At 6:04 last Thursday morning, just before Sanchez’ alarm was set to go off, she heard a pounding outside her second floor apartment.

[...]

Within moments, the chainsaw had cut through most of her door, and someone on the FBI’s arrest team kicked the rest of it in.

“That’s when I heard the clicking of a gun and I heard ‘FBI, get down!’, so I laid right on down.

[...]

And they said get your dog, so I got her and at the same time I am laying in her urine because she did pee on herself at the same time.”

[...]

Sanchez says they left her on the floor for 35 minutes, with her daughter screaming for her mommy in the other room.

This is sickening, and yet it is a far too commonplace type of event.  The War on Drugs is out of control—a fact made even worse by the fact that it is not even successful.

For the second time in a year, the United States Supreme Court has ruled in a case involving serious prosecutorial misconduct in the New Orleans District Attorney’s Office during the tenure of Harry Connick, Sr, who served as Orleans Parish D.A. from 1973 to 2003, taking over that position from Jim Garrison, who had made himself famous by pursuing bizarre conspiracy theories related to the assassination of President Kennedy.

In last year’s case, the Court set aside a $14 million civil verdict that had been awarded to a man who had served nearly two decades on death row after being convicted of murder due in large part to the fact that two of Connick’s subordinates had knowingly withheld evidence that would have exonerated him. As I noted at the time, this was a serious miscarriage of justice:

Thompson was denied a fair trial because the prosecutor consciously refused to turn over evidence that could have, and ultimately die, clear him of the crimes he was accused of. Because of that egregious action, he spent fourteen years of his life on Death Row. The idea that he is unable to receive damages for this action from the very office that wrongfully convicted him is really quite shocking. Prosecutors have an ethical duty that goes beyond those of normal attorneys; they are required to see that justices is administered fairly. Sometimes, that means that they’ll lose a case but, as that saying goes, it is better that a hundred guilty men go free than one innocent man go to prison.

Yesterday, the Court dealt with yet another case arising out of a conviction during the time that Connick held office, and this time it reversed the conviction of a man who had been convicted of murder in another case where crucial evidence was withheld from the defense:

The Supreme Court on Tuesday reversed the conviction of a New Orleans man, saying prosecutors there had withheld important evidence that his lawyers could have used in his defense.

The decision, by an 8-to-1 vote, was the latest in a series of Supreme Court decisions suggesting a pattern of prosecutorial misconduct in the Orleans Parish District Attorney’s Office. Justice Clarence Thomas dissented.

Tuesday’s case concerned Juan Smith, who was convicted of killing five people in 1995, when a group of men burst into a house in search of money and drugs. They ordered the occupants to lie down and opened fire.

Mr. Smith was the only person tried for the killings. He was convicted based solely on the eyewitness testimony of a survivor, Larry Boatner. Prosecutors presented no DNA, fingerprints, weapons or other physical evidence.

But Mr. Boatner’s testimony proved sufficient.

“He’s right there,” Mr. Boatner said at Mr. Smith’s trial, pointing at the defendant. “I’ll never forget him.”

It later emerged that prosecutors had failed to disclose reports of interviews with Mr. Boatner. In one, hours after the killings, Mr. Boatner said he could not describe the intruders except to say they were black men. Five days later, he said he had not seen the intruders’ faces and could not identify them.

Eyewitness evidence, according to recent studies and court decisions, is both unusually persuasive and unusually unreliable. Kannon K. Shanmugam, a lawyer with William & Connolly who represented Mr. Smith in the Supreme Court, told the justices in a brief that the withheld statements from Mr. Boatner “constitute the epitome of impeachment evidence.”

There was no question, Chief Justice John G. Roberts Jr. wrote for the majority, that the reports should have been turned over under Brady v. Maryland, a 1963 Supreme Court decision that requires prosecutors to provide favorable evidence to the defense. The question for the justices was only whether the failure mattered — that is, in the words of a 2009 decision, whether “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”

In a brisk four-page opinion in the case, Smith v. Cain, No. 10-8145, Chief Justice Roberts wrote that “Boatner’s undisclosed statements were plainly material.”

The Court’s opinion is relatively brief, and to the point:

We have observed that evidence impeaching an eyewitness may not be material if the State’s other evidence isstrong enough to sustain confidence in the verdict. See United States v. Agurs, 427 U. S. 97, 112-113, and n. 21 (1976). That is not the case here. Boatner’s testimony was the only evidence linking Smith to the crime. And Boatner’s undisclosed statements directly contradict histestimony: Boatner told the jury that he had “[n]o doubt” that Smith was the gunman he stood “face to face” with on the night of the crime, but Ronquillo’s notes show Boatner saying that he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” App. 196, 200, 308. Boatner’s undisclosed statements were plainly material.

The State and the dissent advance various reasons whythe jury might have discounted Boatner’s undisclosed statements. They stress, for example, that Boatner madeother remarks on the night of the murder indicating thathe could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner’s contradictory declarations the jurywould have believed. The State also contends that Boatner’s statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State’s argument offers a reason that the jury could have disbelieved Boatner’s undisclosed statements, but gives usno confidence that it would have done so.

As Steve Benen notes, however, Justice Thomas, the lone dissenter, would establish a far different standard:

Smith is correct that these undisclosed statements could have been used to impeach Boatner and Ronquillo duringcross-examination. But the statements are not material for purposes of Brady because they cannot “reasonably be taken to put the whole case in such a different light as toundermine confidence in the verdict.” Kyles, 514 U. S., at 435. When weighed against the substantial evidence that Boatner had opportunities to view the first perpetrator, offered consistent descriptions of him on multiple occasions, and even identified him as Smith, the undisclosed statements do not warrant a new trial.

(…)

The question presented here is not whether a prudent prosecutor should have disclosed the information that Smith identifies. Rather, the question is whether the cu- mulative effect of the disclosed and undisclosed evidence in Smith’s case “put[s] the whole case in such a differentlight as to undermine confidence in the verdict.” Kyles,514 U. S., at 435. When, as in this case, the Court departs from its usual practice of declining to review alleged misapplications of settled law to particular facts, id., at 456 (SCALIA, J., joined by Rehnquist, C. J., and KENNEDY and THOMAS, JJ., dissenting), the Court should at least consider all of the facts. And, the Court certainly should not decline to review all of the facts on the assumption thatthe remainder of the record would only further support Smith’s claims, as the Court appears to have done here. Ante, at 3-4. Such an assumption is incorrect. Here, much of the record evidence confirms that, from the night of the murders through trial, Boatner consistently described—with one understandable exception—the first perpetrator through the door, that Boatner’s description matchedSmith, and that Boatner made strong out-of-court and incourt identifications implicating Smith. Some of the undisclosed evidence cited by Smith is not favorable to him at all, either because it is of no impeachment or exculpa- tory value or because it actually inculpates him. Because what remains is evidence of such minimal impeachment and exculpatory value as to be immaterial in light of the whole record, I must dissent from the Court’s holding thatthe State violated Brady.

Thomas also happens to be the Justice who wrote the majority opinion in the civil verdict case mentioned above, and its clear that he would give far wider latitude to prosecutors in withholding potentially exculpatory information than his eight brethren.

This is a mistake. The burden that Thomas would place on a defendant in this type of case would make prosecutors virtually immune from any consequences for violating the Court’s landmark opinion in Brady v. Maryland where Justice Douglas said:

Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” 2 A prosecution that withholds evidence on demand of an accused which, if made available,  would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals.

As we already have seen from last year’s case this is not an isolated incident, during the time that Connick was District Attorney there are at least 19 incidents that we know of where men were convicted of capital crimes under circumstances involving wrongful conduct by the Orleans Parish D.A.’s office:

According to the Innocence Project, a national organization that represents incarcerated criminals claiming innocence, 36 men convicted in Orleans Parish during Connick’s 30-year tenure as DA have made allegations of prosecutorial misconduct, and 19 have had their sentences overturned or reduced as a result. (Connick retired in 2003.) The prosecutor who led the armed robbery trial and assisted in the murder trial, Jim Williams was one of the prosecutors whose work has come under scrutiny. In 1995, Esquire photographed him, for a piece on the death penalty, standing confidently in front of his desk with one of his favorite office decorations: a 12-inch-high, battery-powered (and operational) electric chair, complete with the mug shots of the five men he had personally prosecuted successfully in capital punishment cases. All five have subsequently been released or had their death sentences commuted to life due to procedural problems in their trials.

And those are the incidents we know of, in one District Attorney’s office. It makes one wonder what goes on elsewhere.

Here’s the opinion in Smith v. Cain:

Smith v. Cain

DALLAS – “It’s very frustrating,” Lorene Turner said.

She has spent hours on Facebook trying to find her granddaughter, Jakadrien.

“Once I get home I am up until 3 or 4 in the morning searching and looking,” Turner said. “It’s all I can think about. Finding my baby.”

Turner has been searching for Jakadrien since the fall of 2010, when she ran away from home. She was 14 years old and distraught over the loss of her grandfather and her parents’ divorce.

Turner searched for months for a clue.

“God just kept leading me,” she said. “I wake up in the middle of the night and do whatever God told me to do, and I found her.”

Turner said with the help of Dallas Police, she found her granddaughter in the most unexpected place – Colombia.

Where she had mistakenly been deported by U.S. Immigration and Customs Enforcement (ICE) in April of 2011.

How, exactly, could a minor who had been reported missing in 2010 end up getting deported almost a year later? Well…..

News 8 learned that Jakadrien somehow ended up in Houston, where she was arrested by Houston police for theft. She gave Houston police a fake name. When police in Houston ran that name, it belonged to a 22-year-old illegal immigrant from Colombia, who had warrants for her arrest.

So ICE officials stepped in.

News 8 has learned ICE took the girl’s fingerprints, but somehow didn’t confirm her identity and deported her to Colombia, where the Colombian government gave her a work card and released her.

“She talked about how they had her working in this big house cleaning all day, and how tired she was,” Turner said.

Through her granddaughter’s Facebook messages, Turner says she tracked Jakadrian down.

U.S. Federal authorities got an address. U.S. Embassy officials in Colombia asked police to pick her up.

But that was a month ago, and the Colombian government now has her in a detention facility and won’t release her, despite her family’s request.

So a 14 year old runaway gives the cops a fake name. Not exactly an uncommon occurrence one would think. Somehow, that also happens to be the name of an illegal immigrant. They hand her over to ICE, but ICE never bothers to verify her identiy and instead just dumps her in Colombia. Bizzare to say the least.

And then there are the actions of Colombia itself, which is apparently refusing to release someone who is at least a legal resident of the United States and may be a citizen (the article is not clear on whether Jakadrien was born in the United States)? What’s up with that?

Today’s New York Times reports that New York City Police officers are apparently not reporting some crimes:

Crime victims in New York sometimes struggle to persuade the police to write down what happened on an official report. The reasons are varied. Police officers are often busy, and few relish paperwork. But in interviews, more than half a dozen police officers, detectives and commanders also cited departmental pressure to keep crime statistics low.

While it is difficult to say how often crime complaints are not officially recorded, the Police Department is conscious of the potential problem, trying to ferret out unreported crimes through audits of emergency calls and of any resulting paperwork.

As concerns grew about the integrity of the data, the police commissioner, Raymond W. Kelly, appointed a panel of former federal prosecutors in January to study the crime-reporting system. The move was unusual for Mr. Kelly, who is normally reluctant to invite outside scrutiny.

The panel, which has not yet released its findings, was expected to focus on the downgrading of crimes, in which officers improperly classify felonies as misdemeanors.

But of nearly as much concern to people in law enforcement are crimes that officers simply failed to record, which one high-ranking police commander in Manhattan suggested was “the newest evolution in this numbers game.”

(…)

The reasons for not taking a report, police officials said, can vary. Some officers seek to avoid the dull task of preparing reports; others may fear discipline for errors in paperwork. Sometimes officers run out of time because they are directed to another job.

There are certainly calls that do not merit a crime report: a victim’s account of an alleged crime can be deemed dubious, for example.

However, some commanders said, officers sometimes bend to pressure by supervisors to eschew report-taking. “Cops don’t want a bad reputation, and stigma,” one commander said. “They know they have to please the sergeants.” Like several other officers and supervisors, he spoke only on the condition of anonymity for fear of retribution.

The sergeants, in turn, are acting on the wishes of higher-ups to keep crime statistics down, a desire that is usually communicated stealthily, the commander said. As an era of low crime continues, and as 2011 draws to a close with felony numbers running virtually even with last year’s figures, any new felony is a significant event in a precinct and a source of consternation to commanders.

Obviously, it’s usually the so-called “minor” crimes that end up getting treated this way. Pick-pocketing, which is an almost impossible crime to solve unless you catch someone in the act or catch them using stolen credit cards later down the line, is probably be prime example of that. But New York, like many other big cities, has a plethora of laws for a wide variety of minor offenses. Add to that the fact that the act of processing a police report can often eat up the better part of an patrolman’s shift, and the incentives to not file reports in those types of cases seem pretty obvious.

Just under a year ago, James Joyner wrote about a case out of Michigan about a husband who was being prosecuted under that state’s computer crimes statute for accessing his wife’s email without permission. This excerpt from the original story provides the details:

Could someone face prison time for snooping through a spouse’s e-mails?

For Leon Walker of Michigan, the answer was yes.

Suspecting that his wife was involved with another man, and worried that it was affecting their daughter, Walker logged into Clara Walker’s Gmail account last summer. Walker, 33, said it was easy for him to log in because his wife kept the password in a book next to the computer. “I definitely felt it was OK to confirm [the affair] by reading her e-mail in our home,” said Walker.

While Walker believed it was OK, Oakland County prosecutors did not and have charged Walker with felony misuse of a computer. If convicted, he could face up to five years in prison.

[...]

Prosecutors contend that Walker — who is a computer technician — illegally hacked into his wife’s computer after she had filed for divorce, but Walker’s lawyer calls the prosecution’s claim an overzealous application of a law meant to protect trade secrets and credit card data.

“People who live under the same roof, be they married or not, and who share a computer — as in this instance — they may have some personal privacy lines that they adhere to. And if they don’t, that’s between the two individuals,” defense attorney Leon Weiss said.

“The word ‘e-mail’ does not appear in this statute. This is an anti-hacking statute,” Weiss said. “It does not, in any way, shape or form encompass reading somebody’s e-mail.”

Over the past year, the case has made its way back and forth through District and Circuit Courts in Oakland County, Michigan as the prosecution and defense argued over whether what Walker did could be charged under the applicable statute. After losing on that issue in the last hearing, Walker appealed, and, earlier this week the Michigan Court of Appeals ruled that Walker can indeed be charged under the facts alleged and proven in preliminary hearings:

Cuckholded husband Leon Walker’s attempt to have the felony case against him dismissed for hacking into his wife’s email failed Wednesday when the Michigan Court of Appeals ruled prosecutors have sufficient evidence to charge him with a crime.

Walker, of Rochester Hills, was charged with a five-year felony after accessing his estranged wife’s email on a shared computer and using some of the information in their divorce proceedings. He told the court he “guessed” her password.

Walker, her third husband, reportedly discovered in his snooping that she was having an affair with her second husband.

Walker also printed emails and delivered them to his wife’s first ex-husband, who was embroiled in a child custody dispute with her. The ex tried to use the documents to prove neglect.

Walker, an Oakland County Information Technology employee, sought to have the case against him dismissed, arguing the statute under which he was charged “prohibits the unauthorized access of computers, computer programs, computers systems, and computer networks, and that an email account does not fall under any of those categories,” according to court documents.

The circuit court disagreed, ruling that “Gmail is a computer system and, although the statute does not refer to email, the district court analogized the case to a felonious assault where a gun was used but an item such as a bullet or gun powder that is not specifically named in the statute harmed the victim.”

The Court’s opinion deals largely with a technical interpretation of the Michigan statute, but it finds that Walker did indeed act in a manner covered by the law:

Defendant admitted to the police that he accessed his estranged wife’s Gmail account after guessing her password. Defendant then gave copies of her emails to a third party. Thus, a reasonable inference can be drawn that defendant acted intentionally when he accessed his wife’s Gmail account, used the account to view her email messages, and printed the messages to distribute to a third party.

Second, there was evidence that defendant acted without authorization when he accessed his estranged wife’s Gmail account. Defendant’s wife testified that her Gmail account was a  personal account and that she never shared her passwords for the account with defendant or granted him permission to access the account. Further, she allowed defendant to use her computer only when it needed a repair. Defendant admitted to the police that he accessed his wife’s Gmail account by guessing her password. These facts support a reasonable inference that defendant lacked authorization for his access of his wife’s Gmail account.

Next, the evidence at the preliminary examinations established that defendant accessed or caused access to be made to a computer program, computer, computer system, or computer network. Detective Carol Liposky, testifying as an expert on computer crimes and computer-forensic issues, explained that a user’s messages are stored on the Gmail server. A server is a computer. The emails cannot be accessed without a password. After a user signs in with a valid password, email messages are retrieved from the Gmail server through the Internet. The Internet is a computer network. Further, Gmail is a computer program because it is written by programmers to perform certain tasks, i.e., to function as an email client by which users can send emails, accept incoming emails, and delete emails. The Gmail servers act as a computer system by performing the required functions. Thus, Liposky opined that by accessing Gmail, a person uses a computer program, a computer system, a computer network, and a computer. “She’s accessing it using a computer, she’s using the Internet, which is a computer network, and a program such as Gmail, that it [sic] was created specifically for e-mail.” Thus, the evidence supports a conclusion that by guessing his wife’s password and then using her Gmail account, defendant accessed or caused access to be made to a computer program, computer, computer system, or computer network.

Finally, the prosecutor presented evidence that defendant acquired, altered, damaged, deleted, or destroyed property or otherwise used the service of a computer program, computer, computer system, or computer network. Defendant used the services of Gmail when he gained access to his estranged wife’s account, viewed her emails, and printed them to distribute to a third party. Further, by viewing, printing, and distributing the emails, defendant acquired his wife’s property, i.e., her password-protected emails containing restricted personal information or other tangible or intangible items of value. MCL 752.793(1).

One legal analyst, though, raises an interesting policy question:

At the Appeals Court level, legal analyst and Talk Radio 1270 morning show host Charlie Langton said he’s surprised at the decision.

“I think in this day and age we should prosecute people for real crimes that involve misuse of your position for personal gain,” Langton said.

He also thinks it’s an issue for family court, and not criminal court.

“The criminal court should not interfere in what appears to be a very messy divorce,” Langton said.

This is not an uncommon issue in domestic relations cases these days. Indeed, it seems that a common means by which infidelity is discovered in the day and age of e-mail, text messaging, and Twitter is via illicit communications “accidentally” discovered  by one spouse concerning the other. How accidental these discoveries actually are is another question, of course, since it’s usually the case that someone has to go looking for this kind of stuff, and have reason to do so, in order to find it. Legally, though, doing so often violates not only state laws, but also Federal laws that prohibit unauthorized access to stored communications, such as the law in Michigan. In Virginia, for example, such activity would generally be covered by the law against Computer trespass. There are no exceptions in these laws for adults living together in the same household or married couples, so prosecutions like this are likely to become the rule rather than the exception in the future.

The question is, should they? Langton makes a good point above, I think, when he argues that the facts at issue in the Walker case make it seem more appropriate for Family Court than Criminal Court, perhaps via court rules that state that evidence of infidelity obtained in this matter would not be admissible in Court, perhaps by other means. Sending someone to jail in this situation strikes me as a bit of an overreach and, perhaps, a misapplication of prosecutorial resources that could be better applied to violent crime and fraud.

H/T: Volokh Conspiracy

From today’s edition of the stupid criminal files:

An 18-year-old Pittsburgh man is accused of burglarizing a market with three teens, then posting pictures on his Facebook page showing the suspects mugging with some of the loot.

Isaiah Cutler who has been jailed since Friday in the Dec. 12 burglary. Online court records don’t list an attorney for him.

Police say Cutler, a 17-year-old and two 14-year-olds stole more than $8,000 worth of cash, cigarettes, candy and checks from the business. About an hour later, police say, Cutler posted pictures of the teens posing with the loot on his page on the social networking site.

The younger suspects have been charged in juvenile court and been released to their parents.

Nice work guys.

I’m beginning  to have serious doubts about the legal strategy of Jerry Sandusky’s legal team. First, they let him engage in media interviews, including one in which he couldn’t give a straight answer to the question “Are you attracted to young boys?,” then they start issued veiled threats against Sandusky’s accusers and accusing them of being in it for the money, and now there’s this:

HARRISBURG, Pa. (WHTM) – A Carlisle attorney who has joined Jerry Sandusky’s defense team says the former Penn State assistant football coach may have showered with young boys because the children lacked basic hygiene skills.

Sandusky is accused of molesting ten boys he met through The Second Mile charity he founded for troubled youth.

“Some of these kids don’t have basic hygiene skills,” attorney Karl Rominger said. “Teaching a person to shower at the age of 12 or 14 sounds strange to some people, but people who work with troubled youth will tell you there are a lot of juvenile delinquents and people who are dependent who have to be taught basic life skills like how to put soap on their body.”

Rominger, who spoke with abc27 News Tuesday, added that his college cross country coach often showered with the team.

Now, I usually don’t like to judge another attorneys decisions in a case I’m not involved in, but I really hope that Rominger isn’t thinking of walking into a courtroom and making that argument with a straight face.

Update: Rominger sought to clarify his comments in a later statement:

In a statement issued Thursday by Rominger and Associates, Rominger said the media accounts of his answer have become “somewhat exaggerated.”

“When answering why a person might be in a shower with a youth, I proposed one hypothetical, such as an adult leading by example and encouraging a youth with bad or poor hygiene to shower regularly,” he said in the statement.

“Some commentators have argued that I am saying that Mr. Sandusky showered with youths and touched them inappropriately for the purpose of teaching them how to shower,” Rominger said. “That is not what I said.”

“First, there’s no evidence of inappropriate touching in a shower, except for discredited statements from the grand jury presentment,” he said. “Further, Jerry has maintained his innocence and denies any sexual touching or inappropriate touching in the shower.”

“Therefore, I would like to clarify that I am not suggesting that this is what happened in this case, but was answering questions about possible motivations an individual might have for an adult to shower with a juvenile,” he said.

Translation: Never mind.

The Civil Rights Division of the Department of Justice has released a harsh assessment of the practices of the Maricopa County, Arizona Sheriffs Department, which happens to be led by a man who has become something of a darling of the right:

PHOENIX — In a harshly worded critique of the country’s best-known sheriff, the Justice Department accused Joe Arpaio of the Maricopa County Sheriff’s Office of engaging in “unconstitutional policing” by unfairly targeting Latinos for detentions and arrests and retaliating against those who complain.

After an investigation that lasted more than two years, the civil rights division of the Justice Department said the sheriff’s office has “a pervasive culture of discriminatory bias against Latinos” that “reaches the highest levels of the agency.” The department interfered with the inquiry, the government said, prompting a lawsuit that eventually led Mr. Arpaio and his deputies to cooperate.

“We have peeled the onion to its core,” said Thomas E. Perez, the assistant attorney general for civil rights, noting during a conference call with reporters on Thursday morning that more than 400 people were interviewed as part of the review. Mr. Perez said the inquiry raised the question of whether Latinos were receiving “second-class policing services” in Maricopa County.

The report stems from a civil inquiry and Mr. Perez said he hoped that Mr. Arpaio would cooperate with the federal government in turning the department around. Should he refuse, a lawsuit will be filed, Mr. Perez said, adding that the Justice Department is conducting a separate criminal inquiry of the department.

Mr. Arpaio was singled out for criticism in the report, which faulted him as distributing racially charged letters and e-mails he had received and helping to nurture the department’s “culture of bias.”

The findings, which Mr. Arpaio is sure to contest, paint a picture of a department staffed by poorly trained deputies who target Latino drivers on the roadways and detain innocent Latinos in the community in their searches for illegal immigrants. The mistreatment, the government said, extends to the jails the department oversees, where Latino inmates who do not speak English were mistreated.

“The absence of clear policies and procedures to ensure effective and constitutional policing, along with the deviations from widely accepted policing and correctional practices, and the failure to implement meaningful oversight and accountability structures, have contributed to a chronic culture of disregard for basic legal and constitutional obligations,” the report said.

The report said that Latino drivers were four to nine times more likely to be stopped in the sprawling county, which includes Phoenix and its environs, than non-Latino drivers. The expert who conducted the study called it the most egregious racial profiling he has ever seen in this country, said Mr. Perez, the prosecutor.

The report said that roughly one-fifth of the traffic-related incident reports generated by the department’s human smuggling unit contained information indicating the stops may have been conducted in violation of the Fourth Amendment’s prohibition on unreasonable seizures.

The report also suggested that Mr. Arpaio’s well-publicized raids aimed at arresting illegal immigrants were sometimes prompted by complaints that described no criminal activity but referred to people with “dark skin” or Spanish speakers congregating in an area. “The use of these types of bias-infected indicators as a basis for conducting enforcement activity contributes to the high number of stops and detentions lacking in legal justification,” the report said.

It’s been clear for years that Arpaio is a man who has little respect for the Constitutional rights of the accused, and even less when those accused happen to have brown skin and speak with an accent. One would like to think that this would finally be the thing that gets him out of office after being overwhelmingly elected five times, but that may be asking too much of the residents of Maricopa County.

In something of a surprise move, former Penn State Assistant Coach Jerry Sandusky and his lawyers appeared at the start of what was expected to be a two-day preliminary hearing on the charges against him and exercised the right to waive the hearing:

BELLEFONTE, Pa. — Jerry Sandusky waived his preliminary hearing this morning on child sexual assault charges, meaning there will be no testimony today and the case will proceed to Common Pleas court.

The hearing began at 8:30 a.m., and Sandusky, 67, waived immediately. He said in a press conference afterward that he intends to fight the charges, but today wasn’t the day to do so. There has been no talk of a plea agreement, his lawyer said.

“We fully intend to put together the best possible defense and stay the course for four full quarters,” said Sandusky, a former Penn State assistant football coach.

Sandusky will be arraigned on Jan. 11. He is out on $250,000 bail, wearing an ankle monitor and is forbidden from contact with children. He has been charged with 50 counts related to the alleged sexual abuse of 10 boys.

Ken Suggs, an attorney for Victim 6, called Sandusky a coward for waiving. He said he believes Sandusky waited until the last minute to waive to see if accusers were going to show up and was afraid that they would be believed.

Victim One was ready to testify, his lawyer said, but wasn’t at the courthouse because he’d expected the waiver. Attorney Slade McLaughlin said, “I have a hard time believing this decision was made at 8:30″ this morning. McLaughlin said, “My gut feeling is we’ll have a plea deal.”

At a preliminary hearing, a judge decides if prosecutors have enough evidence to send the case to trial. Defense lawyers sometimes waive preliminary hearings to avoid more negative publicity. Sandusky’s lawyer, Joe Amendola, said yesterday that he was eager to hear from the witnesses: “We plan to proceed with Jerry’s hearing, and Jerry is looking forward to the opportunity to face his accusers.”

(…)

The senior deputy attorney general said prosecutors had 11 witnesses on standby and were surprised by the waiver. “I would imagine (Mike McQueary) would have testified,” he said. McQueary testified before a grand jury that he saw Sandusky rape a child in a Penn State bathroom, although McQueary’s story has differed.

“This development we believe provides maximum protection to, most importantly, the victims in this case,” said Senior Deputy Attorney General E. Marc Costanzo. “It avoids their having to testify for a second time. They will of course testify at a trial in the case.”

It’s at least somewhat unusual that they’d waive the hearing given the fact that it essentially gives the defense free discovery of the prosecutor’s case as well, advance knowledge of what the witnesses will say at trial, and potential material for witness impeachment if testimony at trial differs from testimony at the Preliminary Hearing. Of course, it’s possible that the defense determined that it would not be in Sandusky’s  interest to go forward with the hearing and allow the negative publicity of specific details make it into the public domain before trial. Of course, it that was the motivation for the waiver, then it doesn’t really make sense that they’d do this at the last minute, that’s the kind of determination that would have, or at least should have, been made weeks ago. This may mean there are plea negotiations going on behind the scenes, but we’ll have to wait to see if anything happens in that regard before knowing for sure.

Penn State Assistant Coach Mike McQueary is, as far as we know, the only independent witness to the alleged child abuse committed by Jerry Sandusky. In the Grand Jury Testimony that led to Sandusky’s first arrest, McQueary describes seeing Sandusky naked in the showers at the PSU athletic facilities with a young boy, also naked, and performing a sex act. That description, and the subsequent lack of action by Penn State authorities were the center point of the furor over the charges when they emerged last month and led in part to the end of Joe Paterno’s nearly 60 year coaching career. McQueary’s story appeared to develop some holes shortly thereafter,though. He was reported to have told friends that he had “stopped” Sandusky and gone to the police, neither of which were in the Grand Jury’s report. Additionally University Police have denied that any report was ever made to them. Now, another story has emerged that seems to have McQueary telling a different version of events to his father and a third-party who was present when McQueary went home that night:

STATE COLLEGE — Minutes after Mike McQueary says he stumbled upon something between Jerry Sandusky and a boy in a Penn State shower in 2002, he went to his father’s State College home seeking advice.

There, Dr. Jonathan Dranov, a family friend and colleague of McQueary’s father, sat with the then 28-year-old graduate assistant and listened to his very first account of what he had seen, a source told The Patriot-News.

According to the source with knowledge of Dranov’s testimony before the grand jury, it went like this:

McQueary heard “sex sounds” and the shower running, and a young boy stuck his head around the corner of the shower stall, peering at McQueary as an adult arm reached around his waist and pulled him back out of view.

Seconds later, Sandusky left the shower in a towel.

That account is different from the hand-written statement obtained by The Patriot-News that McQueary provided for investigators when he was interviewed in 2010.

It’s also different than the summary of his grand jury testimony in the 23-page initial grand jury presentment.

In both of those accounts, McQueary says he witnessed Sandusky sodomizing a boy as he stood with his hands against a shower wall.

McQueary says the pair turned and looked at him before he left.

However, Dranov told grand jurors that he asked McQueary three times if he saw anything sexual, and three times McQueary said no, according to the source.

Because of that response, the source says, Dranov told McQueary that he should talk to his boss, head football coach Joe Paterno, rather than police.

McQueary’s testimony, and this apparent contradiction, are important to several aspects of the case. First, as the article notes, it is McQueary’s testimony that formed the basis of the perjury and failure to report charges against PSU Athletic Director Tim Curley and Vice-President Gary Schultz because the question of what they knew is what creates their obligation to report the incident to the authorities. Secondly, as noted, McQueary is the only independent witness to any of these acts and, at least with respect to Victim No. 2, the only witness at all since it still does not appear that the police have been able to track down the boy involved in the alleged incident in 2002, who would now be about 19 years old.

The discrepancy between what Dranov says McQueary said on the night of the incident and what is in the Grand Jury testimony is pretty significant, and is yet another example of what I described when the first round of discrepancies became public:

The problem for the prosecutors is that their star witness has now handed Sandusky’s attorney with a gold mine for cross examination that he will try to use to undercut McQueary’s credibility as a whole. It might not work, but it’s going to be a headache for the prosecution who already have to worry about how to protect the credibility of a witness that many people on the jury are likely to look on with suspicion to begin with because of his failure to act.

None of this says that Sandusky is innocent, of course, but in a criminal trial it is the burden of the prosecution to prove guilt beyond a reasonable doubt, not the other way around. Witness problems like this are not helpful.

A Virginia Tech police officer was fatally shot during a routine traffic stop on the Blacksburg campus and a second person was found slain in a nearby parking lot after the gunman fled, the university reports.

The shooter is still at large, the university said.

A campus-wide message advised students to “Stay indoors,” and warned. “Secure in place.”

There are no classes today at the university as students have a reading day to prepare for finals.

The university said it was a routine traffic stop that prompted the shootings.

Jermaine Holmes, director of academic support services for student athletes, said the shooting appeared to be a traffic stop gone awry.

“It’s right across from our building in the parking lot,” he said. “It didn’t appear to be just a kind of random shooting.”

Holmes said the parking lot had been cordoned off with yellow police tape, and the area was thick with officers. He said he and his colleagues felt safe, and he was impressed by the swiftness of the campus alert system.

“The facilities folks locked down the building immediately,” he said. “We’re not allowing any students or staff to leave.”

Virginia Tech, a public campus of about 30,000 students, has one of the nation’s most advanced security alert systems, installed after the nation’s worst campus shooting, a 2007 rampage by student Seung-Hui Cho that left 32 dead.

Fortunately, the advance warnings and lockdown procedures seem to be working at the moment so the students appear to be safe. Hopefully, this will be resolved soon.

Update: It’s just before 5:00pm and the lockdown has apparently been lifted. There is a suspicion, which police won’t confirm publicly, that the second victim may have be the shooter himself.

Former Penn State Assistant Coach Jerry Sandusky was arrested for a second time this morning at his home after two new men accused him of having abused them when they took part in the Second Mile program:

The Pennsylvania Attorney General’s office has filed new charges against Jerry Sandusky, 67, as part of an investigation into alleged sexual assaults of children.

“Today’s criminal charges were recommended by a statewide investigating grand jury, based on evidence and testimony that was received following the initial arrest of Sandusky on November 5th,” Kelly said. “At that time, Sandusky was charged with sexually assaulting eight victims, all of whom first encountered Sandusky as children through The Second Mile, a organization that he founded to operate programs for disadvantaged young people.”

Kelly said these latest criminal charges come following grand jury testimony from two additional young men, identified as Victim 9 and Victim 10, who were allegedly targeted by Sandusky when they were children.

“As in many of the other cases identified to date, the contact with Sandusky allegedly fit a pattern of ‘grooming’ victims,” Kelly said, “Beginning with outings to football games and gifts; they later included physical contact that escalated to sexual assaults.”

As with the previous charges, the details of these two new cases are unpleasant to say the least:

Kelly said Sandusky allegedly took the boy to numerous Penn State University football games and gave him gifts and money.

Later, the grand jury found that during overnight stays at Sandusky’s home, behavior such as hugging, rubbing, cuddling and tickling – initially viewed as acts of affection – escalated to sexual assaults. Additional sex acts were allegedly performed in the swimming pool and Jacuzzi of a hotel in the State College area, at times when the pool area was not occupied.

According to the presentment, Sandusky told Victim 9 that he loved and cared for him and urged him to keep their activities secret.

In the case of Victim 10, the boy was referred to The Second Mile in 1997, when he was 10 years old, at the recommendation of a counselor because of difficulties in his home life. Sandusky allegedly approached the boy during a summer camp and later made arrangements to take the boy to several Penn State Football games where the boy played football at Holuba Hall on the Penn State campus, attended “tailgate parties” prior to the game and spent time at the Sandusky home.

According to the grand jury, “wrestling” sessions in the basement of Sandusky’s home eventually escalated to incidents where Sandusky performed oral sex on the boy. Victim 10 also detailed incidents which occurred at a swimming pool on the Penn State Campus, along with an encounter in a car when Sandusky allegedly exposed himself and requested oral sex from the boy.

As in other cases, Sandusky allegedly gave the boy gifts and frequently told the boy that he loved him.

Sandusky is charged with four counts of involuntary deviate sexual intercourse and two counts of unlawful contact with a minor, all first-degree felonies which are each punishable by up to 20 years in prison and $25,000 fines.

Additionally, he is charged with one count of indecent assault and two counts of endangering the welfare of children, all third-degree felonies which are each punishable by up to seven years in prison and $15,000 fines.

Sandusky is also charged with one count of indecent assault and two counts of corruption of minors, all first-degree misdemeanors each punishable by up to five years in prison and $10,000 fines.

If you’re at all interested, you can read the Grand Jury Presentment for yourself. Sandusky was arraigned earlier this afternoon and is being held pending his being able to post $250,000 cash bail. If he meets the bail requirements, then he will be subject to electronic monitoring at home pending trial. There are already rumors, though, that an 11th victim may be coming forward shortly and, if additional charges are filed, there’s a pretty good chance that bail will no longer be an option.

This story just keeps getting sicker and sicker.

RICHMOND — A Virginia appeals court declared Thomas Haynesworth an innocent man Tuesday, clearing his name and acknowledging that he spent 27 years behind bars for rapes he did not commit.

It is the first time the state has issued a “writ of actual innocence” in a rape case without the certainty of DNA evidence. Haynesworth, 46, was supported by Attorney General Ken Cuccinelli II (R) and two state prosecutors — all of whom concluded that he was mistakenly identified by a rape victim as he walked to a Richmond market for sweet potatoes and bread one February afternoon in 1984.

“It’s a blessing,” Haynesworth said as he stood with his attorneys and Cuccinelli. “There are a lot of people behind the scenes who believed in me. Twenty-seven years, I never gave up. I kept pushing. I ain’t give up hope.

“I am very happy. Me and my family can finally put this behind us, and I can go on with my life. And I can finally vote.”

The case shows how far Virginia has come in allowing convicts to argue their innocence. Historically, prisoners were barred from introducing new evidence more than three weeks after sentencing, and in the 1990s, then-Attorney General Mary Sue Terry (D) famously said, “Evidence of innocence is irrelevant.” But when DNA testing resulted in hundreds of exonerations nationwide, it prompted Virginia lawmakers to open the door for courts to reconsider guilt based first on genetic evidence and later on other evidence, such as recanted testimony, fingerprints or ballistics.

Although Haynesworth was released on parole in March, he has not been fully free. Now, his photo has been taken off the state’s sex offender registry. He is allowed to use the Internet. Finally, he can take a woman on a date without first introducing her to a parole officer.

“I have never heard him this excited, including the day he was released from jail,” said Shawn Armbrust, one of his attorneys and director of the Mid-Atlantic Innocence Project. “Everybody, the law and the government, says he did not do this. Before there was always an asterisk.”

The facts of the case, and the events that led to Haynesworth’s exoneration are worth noting:

Haynesworth was 18 when he was arrested as he headed to the market to buy groceries for Sunday dinner. A woman who had been attacked days earlier spotted him and told a police officer that he was the assailant.

Haynesworth told police that they had the wrong man. But five women ultimately identified him as their attacker. He was convicted in three attacks and acquitted in one; one case was dropped.

For years, Haynesworth languished in prison. He earned his GED and studied auto mechanics, welding and masonry.

But he never gave up trying to prove his innocence. When he came before the parole board he didn’t apologize — despite advice from fellow inmates that it might earn him an early release, he said. He wrote letters to “60 Minutes,” local newspapers and law students asking for help.

A turning point came in 2005 when the exonerations of five wrongly convicted men prompted then-Gov. Mark R. Warner to order a sweeping review of thousands of cases with DNA evidence. Haynesworth’s case was among them.

Using technology that wasn’t available in the 1980s, authorities tested semen collected in a January 1984 rape for which Haynesworth had been convicted. It cleared him and pointed to a convicted rapist named Leon Davis.

The Innocence Project took on Haynesworth’s case, and DNA was tested in another rape case in which Haynesworth was a suspect. Again, he was cleared, and Davis, who is serving a life sentence for different crimes, was implicated.

Haynesworth’s attorneys were convinced that Davis, who lived in the same neighborhood and resembled Haynesworth, was the sole attacker. But in the two remaining cases, there was no genetic evidence to test.

Virginia prosecutors agreed to delve back into the case. During a months-long investigation, authorities re-interviewed Haynesworth and the victims and re­examined the files. Haynesworth passed two polygraph examinations. In the end, prosecutors were also convinced that all the victims had identified the wrong man.

Haynesworth’s fate isn’t unusual. It’s fairly well-established that incorrect witness identifications are one of the leading causes of wrongful convictions in the United States, largely because juries tend to place far more weight on such identifications than the evidence would suggest they are entitled to. Earlier this year, in fact, the New Jersey Supreme Court ordered sweeping changes in the manner in which these identifications are handled by police, and in court, in an effort to reduce the possibility of error.

I guess the good thing for Haynesworth is that he wasn’t sent to Death Row all those years ago, because he wouldn’t be alive to see this day.

It’s been more than six months former IMF head Dominique Strauss-Kahn was taken off a Paris-bound plane at JFK airport and arrested for allegedly raping a hotel maid, and just a few months since the charges against him were dropped after his accuser’s story began to fall apart due to her own lack of credibility. Now, investigative reporters Edward Jay Epstein is out with a report in The New York Review of Books that, to say the least, raises many questions about what the heck really happened that day in May, 2011 in the Presidential Suite at the Sofitel. The entire article is worth a read, but Linette Lopez does a good job of summarizing the major discrepancies that Epstein points out based on his review of police and hotel records

1. DSK’s IMF Blackberry is still missing: Where was this in the news? Epstein points out that even before the Sofitel encounter, DSK had been warned that his IMF Blackberry (which he used for a mix of personal and professional communication) had been compromised. A friend told him that Sarkozy’s party was somehow in possession of an e-mail he sent to his wife, Ann Sinclair. He was about to have the phone examined for bugs in Paris. This is the Blackberry he lost after his encounter with Sofitel maid Naffest Diallo. She entered his room around 12:06 PM or 12:07 PM. She left around 12:13 PM. He then called his daughter Camille on his personal phone, met her for lunch, and shortly after he left McCormick and Schmicks where he was dining with Camille, he realized his IMF phone was gone.
2. Diallo kept going back to the same hotel suite all day and we still don’t know who was staying in it: According to key card swipe records, Diallou visited room 2820 a few times on May 14, including while a guest could have still been there. She also went there immediately after leaving DSK’s suite. She did not tell the prosecution about this.
3. The hotel’s security company has close ties to Sarkozy: A French company called Accor group owns the Sofitel hotel. And while Diallo was reporting DSK in NYC, their head of security, René-Georges Querry, was attending a soccer game with President Sarkozy. Back in NYC, John Sheehan the director of safety and security at Accor made a mysterious call to an unidentified 646 number while en route to the Sofitel to look into the Diallo issue. There’s more: Xavier Graff, the duty officer at the Accor Group in Paris, later sent an e-mail where he lauds “bringing down DSK” (he later said it was a joke), and on May 14th, a security guard and an unidentified man were seen giving each other high fives and celebrating around 1:28 PM. This is the same unidentified man who took Diallo to the security office when she reported being assaulted at 12:52 PM.

That last part of Epstein’s hypothesis seems to be a bit of a stretch to me. The general idea seems to be that Strauss-Kahn had already been made aware that at least one of his cell phones and his iPad may have been compromised by, well, someone and was apparently intending to have both devices tested by a computer security firm once he returned to Paris. As Epstein relates it, DSK had been told that morning by a woman who had been a researcher at the headquarters of Nicolas Sarkozy’s political party that an email that DSK had sent to his wife had been read and passed around at party headquarters recently, suggesting that either the phone or his iPad might be compromised. From there, he goes to the alleged links between Sarkozy and the corporate owner of the hotel and then, he relates this:

By the time Sheehan was called by the hotel at 1:03 PM, Diallo was seated on a bench in the hotel’s ground floor service area, just off the service entrance on 45th Street. Behind her was a “Dutch door,” with the upper half opened, that led to the hotel’s security office. Surveillance camera footage shows her entering the area with a tall unidentified man at 12:52 PM. She remains there until 2:05 PM. At 12:56, she is joined there by Brian Yearwood, the large, heavy-set man who is the hotel’s chief engineer. Yearwood had just come down from the presidential suite on the twenty-eighth floor, which he had entered at 12:51, according to the key records. Yearwood remained close to Diallo as she spoke to Adrian Branch, the security chief for the hotel, who remained behind the half-shut door of the security office. She can be seen gesturing with her hands for about four minutes, pointing to different parts of her body over and over again, suggesting she was telling and retelling her story.

At 1:28, Sheehan, still on the way to the hotel, sent a text message to Yearwood. And then another text message to an unidentified recipient at 1:30. At 1:31—one hour after Diallo had first told a supervisor that she had been assaulted by the client in the presidential suite—Adrian Branch placed a 911 call to the police. Less than two minutes later, the footage from the two surveillance cameras shows Yearwood and an unidentified man walking from the security office to an adjacent area. This is the same unidentified man who had accompanied Diallo to the security office at 12:52 PM. There, the two men high-five each other, clap their hands, and do what looks like an extraordinary dance of celebration that lasts for three minutes. They are then shown standing by the service door leading to 45th Street—apparently waiting for the police to arrive—where they are joined at 2:04 PM by Florian Schutz, the hotel manager.

All of this is, apparently, on hotel security video. It is, to say the least, odd behavior to see a hotel employee(s) high-fiving and seemingly celebrating given what was happening that day. Of course, the “celebration” could have been something else. It could be they were happy with the outcome of the previous night’s Yankees or Mets game, or the NBA playoffs that were going on at the time. Epstein would want us to draw the conclusion, obviously, that the men were involved somehow in a set up against DSK and that they were celebrating how well the plan had gone off so far. But even that doesn’t necessarily make sense. Even if there was a conspiracy, it still wasn’t clear that the NYPD would be convinced enough to pursue the case, or that they’d be able to get to DSK before he left the country. Engaging in that kind of activity, in full view of cameras and the public, doesn’t even make sense in the context of a conspiracy against DSK.

Nonetheless, Epstein does raise a lot of interesting questions. The question of what ever happened to DSK’s Blackberry is an interesting one, for example. It certainly wasn’t left behind in his hotel room because it would’ve been found in the police search. DSK’s daughter wasn’t able to find it when she went back to the restaurant she had just dined at with her father to look for it at his request. Records apparently indicate that the phone’s locator circuitry was disabled sometime around 12:51pm 0n the day of this incident, but that’s only part of the mystery:

While DSK believed he had left it in the Sofitel, the records obtained from BlackBerry show that the missing phone’s GPS circuitry was disabled at 12:51. This stopped the phone from sending out signals identifying its location. Apart from the possibility of an accident, for a phone to be disabled in this way, according to a forensic expert, required technical knowledge about how the BlackBerry worked.

From electronic information that became available to investigators in November 2011, it appears the phone never left the Sofitel. If it was innocently lost, whoever found it never used it, raising the question of by whom and why it was disabled at 12:51. In any case, its absence made it impossible for DSK to check—as he had planned to do—to see if it had been compromised. Nor was it possible to verify from the phone itself the report he received on May 14 that his messages were being intercepted. So we cannot confirm the warning to DSK that he was under surveillance on that disastrous day.

And then there’s Room 2820, just down the hall from the Presidential Suite. As noted above, the maid apparently entered and exited that room several times before going to the suite, and then again after the alleged incident. The hotel was aware of this but neither they nor the maid told this to the police when they arrived, meaning that the room was not declared part of the crime scene and was never searched and processed. The hotel still won’t say if anyone was staying in that room at the time, or who they were if there was.  All of this would seem to be relevant information.

The only thing we know for sure is that there was some kind of sexual encounter in the Presidential Suite of the Sofitel on May 14, 2011. It didn’t last very long, but it did happen, the forensic evidence confirms it and Strauss-Kahn’s lawyers have never denied that there was a sexual encounter. The question is whether there was consent or force. As far as the Manhattan District Attorney was concerned, there wasn’t sufficient evidence to prove force beyond a reasonable doubt. and these new revelations just put the maid’s story further into doubt. There is a civil suit pending, though, and DSK’s lawyers will have the authority at some point to subpoena records from the hotel that could cast further light on some of what Epstein reports here. That could be interesting, to say the least.

I don’t think any of us know what the real story is. I tend not to buy into conspiracy theories for the simple reason that there’s usually a much simpler explanation,  but after reading Epstein’s report, the whole thing just seems really dammed odd now.

Christie isn’t really talking about legalization or decriminalization here, of course, and it took him awhile after he became Governor to get on board with New Jersey’s medical marijuana program. Nonetheless, he’s making a good point here. Since the Nixon Administration, the response to drug use has been longer and stiffer jail sentences, even for people caught with small amounts of drugs. It’s not working and more than Prohibition worked. For some of these people, a more appropriate sentence would be diversion into an addiction treatment program. For the others, unless they’ve committed an act of violence, crowding our jails with people who haven’t actually hurt anyone seems silly and wasteful.

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