Civil Rights, Georgia News

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Who’s Your Daddy? Invisible Man, of course.

Posted on July 15, 2009 | 2 Comments

The AJC has an interesting and disturbing story about Frank Hatley who was ordered to serve time for failing to pay child support for a son that was not his.

Here’s how the story begins:

Frank Hatley has languished in a South Georgia jail for more than a year.

The reason? He failed to reimburse the state for all the public assistance his “son” received over the past two decades.

The problem? Hatley is not the biological father — and a special assistant state attorney general and a judge knew it but jailed Hatley anyway.

This is one of the few situations where the involvement of a lawyer actually helped.  According to the story, only after a sheriff spoke to an attorney on Mr. Hatley’s behalf, did this story come to light.  And, let’s admit it, airing the story in the court of public opinion is often if not more important than trying it in a court of law.   After all, Mr. Hatley cycled through several attorneys, some of whom actually aided him in material aspects of the case, but nevertheless failed to resolve the critical issue of why he remained in jail despite not having done anything illegal.  This story was also picked up over at Simple Justice, here.

Today, however, Mr. Hatley was finally released from jail, with the aid of his new attorney, Sarah Gerahty from the Southern Center for Human Rights.  Mr. Hatley’s sentiment post-release?

“Out of it all, I just feel like justice should be served for me in this case.  I shouldn’t have to keep being punished for a child that is not mine.”

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Posted in Atlanta News, Civil Rights, Criminal Law, Georgia News, Social Justice

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Immigrants to Gwinnett County: Deport This!

Posted on July 13, 2009 | 2 Comments
ICE-criminal-alien-deportation-graphic

The "Three Pillars" of ICE policy to ID and remove "criminal aliens" - courtesy of ICE Website

The Atlanta Journal Constitution reports that Gwinnett County officials may be unable to carry out their efforts to deport illegal immigrants from the county jail due to budget problems.  Here is an excerpt from the article:

The program, called 287(g), trains deputies to screen inmates to determine their immigration status. Inmates who are in the country illegally are turned over to Immigration and Customs Enforcement for deportation.

The Sheriff’s Department estimates 18 deputies will be needed to staff the program. It was unclear Monday whether the county can afford to bankroll that many deputies due to its current budget crunch.

Bannister said Monday he was “still very much in favor of the program.”

“I’m quite certain the funding for that program will stay,” he said.

Gwinnett is one of four counties in Georgia that participate in the so-called 287(g) program, the others being Cobb, Whitfield, and Hall counties.

The situation in Cobb is so bad (read: hostile toward immigrants) that attorneys have begun advising their clients to simply stay away from the county.

The Obama administration, represented by new Homeland Security secretary Janet Napolitano, has sought to reign in the excess of the program.  In fact, Napolitano issued new guidelines last week just for that purpose.  Read the press release here.

Gwinnett officials claim that their goal is to deport incarcerated illegal immigrants to free up jail space for other inmates.  In actuality, however, Gwinnett’s participation in the program will probably make jail conditions worse.   With officers now being given the power to expedite the deportion of illegal immigrants, is it really a stretch to imagine that they won’t be out there arresting anyone they think are eligible for deportation.  And with more arrestees, jails will become more, not less, crowded, which, in turn, will present an even greater financial strain for Gwinnett.

Again, an example that popular laws make bad policies.

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Posted in Bad Politics, Civil Rights, Criminal Law, Georgia News, Immigration Law

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Saving South Carolina’s Juvenile Justice System

Posted on July 12, 2009 | Leave a comment

A New York Times article yesterday examines the juvenile justice system in South Carolina which is facing cuts in funding due to the current fiscal crisis.

Excerpt from the story…

[W]hat South Carolina built over many years in eradicating its shameful past is being undermined by the deep economic recession. In the last year, the state has cut the financing for its juvenile justice system by one-fifth, forcing 285 layoffs and the closure of several facilities, including five group homes that focused on counseling.

And South Carolina is not the only state whose attempts at rehabilitative justice may be stymied by the fiscal chopping block.  Reports the Times:

Across the country, depleted coffers have prompted state and local officials to pare programs intended as alternatives to the mere incarceration of juvenile lawbreakers.

In Tennessee, state legislators voted last month to close a wilderness activity camp. In Louisiana, a boot camp aimed at deterring young people from crime has been shut down. In California, alternative facilities focused on counseling are threatened from San Jose to Sacramento.

For South Carolina, cuts are particularly unsettling given its history. For a dozen years ending in 2003, a federal judge supervised the department under the settlement of a class-action lawsuit arising from overcrowded prison conditions.

Since then, the system has stopped treating youthful offenders as hardened convicts, instead confronting them as social problems through new programs that attack the underlying causes of juvenile crime — like dysfunctional homes, drug abuse and difficulties in school.

So who is to blame for what will probably be the disastrous short-changing of South Carolina’s troubled youth?  The obvious answer is the current recession or quasi-depression.  But, surely, the crisis started somewhere; it’s not a headless beast that descended from the sky on some random afternoon.  To be sure, numerous causes have  been cited as the culprits, ranging from 9/11 to sub-prime mortgages to GM’s recent demise.  Most of these problems, I venture to guess, started at the top – that is, in some board room, committee hearing, etc. – which, unsurprisingly solicits little if any input from those at the bottom – in our case, the troubled youth who must now contend with a underfunded juvenile justice system.

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Posted in Civil Rights, Social Justice, U.S. News

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Bridge Over Troubled Laws

Posted on July 10, 2009 | 1 Comment
Photo courtesy of Nanaimo Daily News (Carlos Barria)

Photo courtesy of Nanaimo Daily News (Carlos Barria)

News sources are reporting on a lawsuit filed in Miami by the ACLU challenging a county ordinance that prevents convicted sex offenders from living within 2,500 feet of where children congregate.  The Miami Herald has the story here, the N.Y. Times, here.

An excerpt from the Miami-Herald…

A multipronged legal battle erupted Thursday over the growing colony of sex offenders forced to live under the Julia Tuttle Causeway.

The American Civil Liberties Union of Florida sued Miami-Dade County, arguing that the state’s rule that sex offenders must live at least 1,000 feet from where children congregate supersedes the county’s stricter 2,500-foot ordinance.

Then the city of Miami prepared to sue the state for placing the offenders — whose legal addresses are under the causeway — too close to a barrier island that it considers a park.

Though no one has proposed a solution, the ACLU and the city say they simply want to clean up the shantytown that is spilling out from under the bridge, and find those living there a respectable and safe place to live. Under the 2,500-foot law, convicted sex offenders have no other place to live in the county that does not violate the rule.

The vagrants — many of them homeless felons — live in shacks in a no-man’s land that has generated national debate over the consequences of residency laws for sex offenders.

The consensus among those in power is that there is a problem but no one can agree on a solution.  Reports the N.Y. Times…

John Timoney, the Miami police chief, said that on the Fourth of July, several officers used a stun gun against a man under the bridge who, in a fit of depression, began cutting himself with a knife, apparently in a suicide attempt. Chief Timoney predicted more violence.

He said he had told city, state and county officials that the men (only one or two women live there) needed to be moved to more permanent homes, even if it meant changing one or more laws. He has gotten mostly studies in return, along with politicians accusing one another of shirking responsibility.

“It’s like a hot potato,” Chief Timoney said. “Everyone is just passing it on.”

This is perhaps another example of how popular laws make bad laws.  The Times picked up a great quote from a law professor who studies sex offender laws, saying how  residency restrictions which have led to the current crisis “are always universally popular.  The public loves it.”

And now the public is paying the price for its paranoiac love-fest.

As a side note, I have to disagree with the comment made by a Miami City commissioner, as reported in the Herald, that the governor of New York would be “impeached the next day” if he ordered all sex offenders to be placed under the Brooklyn Bridge.  First, with the chaos in Albany at the moment, I doubt anyone would notice.  Second, given the ineptitude of David Patterson thus far in his term as governor, he might get a standing ovation just for having done something.

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Posted in Bad Politics, Criminal Law, U.S. News

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