Criminal Justice – Page 8

The #MeToo Dilemma

This is a hard post to write, because I want to be clear about what I am–and am not–saying.

When the #MeToo movement emerged, I applauded. Like most women, I’d encountered unwanted “approaches” from men ranging from boorish to significantly worse; like most of the women I know, I get livid when complaints about sexual assaults are dismissed with “well, what was she wearing?” or other responses blaming the victim or suggesting that the woman was somehow “asking for it.”

When #MeToo accountability began, I was saddened to learn about Bill Cosby, but the number of accusations made it plain that he wasn’t the person he portrayed on TV. And while it doesn’t speak well for my surrender to schadenfreude, I was actually thrilled with the verdict against Harvey Weinstein.

Holding predators–not their victims– responsible is long overdue.

But. (You knew there was a “but” coming…)

Taking women seriously is not the same thing as uncritically believing anything and everything any woman says. An accusation of impropriety or assault should be considered a rebuttable presumption–true, until and unless there is probative evidence to the contrary.

In criminal law class in law school, we learn that rape is both the most under-reported and most over-reported crime. Under-reported because victims were reluctant to come forward for all of the reasons that have been highlighted by the #MeToo movement–over-reported because there were also unfair and untrue accusations leveled, sometimes intentionally, sometimes by emotionally unwell persons.

The biggest problem is determining the facts in these situations, because that they are inevitably “he said/she said.”

Lawyers who specialize in prosecuting sexual assault charges must evaluate whether evidence and testimony are consistent with the accuracy of an accusation. And that brings me to a comprehensive review of the complaint lodged against Joe Biden by Tara Reade, a former staffer, recently written by one such prosecutor.

I really urge you to click through and read the entire column.

The alleged assault occurred in 1993. As the prosecutor notes, the 27-year delay itself is not reason to disbelieve her. But the story she tells has changed significantly since she first came forward.

As a lawyer and victims’ rights advocate, Reade was better equipped than most to appreciate that dramatic changes in sexual assault allegations severely undercut an accuser’s credibility — especially when the change is from an uncomfortable shoulder touch to vaginal penetration.

Reade said she complained at the time to Biden’s executive assistant, and to two top aides– all three adamantly deny that she ever approached them. (They didn’t simply have “no recollection.” They strongly refuted the claim). She also says she filed a written complaint with the Senate personnel office, but reporters could not find any record of such a complaint there, and when the Times asked her for a copy, she said she didn’t have it. Yet she had kept and provided a copy of her 1993 Senate employment records.

She has told wildly inconsistent stories about why she left Biden’s employ, and in the years following her stint on his staff, she has been highly complimentary of him. Evidently, it wasn’t until she had become a fervid Sanders supporter that the accusation of assault changed from “rubbed her shoulders” to digital penetration.

There’s much, much more detail in the linked article, and most of it suggests someone emotionally unstable rather than intentionally vindictive–but none of it enhances her credibility. Quite the contrary.

And as the writer notes, most men who assault women are serial abusers.

Last year, several women claimed that Biden made them uncomfortable with things like a shoulder touch or a hug… The Times and Post found no allegation of sexual assault against Biden except Reade’s.

It is possible that in his 77 years, Biden committed one sexual assault and it was against Reade. But in my experience, men who commit a sexual assault are accused more than once … like Donald Trump, who has had more than a dozen allegations of sexual assault leveled against him and who was recorded bragging about grabbing women’s genitalia.

I particularly agree with the final paragraph.

We can support the #MeToo movement and not support allegations of sexual assault that do not ring true. If these two positions cannot coexist, the movement is no more than a hit squad. That’s not how I see the #MeToo movement. It’s too important, for too many victims of sexual assault and their allies, to be no more than that.

Agreed.

The #MeToo movement was a major step forward for all women, especially but not exclusively those who have been victims of sexual assaults. If it is perceived as an indiscriminate anti-male crusade rather than a pro-justice remedial effort– if it is bullied into becoming a chorus that will automatically defend all accusations irrespective of their credibility– it will lose the hard-won and very important legitimacy that makes it effective.

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How Do We Spell Corruption? T-R-U-M-P

Well, I suppose the headline really should read “Trump Administration,” since Trump has managed to assemble a group of people who are both magnificently inept and thoroughly dishonest.

It’s something every day–usually, thanks to the Coronavirus pandemic, buried under the propaganda and disinformation being spewed every day by the buffoon-in-chief.

NBC recently reported on a story first broken by Pro Publica.

On a Tuesday just before Halloween in 2018, a group of federal prosecutors and agents from Texas arrived in Washington. For almost two years, they’d been investigating the opioid dispensing practices of Walmart, the largest company in the world. They had amassed what they viewed as highly damning evidence only to face a major obstacle: top Trump appointees at the Department of Justice.

The opioid crisis was the most pressing public health issue facing the country before the arrival of the current pandemic. What the investigators had uncovered was proof of clearly criminal activity by Walmart–activity that played a significant part in creating and sustaining that crisis.

Opioids dispensed by Walmart pharmacies in Texas had killed customers who had overdosed. The pharmacists who dispensed those opioids had told the company they didn’t want to fill the prescriptions because they were coming from doctors who were running pill mills. They pleaded for help and guidance from Walmart’s corporate office.

Investigators had obtained records of similar cries for help from Walmart pharmacists all over the country: from Maine, North Carolina, Kansas and Washington, and other states. They reported hundreds of thousands of suspicious or inappropriate opioid prescriptions. One Walmart employee warned about a Florida doctor who had a “list of patients from Kentucky that have been visiting pharmacies in all of central Wisconsin recently.” That doctor had sent patients to Walmarts in more than 30 other states.

How did “corporate” respond? By repeatedly forbidding pharmacists from cutting off any doctor. Pharmacists were told to “evaluate each prescription on an individual basis.” One opioid compliance manager even sent an executive an email (viewed by ProPublica, which confirmed its contents), that Walmart’s focus should be on “driving sales.”

The prosecutor investigating Walmart’s behavior prepared to indict the corporation for violating the Controlled Substances Act. She had the support of her boss, who also believed the evidence justified what would have been an unprecedented step.(Fortune 500 companies don’t get indicted–gee, I wonder why…)

Before the Texas prosecutors could file their case, however, Walmart escalated concerns to high-ranking officials at the DOJ, who then intervened. Brown was ordered to stand down. On Aug. 31, 2018, Trump officials officially informed Walmart that the DOJ would decline to prosecute the company, according to a letter from Walmart’s lawyer that lays out the chronology of the case.

The Texas prosecutors appealed to higher-ups at DOJ, pointing out that dispensing opioids without a legitimate medical purpose is legally indistinguishable from dealing heroin.

Criminal law says if a person or entity is willfully blind or deliberately ignorant, they are as liable as if they had acted intentionally. Once Walmart’s headquarters knew its pharmacists were raising alarms about suspicious prescriptions, but the compliance department continued to allow — even push — them to fill them, well, that made the company guilty, the Texas prosecutors contended.

This wasn’t a situation where a few employees “went rogue.” Worse, the company was a repeat offender; seven years earlier, Walmart entered into a settlement with the DEA in which it promised to improve its controls over the abuse of opioid prescriptions.

The DOJ didn’t budge, so prosecutors tried another tactic: criminal charges against individual employees. Trump officials blocked that, too. Then prosecutors tried to bring a civil case, and Trump officials blocked that.

The lengthy story at the link is detailed enough to dispel any doubts about how thoroughly this administration has corrupted the DOJ.

The news of the Walmart investigation comes at a time when the Trump administration is being assailed for legal favoritism and cronyism. Attorney General Bill Barr has inserted himself into multiple investigations of Trump friends and associates. In February, four prosecutors on the case of Roger Stone, a Trump friend and adviser, quit the case in protest after political appointees undercut their sentencing recommendation.

The Trump DOJ has also pulled back on white-collar and corporate investigations and prosecutions. White-collar prosecutions are at a record low. Walmart itself seems to have already benefited from the Trump administration’s approach to corporate misconduct. The company was the subject of a seven-year investigation into bribery allegations in Mexico and around the globe. The Obama administration sought $600 million in fines, according to The New York Times, which broke the story, but failed to reach a resolution with the company. The Trump DOJ settled the charges for $282 million in June 2019.

It certainly pays to have low friends in high places…..

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Lies, Damned Lies and Sanctuary Cities

A week or so ago, a commenter to this blog asked for an explanation of Sanctuary Cities and States. The question was understandable, because the Trump Administration–beginning back when Jeff Sessions was Attorney General– has consistently misrepresented the issues involved.

Anti-immigration activists and apologists for the administration insist that “sanctuary” cities and states are places where the rule of law has been suspended — places where evil Democratic-controlled governments have formed alliances with “open borders radicals” (as Sessions once put it) to prevent Immigration and Customs Enforcement (ICE) agents from arresting unauthorized immigrants even when they’ve been convicted of crimes.

Back when Sessions was threatening to withhold federal grants from cities and states that dared to declare themselves Sanctuaries, Vox did one of its “explainer” columns, in an effort to dispel misunderstandings on both sides of the political divide with what it termed “the wonky truth.”

The federal government has spent the past 20 years using local government (especially law enforcement) as a force multiplier to help it find, arrest, and deport immigrants more efficiently — and for almost as long, progressives have been trying to reassert local autonomy. At this point, the line between “obstructing” federal law enforcement and simply deciding not to help isn’t as clear as one might expect.

In the courtroom, the fight over sanctuary cities is narrow and technical. Outside the courtroom, it’s a culture war.

One of the problems is that–as the article points out–“Sanctuary city” is not an official government term. In fact, it has no legal meaning.

Lots of people use the unofficial term “sanctuary city” to refer to local jurisdictions (not just cities but counties and sometimes states) that don’t fully cooperate with federal efforts to find and deport unauthorized immigrants. If that sounds vague, that’s because it is, and it gets at the tension between federal policy and local law enforcement generally used to carry out those laws.

One reason for the confusion is that local police departments aren’t legally required to assist the federal government with just any policy the federal government might want to enforce. In 1997, in Printz v. United States, the Supreme Court confirmed that the federal government “may neither issue directives requiring the States to address particular problems, nor command the State’s officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”

Immigration law is federal law. Not only is immigration enforcement not a local law enforcement priority–as the article points out, local police don’t usually get involved with the enforcement of, say, federal tax law either–most police chiefs argue that helping apprehend otherwise law-abiding immigrants is a “net negative” for local law enforcement, because it makes immigrant communities leery of police and less likely to report crimes or cooperate with investigations.

So exactly how much assistance local governments should provide in immigration enforcement is an ongoing fight. At heart, it’s been a policy fight over what local governments should do. But under the Trump administration, in particular, it’s taken on the color of law: the idea that cities are refusing to do something they’re obligated to do.

The Trump administration alleges that local ordinances or state laws that bar the sharing of information about immigrants — like California’s SB 54, which prevents jail officials from telling ICE when a prisoner will be released (in many cases) unless ICE has a warrant signed by a judge — violate the federal law. Cities and states that have passed such policies, however, argue that sharing information about when someone will be released from jail or prison is different from sharing information about their immigration status, so it’s legal for the state to put restrictions on the former.

Whatever the technical legal arguments, the real fight over sanctuary cities or states is political and cultural. As the Vox article notes, in the aftermath of Trump’s election, a number of mayors signaled their “resistance” by declaring themselves sanctuary cities. It was also a way to reassure immigrant residents that while Trump might be making them feel unwelcome in red America, they would always be welcome in America’s (almost all blue) cities.

In response, Republicans have continued to stoke fears with dishonest rhetoric about those “criminal immigrants” and blaming cities and states controlled by Democrats.

Today’s Republicans are waging war with anyone who is “other.” Meaning anyone who isn’t a white Christian native-born male. They’re just reluctant to put it that baldly, so they settle for exaggeration and confusion.

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Extortion–And Susan Collins

Well, Susan Collins was right–sorta. Trump did learn a lesson from the Impeachment whitewash that she and the other Republican Senators handed him.

The lesson? Extortion works and I can keep doing it.

Earlier this week, Trump tweeted:

I’m seeing Governor Cuomo today at The White House. He must understand that National Security far exceeds politics. New York must stop all of its unnecessary lawsuits & harrassment, start cleaning itself up, and lowering taxes. Build relationships, but don’t bring Fredo!

This, of course, is vintage Trump, displaying both his trademark ignorance of how government actually works and his mob-godfather behavior.

Letitia James, New York’s Attorney General responded to the obvious ignorance.

When you stop violating the rights and liberties of all New Yorkers, we will stand down. Until then, we have a duty and responsibility to defend the Constitution and the rule of law.

BTW, I file the lawsuits, not the Governor.

As commentators have noted, this new threat followed a more generalized version that Trump had included in his delusional, fact-free State of the Union speech. In that speech, he threatened reprisals against sanctuary cities and states (mischaracterizing, as usual, what sanctuary laws say and do–it really is amazing how impervious he has been to learning anything in the three years he’s held office).

It also followed a previous, petty retaliation against New York, described by a Daily Kos contributor:

When the Department of Homeland Security announced on Feb. 7 that residents of New York would no longer be allowed to participate in programs such as Global Entry that speed passengers through airport security, it seemed like an act of petty vengeance. But then … petty vengeance is Donald Trump’s middle name. He just spells it with a J. So the idea that Trump would make a move designed to irritate millions of New Yorkers because their state passed laws supporting immigrants seemed absolutely believable.

But as it turns out, Trump wasn’t acting out of pure retaliation. Not at all. On Thursday Trump fired off a tweet making it clear that the real purpose behind making New Yorkers go to the back of the line was extortion—to force the state into leaving his taxes, his company, and his friends alone.

After all, it worked so well in Ukraine.

For a more in-depth discussion of this latest, astonishingly brazen effort to obtain a personal quid pro quo–threatening to withhold money meant to protect the citizens of New York unless that state dropped its multiple investigations into his criminal activities–you really should visit (or revisit, if you have already seen it) this discussion on Morning Joe.

Once again, the word that comes to mind is chutzpah.

What I find so astonishing is not the criminal behavior itself–and make no mistake, it is criminal, although I’m sure that the blowback will be dismissed with Trump’s usual “it was a joke” disclaimer (this from a man who wouldn’t know humor if he encountered it)– but the chutzpah of tweeting it out for the whole world to see. All that was missing was “Nah nah nah–you can’t impeach me! I’m protected by the spineless, dishonest, unAmerican Republicans in Mitch McConnell’s Senate.”

Yes indeed, Senator Collins. He certainly learned a lesson…

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Indiana’s Supermajority–Ignoring Citizens Again

Where to start?

The Indiana Lawyer describes the issue:

Despite opposition from nearly all of the organizations and individuals who testified, a bill that would allow the attorney general to appoint a special prosecutor over certain cases that a local prosecutor declines to prosecute has advanced out of an Indiana Senate committee.

Senate Bill 436, authored by Rep. Mike Young, R-Indianapolis, passed out of the Senate Corrections and Criminal Law Committee on Tuesday with a 6-3 vote. Young, who chairs the committee, did not receive any Democratic support for his bill, and one Republican also voted against the measure.

Calling the legislation a response to “social justice prosecuting,” Young said his bill would allow the Office of the Attorney General to appoint a special prosecutor only if a local elected prosecutor “has announced as a matter of policy that the prosecuting attorney will not enforce all or part of a criminal statute enacted by the General Assembly,” or if “the attorney general has determined that a prosecuting attorney has categorically elected not to enforce all or part of a criminal statute enacted by the General Assembly.”

Mike Young’s sponsorship is the first clue that this is a terrible bill; Young has spent his considerable amount of time in Indiana’s legislature as a committed “culture warrior” and general pain in the you-know-where. The second clue comes from the fact that every single person who testified at the committee hearing opposed the measure.

Organizations ranging from the American Civil Liberties Union of Indiana to the Indiana Prosecuting Attorneys Council (IPAC) were among those testifying against SB 436.

The former director of IPAC shared the organization’s opposition to the bill’s attack on prosecutorial discretion, pointing out that voters regularly respond to prosecutorial decisions they don’t agree with by voting elected prosecutors out of office. (Every four years, voters eject around a third of Indiana’s prosecutors.) A representative of the Public Defenders Council agreed that the bill abrogated voters’ rights.

What prompted this legislative over-reach?

Much of Wednesday’s testimony focused on the recent decision by Marion County Prosecutor Ryan Mears to no longer prosecute cases of simple possession of marijuana. In announcing that decision in September — about a week before he was appointed by county Democrats to succeed former Prosecutor Terry Curry — Mears said the Marion County Prosecutor’s Office should be devoting its resources to the violent crime in Indianapolis.

Young’s bill would deny county prosecutors the discretion to direct limited resources to the most serious threats to public safety. Once again, it would substitute the judgements of state-level lawmakers for those of local officials chosen by the people they serve.

One of the measure’s most egregious insults to local control was language requiring counties in which the attorney general has overruled the local prosecutor to reimburse the attorney general for the expenses of prosecuting the case. As Doug Masson put it in his blog post on the bill,

The guest that nobody invited and nobody wanted is going to send you a bill for his presence. The AG just sends the bill to the Auditor who is required to pay the bill out of the general fund within 30 days, without appropriation. Because, screw your budget.

Despite the uniform opposition to the bill, it passed out of committee. Here is the vote breakdown:

Yeas:
Sen. Mike Young
Sen. Susan Glick
Sen. Mike Bohacek
Sen. Justin Busch
Sen. Aaron Freeman
Sen. Jack Sandlin

Nays:
Sen. Karen Tallian
Sen. Lonnie Randolph
Sen. Eric Koch

If one of the “yeas” represents you, I’d suggest a call or email letting that person know that he or she should not rely on your vote in the next election.

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