NY softens criminal discovery rules to promote openness

New York state lawmakers have passed a major overhaul of the laws that dictate what evidence must be turned over to defendants facing criminal charges, reports The Marshall Project. The new rules require that prosecutors share this evidence, known as discovery, at the earliest stages of a case. If a defendant facing felony charges is offered a plea deal, information must be shared at least three days before his deadline to accept.

The changes “take New York from being dead last in discovery openness to being in the vanguard nationally,” says Jennifer Laurin, a University of Texas law professor who studies discovery laws.

In the discovery process, prosecutors reveal the evidence they have gathered, including the names and statements of witnesses to the crime. As The Marshall Project reported in 2017 in partnership with the New York Times, the rules in New York have long been some of the most restrictive in the nation, allowing prosecutors to withhold this information until just before trial.

Because so few cases go to trial—more than 98 percent of felony arrests that end in convictions occur through a guilty plea—prosecutors were almost always allowed to withhold the information indefinitely. Critics say these “blindfold laws” put defendants at an unfair disadvantage, forcing them to negotiate plea deals and prepare for trial without knowing important evidence against them.

New York’s discovery laws have not changed substantially since 1979. Legislators have introduced reform bills more than a dozen times in the last 40 years, but the state district attorneys association has always blocked the effort, arguing that providing witness information would put witnesses in danger of intimidation, harassment or worse. The organization objects to the new rules on the same basis, but with Democrats in control of both chambers of the state legislature for the first time in a decade, the path was cleared for the measure to be part of a budget deal with Democratic Gov. Andrew Cuomo.

Legislators approved the deal on Sunday night, and the governor is expected to sign it.

The new rules, which go into effect in January 2020, eliminate the need for defense attorneys to file requests for discovery and require that a wide range of information, including grand jury testimony and police reports, be turned over automatically 15 days after an indictment. The rules also require some “reciprocal discovery,” in which the defense must turn over some evidence to the prosecution. The measure allows prosecutors to request a protective order from a judge, allowing them to withhold witness information if they have reason to think the defendant may intimidate or harass the witness.

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Confronting erosion of trust between police and communities

Community policing principles should be incorporated into every facet of U.S. law enforcement activities, from the training of raw recruits to performance measurements of serving officers, says a new study released by the Leadership Conference on Civil and Human Rights, according to The Crime Report.

The massive 416-page report, entitled “New Era of Public Safety,” which the conference described as a “starting point for communities and police departments to work together to achieve policing reform in the 21st century,” offers 100 sweeping recommendations to police agencies across the country—including some that openly contradict policy strategies of the Trump administration.

Based on consultations with leading chiefs, academics, policymakers, and police organizations, the report argues that police agencies across the U.S. must allow communities a “greater say” in their operations in order to eradicate the racial biases and warrior culture that have opened a chasm of distrust between law enforcement officers and the citizens they serve—particularly in at-risk communities—over much of the past decades.

“The pain and frustration are profound,” wrote Vanita Gupta, president and CEO of the  Leadership Conference on Civil and Human Rights, in her introduction to the report.

“It is no understatement that we are confronting serious challenges in solving the erosion of trust between police and the communities they serve.”

The emphasis on strengthening community policing comes as the White House considers eliminating the Community Oriented Policing Services Program(COPS), established in 1994 during the presidency of Bill Clinton, by folding its budget into other programs within the Justice Department’s Office of Justice Programs.

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Defendant can be compelled to enter password to cellphone

A defendant can be compelled to enter a password to his cellphone as long as prosecutors prove just one thing, Massachusetts’ top court has ruled, as reported by the ABA Journal.

Prosecutors must show beyond a reasonable doubt that the defendant knows the password, according to the Massachusetts Supreme Judicial Court. Prosecutors met that burden in the case of Dennis Jones, who was accused of sex trafficking a woman he met online, the court said. Courthouse News Service and the Boston Globe covered the March 6 decision.

The court said proof of the defendant’s knowledge of the password satisfies the “foregone conclusion” exception to the privilege against self-incrimination. The exception allows defendants to be compelled to disclose information that the government already knows.

The foregone conclusion exception originated in a Supreme Court case involving compelled production of documents in response to a government subpoena. Several federal courts have extended the exception to encrypted electronic devices, including the 11th U.S. Circuit Court of Appeals at Atlanta and the 3rd Circuit at Philadelphia.

The Massachusetts court said that a defendant forced to enter a password discloses only that they know the password and can access the device. Proof that the defendant knows the password is enough, the court reasoned.

A concurring justice, Barbara Lenk, would have gone further by requiring the government to also prove that it knows the existence of relevant, incriminating evidence it expects to find on the device.

“I think that compelled decryption of a cellular telephone or comparable device implicates more than just its passcode; what the government seeks is access to the files on the device, which the government believes will aid in inculpating the defendant,” Lenk wrote.

“The court’s decision today sounds the death knell for a constitutional protection against compelled self-incrimination in the digital age,” Lenk wrote. “After today’s decision, before the government may order an individual to provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device, all that the government must demonstrate is that the accused knows the device’s passcode.”

Despite her misgivings, Lenk concurred in the court’s judgment because prosecutors had demonstrated their knowledge of the existence and location of specific files on the phone.

The supreme judicial court had extended the foregone exclusion exception to compelled disclosure of passwords in a 2014 case involving an attorney who was accused of trying to divert mortgage payoff funds to himself through a sophisticated scheme using his computers.

The new case considered what proof is needed to qualify for the exception.

Prosecutors had argued that they have to show only proof of knowledge of the password, using a clear and convincing evidence standard. The Massachusetts Supreme Judicial Court opted for the higher reasonable doubt standard, finding that it was required by the state constitution’s protections against self-incrimination.

The standard of proof was satisfied in Jones’ case, the court said. Jones had the cellphone in his pants pocket when he was arrested; he had made statements to police characterizing the phone’s number as his number; subscriber information linked the phone to Jones; and the sex trafficking victim described Jones’ use of the phone, the court said.

“Indeed, short of a direct admission, or an observation of the defendant entering the password himself and seeing the phone unlock, it is hard to imagine more conclusive evidence of the defendant’s knowledge of the LG phone’s password,” the court said.

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GateHouse: Mueller Report has nothing to celebrate

Matthew T. Mangino

GateHouse Media

March 29, 2019

The report is in - neither the president nor anyone involved in his 2016 campaign for president “colluded” with the Russian government or any Russian organization to interfere in the election. We know this because recently appointed Attorney General William P. Barr released a four-page summary of Robert Mueller’s 300-page report.

Mueller and his team issued 2,800 subpoenas, executed 500 search warrants, obtained 230 orders of court for communication records and interviewed approximately 500 witnesses. Yet, we know little more now than we did 675 days ago when the investigation began.

While President Donald Trump and his supporters celebrate - the report summary gives America a glimpse into a sinister - and maybe successful - effort by a foreign government to influence the outcome of a national election in this country.

There is no time for gloating. The president and his campaign may not have conspired with Russia, but they may have been duped and benefited by the influence of a foreign government.

Barr disclosed in his March 24, letter to Congress that the Special Counsel outlined the “Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with those efforts.”

The alarm bells should be ringing on both sides of the aisle. If we earnestly and enthusiastically accept the four-page summary of this report as they relate to the president, we should equally accept with utter mortification that the Russians - without the help of any American - may have swayed the election.

The Attorney General’s summary suggests that there were two elements to Mueller’s investigation regarding Russian influence. First, an internet disinformation operation - fake news - by a Russian organization to “sow social discord, (and) eventually ... interfering with the election.” Second, the Russian government hacked into the Clinton Campaign and the Democratic Party and disseminated information through WikiLeaks to influence the election.

Senator Lindsey Graham wants to investigate the Obama justice department’s handling of the Clinton email investigation while the Russians hacked Clinton’s emails in order to influence the outcome of the election. Shouldn’t we expect more from our leaders than just settling an old political score? How about looking into whether the Russian government helped elect our current president?

While the president takes a “victory lap,” remember that his Attorney General thought it important to include the following quote from the Mueller Report, ”(W)hile this report does not conclude that the president committed a crime, it also does not exonerate him.”

However, Mueller deferred on the issue of obstruction of justice and the attorney general and Deputy Attorney General Rod Rosenstein ”(C)oncluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish the president committed an obstruction-of-justice offense.”

The Special Counsel’s investigation is closed. Barr acknowledged that Mueller did refer some aspects of the investigation to other offices, but there will be no more indictments from the special counsel.

The Mueller Investigation resulted in the indictment of 34 people - seven of whom have been convicted so far - including some senior members of the Trump campaign.

So what is left? A lot, there are roughly 16 separate ongoing investigations involving Trump, his associates and his businesses. Some of those investigations are headed by Trump appointees.

For instance, the U.S. Attorney’s office for the Southern District of New York is investigating the Trump inauguration committee regarding illegal foreign contribution to the committee. The U.S. Attorney’s Office for the District of Columbia is investigating the WikiLeaks’ release of hacked Clinton campaign emails.

There are also investigations by the Attorneys General of New York, New Jersey and Maryland as well as at least seven ongoing Senate and House committee investigations including the Senate Intelligence Committee and the House Foreign Affairs Committee.

Trump’s victory tour may be a bit premature, but, as with everything else - facts are seemingly unimportant in modern politics.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Two out of three Californians support LWOP over death penalty

A new poll found that Californians, by a 2-to-1 margin, support sentencing first-degree murderers to life in prison rather than the death penalty, an indication that Gov. Gavin Newsom’s recent decision to impose a moratorium on executions may align with public sentiment against capital punishment, reported the Los Angeles Times.

The poll results could potentially revive efforts to abolish the death penalty in California, including a proposed constitutional amendment being considered in the state Legislature that could land on the 2020 ballot, and embolden Newsom to take additional action against capital punishment. The Democratic governor already is considering prohibiting any new death sentences in local criminal cases.

The Public Policy Institute of California poll found that 62% of Californians, in cases of first-degree murder, favored a penalty of life imprisonment with absolutely no possibility of parole, compared with 31% who favored death sentences. Support for the death penalty in the state has steadily declined since 2000, when Californians were evenly divided on the issue, according to the institute’s polling over that time period.

“This is a case where public opinion continues to shift, and shift support away from the death penalty,” said Mark Baldassare, the institute’s president and chief executive.

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NRA is opposed to reauthorizing Violence Against Women Act

The National Rifle Association is opposing the reauthorization of the Violence Against Women Act over provisions designed to keep domestic abusers from having access to firearms, reports the Huffington Post.

The pro-gun group told HuffPost it will issue a a “key vote” alert against VAWA, which warns members of Congress that their vote on the legislation will be scored and included in their NRA rating.

According to a report by the National Journal, some Republicans reportedly wanted the NRA to take a stand so they could have political cover to vote against it. 

On March 7, a bill to reauthorize and expand VAWA, a landmark domestic violence law, was introduced in the House. The law expired in late December during the partial government shutdown, but was extended just a few more weeks after a short-term spending deal reopened the government.

On top of making improvements in services for victims of domestic and sexual violence, the reauthorization bill aims to tighten gun laws for domestic abusers.

Under federal law, individuals convicted of domestic violence offenses against their spouses or family members are already barred from owning firearms. But the law does not apply to individuals who abuse their dating partners. The VAWA reauthorization bill would fix that, closing the so-called “boyfriend loophole.”

It would also prohibit individuals convicted of misdemeanor stalking offenses ― which experts believe can be a predictor of future violence ― from owning or purchasing firearms.
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Disgraced presidential aide said prison was 'Trump country'

George Papadopoulos, who worked as an aide for President Donald Trump’s 2016 campaign, said he had “street cred” in prison during a 12-day sentence he served in connection with special counsel Robert Mueller’s investigation, reported The Huffington Post. 

Speaking to MSNBC’s Ari Melber, Papadopoulos said: 

“It was Trump country, OK? Oxford, Wisconsin, is Trump country. It’s a population of 800 people. I think the federal minimum security camp I was at was one of the major jobs that people had at Oxford, Wisconsin. Quite frankly, I was treated excellent.”

When asked if the other inmates were Trump supporters, Papadopoulos replied: “Let’s say I had some street cred, meaning that by the time I got in there...”

“George... George... George...” Melber interrupted. “What kind of street cred did you have?”

Papadopoulos claimed the other inmates considered him a fighter ― as in fighting the allegations ― and said: “That counts for street cred when you get into a place like that.” 

“I was dealing with a lot of doctors, lawyers, businessmen who were involved in similar crimes, like Paul Manafort or Michael Cohen,” Papadopoulos added, “so it wasn’t a dangerous place.”

Papadopoulos pleaded guilty in 2017 to lying to investigators about contacts with people linked to Russia. At the time, former Trump adviser Michael Caputo dismissed Papadopoulos as just “a coffee boy.” He has since turned into a critic of the Mueller probe, remained a supporter of Trump and said he has asked the president for a pardon.

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