Gotham Gazette http://www.gothamgazette.com/component/tags/tag/656 Wed, 13 Dec 2017 12:55:22 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) 'Making A Murderer' Flaws All Around Us http://www.gothamgazette.com/?id=6172:making-a-murderer-flaws-all-around-us http://www.gothamgazette.com/?id=6172:making-a-murderer-flaws-all-around-us making a murderer

photo via Making A Murderer on Twitter


The Netflix documentary "Making A Murderer" challenges the moral core of our criminal justice system: that the police and prosecutors are objective and unbiased. The film follows Steven Avery, a Wisconsin man who spent 18 years in prison for rape before being exonerated, then arrested for murder two years later, found guilty, and sentenced to life in prison. The highly questionable police methods—a key piece of evidence miraculously appears; an improbable confession is coerced from a developmentally delayed adolescent—and the glaring conflicts of interest of many of the participants will infuriate any fair-minded viewer.

The criminal justice system's legitimacy is founded on our secular faith in unbiased police-work, forensic science, and truth-seeking prosecutors. However, many of these pillars are structurally unsound, as supported by reams of scientific studies and the wisdom of leading observers.

The problems with forensic science were first exposed systematically in a National Academy of Sciences report in 2009, but the legal system has been slow to incorporate its findings. Official misconduct of the type suggested in Making A Murderer is not isolated to small towns in Wisconsin. Alex Kozinski, one of America's foremost jurists and scholars, and a judge on the United States Court of Appeals, has recently written an opus which probes these problems in depth. And Kozinksi is no liberal; he was appointed by Ronald Reagan.

Take confessions. It is unfathomable to most of us, but it is not unusual for people under duress to confess to crimes they did not commit. And for minors sweating under the bright lights, their inherent anxiety and propensity for pleasing authorities, coupled with the various ruses, all legal, which the police can employ, render them easy prey. New Yorkers cannot forget that the Central Park Five (teenagers at the time) falsely confessed and spent several years in prison before being exonerated.

Eyewitness testimony is also subject to manipulations and the plasticity of human memory. In Steven Avery's first case the victim mistakenly identified him, after several inappropriate prompts from the police. And misidentification is even more likely when victims and perpetrators are of different races, an expected occurrence in multicultural communities like New York City. A New York State Bar Association study found misidentification to be the leading cause of wrongful convictions. Numerous expert panels have outlined model procedures for police to use when investigating eyewitness testimony and the NYPD should incorporate these findings.

High tech forensic science, despite its aura of infallibility, is less than perfect and many familiar methods have been tossed on the junk pile. Bite mark analysis, arson science, fiber and hair analysis, are among those that are now discredited as completely lacking in scientific validity. The Justice Department and FBI have acknowledged that evidence presented by an elite forensic unit over a two-decade period was based on methods now recognized as invalid.

The Manhattan District Attorney's office is, however, disregarding the scientific consensus and fighting tooth and nail to continue using bite mark evidence. In contrast, the new Brooklyn District Attorney, Ken Thompson, recently moved to have an arson-murder conviction overturned, in part due to now discredited "arson science," and Mr. Thompson's office is garnering national attention for its commitment to review cases and rectify wrongful convictions.

To a prosecutor, the most important bit of data is his or her conviction rate, and the resultant zeal to convict at all costs detours our system away from objectivity towards something like a witch hunt. Prosecutors routinely withhold exculpatory evidence from the defense. As Justice Kozinski puts it, "there is an epidemic of Brady violations [duty to disclose any vital evidence] in the land."

According to the National Registry of Exonerations, official misconduct was a factor in 45% of false convictions. In Orange County (CA) the district attorney's office is rocked with scandal after revelations that the police and prosecutors colluded in a decades long campaign of frame-ups and perjury. And in Brooklyn, as noted above, the new district attorney has begun dealing with the fallout from years of dubious tactics used by his predecessor, Charles Hynes.

This short list of prosecutorial abuses and junk science is only a glimpse at the problem. To give some depth, consider that one study in a prestigious journal estimated that 4.1% of all persons on death row could be exonerated. With roughly 3,000 people on death row now, about 120 persons sentenced to die may be innocent. If this rate of wrongful convictions is extended to the 1.5 million persons in federal and state prisons, 61,500 persons could be declared innocent, set free, and have their criminal records erased.

Though Steven Avery was not rich he had a competent defense team, yet still could not prevail (I am not claiming he is innocent, but that his trial was a travesty and he should not have been found guilty based on its proceedings.) But for poor people who cannot afford a private attorney, woefully understaffed and underfunded public defenders are their only option. That is why innocent people take plea bargains; without an effective defense they have no chance of winning. According to the National Registry of Exonerations, 10% of exonerees pleaded guilty, despite their innocence, to avoid a trial.

There is already a broad consensus that we send too many people to prison, for too long, and for behavior (e.g., drug use, sex work, nuisance offences) that should not be criminalized. Beyond that, we must ensure that police and prosecutors use valid methods to gather evidence and present that against the accused. The public election of prosecutors must be revisited to avoid the sort of uncontested transfer of power that occurred in the Bronx last year.

Finally, the New York State Court system recently issued rules enabling video recording of courtroom proceedings and these should be interpreted as liberally as possible to ensure that a Making A Murderer type of injustice can't happen here.

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Christopher Beall works at a criminal justice nonprofit in the Bronx and is on Twitter @JailedintheUSA.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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'Making A Murderer' Flaws All Around Us Tue, 16 Feb 2016 00:10:50 +0000
Bharara Visits Capital He Upended http://www.gothamgazette.com/?id=6154:bharara-visits-capital-he-upended http://www.gothamgazette.com/?id=6154:bharara-visits-capital-he-upended bharara mortgage

U.S. Attorney Preet Bharara (photo: @SDNYnews)


For the last year a siege mentality has dominated the New York state capitol. And in some respect, Albany, or at least the political denizens who dwell within the capitol, does appear to be very much in the cross hairs of a conquering army headed by U.S. Attorney Preet Bharara. The main roads into town feature digital billboards flashing entreaties from the FBI urging New Yorkers to "REPORT CORRUPTION," along with a number for the New York State Public Corruption Task Force.

On Monday, Bharara may drive by those very signs as he makes his way to Albany for a series of events, including two speaking engagements. The crusading prosecutor's presence may be enough to make already-nervous Albany lawmakers break into a cold sweat.

The most powerful people in Albany - lobbyists, legislators, and even Gov. Andrew Cuomo - have watched as Bharara has gone from prosecuting rank-and-file legislators to decapitating both houses of the legislature by securing the convictions of former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos on multiple counts of corruption. All the while Bharara has maintained investigations into Cuomo's dealings, with the prosecutor's mantra of "Stay tuned" casting a larger-than-life shadow.

Although he promised major reforms during his recent State of the State address, Cuomo has since avoided the press in Albany, continuing his streak of not holding a press conference at the capitol, now at over 200 days. The current majority leaders have also remained largely mum on ethics since the start of the year. Democratic Assembly Speaker Carl Heastie voiced support for various reforms early in January, but has said little since. His working group on Assembly rules and transparency continues to delay the release of proposals to make the body more open and democratic.

Republican Senate Majority Leader John Flanagan has pushed back against the very idea that there is any need for reforms, pointing to changes made over the last several years and asserting the need for individuals to act of high moral character.

Bharara has made it clear that he continues watching.

On Monday, Bharara will take something of an up-close look, as he heads to Albany for several events and speaks publicly twice. The first speaking event will take place a short walk from the capitol building when Bharara addresses the New York State Conference of Mayors; the other hosted by good government groups and WAMC public radio--a veritable public radio empire that reaches across upstate New York and into Vermont and Connecticut. The topic for both events will, of course, be fighting public corruption. Bharara is also set to appear, along with Gov. Cuomo, at the swearing in of new Chief Judge Janet DiFiore.

Bharara will not be addressing the state legislature, even though he recently made the trip to Frankfort, Kentucky to discuss public corruption and the type of culture that allows it to fester in New York. Throughout his examination of New York state government, Bharara has not only found several examples of illegal activity, but he has also decried legally corrupt practices, such as the infamous "three men in a room" method of deciding virtually all important state policy.

Assembly Minority Leader Brian Kolb, a Republican, invited Bharara to address his conference, but Bharara's office prefered to address a bipartisan gathering. Kolb, in turn, wrote to the majority leaders of each conference in both houses, asking them to jointly invite Bharara to address the legislature as a whole. "They haven't even bothered to respond to my letter," Kolb told Gotham Gazette. "What are they so afraid of?"

Kolb, who will be speaking before Bharara on Monday at the mayors conference, said he hopes to hear more from Bharara on how the "three men in a room" power structure in Albany defeats transparency and allows corruption to fester.

"Mr. Bharara has asked 'Since when has it become acceptable for three men to decide everything?,' And I expect he will focus on that again. It's not about getting our way, but about asking questions about how things are structured, about payments, pots of money. Making sure our constituents are represented. I mean there was even that Skelos quote where he said, 'I control everything.' These guys have too much power," Kolb said.

John Kaehny of good government group Reinvent Albany is also interested in hearing Bharara attack the culture in Albany that might not necessarily be prosecutable.

"Hopefully he says: 'The real scandal is what's legal.'" said Kaehny, referring to what many, including Bharara, have said about Albany's usual ways of doing business.

"In Albany," Kaehny said, "the governor can give a bag full of taxpayer money to a big business and that business can give him a bag of money back, or a bag full via unlimited LLC contributions. All legal. Yet in New York City, it is a crime for people doing business with the city to contribute more than $400" to a campaign.

Among Kaehny's concerns are that law firms that represent state agencies and authorities can also lobby on behalf of private clients.

"It goes on and on," said Kaehny. "The conflict of interest is so baked into how Albany works that Silver tried to use it as a defense."

Bharara has addressed how Albany's culture has played into many of the cases he prosecuted.

"If you're one of the three men in a room, and you have all the power and you always have and everyone knows it," Bharara told an audience at New York Law School last January following Silver's arrest. "You don't tolerate dissent because you don't have to. You don't allow debate because you don't have to, and because the status quo always benefits you."

The three men in the room are the governor, Assembly speaker, and Senate president. For several years running, those men were Andrew Cuomo, Sheldon Silver, and Dean Skelos. Thanks to Bharara, both Silver and Skelos are awaiting sentencing on federal charges.

In his New York Law School speech, Bharara mocked "three men in a room," joking about what happens behind closed doors, asking whether women are allowed and wondering if perhaps it gets "a little gamey in that room."

But he quickly returned to the serious, saying that the elected officials end up getting "swept up in the power and the trappings, because you were never challenged, and because you can easily forget who put you there in the first place. And so I ask again, what kind of a system is that?"

Bharara also took the time to recognize the legislators in attendance--he didn't exactly honor them. "I see there are a number of elected officials here. And after yesterday I guess I have two theories as to why that might be. One might be that you knew I was taking attendance. And the other is that there are a lot of folks now looking for immunity," he said, in his typical wry manner.

That fear that Bharara is watching, that he is still working on unearthing new misdeeds, has paralyzed legislative leaders on a number of issues over the last year. Some have confided to aides and others that they aren't sure what Bharara is after, or who he has flipped to his side. Many note that there are clear connections between legislative action and campaign donations that are ripe for investigation. Legislators have also been put on notice regarding their abuse of per diem reimbursements, use of campaign cash for personal expenses, and other misdeeds.

It appears to many that Bharara started this year by giving Cuomo and legislators an opportunity to reflect on the gravity of the Silver and Skelos convictions and actually get to work on real reforms. A number of insiders see Bharara's announcement in January that he did not have enough evidence to indict anyone on the untimely end of The Moreland Commission on Public Corruption as a way to take some pressure off of Cuomo to allow him to take the initiative on ethics in his State of the State address. Those same insiders see Bharara's visit as a nudge to Cuomo and legislative leaders to actually deliver on reforms this year.

In his State of the State platform, Cuomo announced his intentions to see the LLC loophole closed, strict limits set on legislators' outside income, a public campaign finance system established, and other changes made to prevent corruption. Whether Bharara wades into any of those specifics is to be seen.

[Related: Cuomo Announces Ethics Plan to Questions of Follow Through]

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by David King, Albany editor, Gotham Gazette
     

Read more by this writer.

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Bharara Visits Capital He Upended Sun, 07 Feb 2016 21:57:03 +0000
The Week That Was in New York Politics, Dec 7-11 http://www.gothamgazette.com/?id=6031:the-week-that-was-in-new-york-politics-dec-7-11 http://www.gothamgazette.com/?id=6031:the-week-that-was-in-new-york-politics-dec-7-11 week in review bus readers

photo: Stanley Kubrick via Museum of the City of New York


Gotham Gazette's Week in Review, Friday 

PHOTO OF THE WEEK: Mayor de Blasio signs legislation creating the city's new Department of Veterans' Services, via Joe Bello, @NYMetroVets

BdB vets joe bello

TOP FIVE STORIES OF THE WEEK:

1. Skelos Guilty: Former state Senate Majority Leader Dean Skelos and his son, Adam Skelos were found guilty on eight counts Friday. They will be sentenced in March. [Read: Tenant Activists Trace Road to Corruption Trials, Eye Elusive Reform]

2. Security Guards for Private Schools: On Monday, the City Council passed a controversial bill to provide public funding to private and religious schools to pay for security guards. $19.8 million will be spent to place at least one security guard at every private school in New York City with at least 300 students that wants one. Mayor Bill de Blasio is expected to sign the bill into law.

3. Cuomo’s Common Core Overhaul: A task force created by Governor Andrew Cuomo issued a report Thursday which found that the state made a number of mistakes in its implementation of Common Core learning standards and recommended reducing the tendency to “teach to a test,” giving shorter tests, and not linking test results to teacher evaluations until the 2018-2019 school year.

4. Housing Developments: The Staten Island Borough Board became the fifth to vote against Mayor de Blasio’s zoning amendment proposals on Thursday, adding to the significant criticism the plan has received from community and borough boards. Creating more affordable housing is a signature issue for the mayor determined to make New York City more equal, and de Blasio's administration is now prepared to devise a new strategy to regain momentum and secure support for a plan they believe has been poorly understood. On Thursday, AARP endorsed the mayor’s plans (it has 750,000 members in New York City), adding to two significant union endorsements the plans have recently received. [Read: Mayor & Speaker: Rezoning Plans Will Change Before Council Vote & Next Steps for the Mayor’s Controversial Zoning Proposals]

5. Public Housing Problem: A New York City Department of Investigation report found that the NYPD’s “systematic failure” to communicate required information to the city’s public housing authority, NYCHA, is partially responsible for the disproportionately high crime rates that have plagued public housing projects. In response to the report, the NYPD will create an interactive database to improve information sharing about criminal activity in public housing with NYCHA officials.

THIS WEEK'S NUMBERS:

  • 4,000-plus inmates are currently in solitary confinement in New York, despite vows by officials to limit its use, the Daily News reports.
  • 4,747 stop-and-frisks were recorded in New York City in July, August, and September - the lowest quarter since the numbers were first released in 2002, according to NYPD statistics.
  • 93% decrease in the number of stop-and-frisks between 2011 and 2014, according to a report released by the New York Civil Liberties Union.
  • 797 fatal drug overdoses were recorded by the city Health Department in 2014, the most since 2006, the New York Post reports.
  • 20% increase in annual state spending for nonprofits is needed in order to fund a $15 per hour wage floor for nonprofit human services workers, according to a report released by the Federation of Protestant Welfare Agencies, Fiscal Policy Institute and the Human Services Council.
  • 75% of incidents the FDNY responded to in 2014 were medical-related calls, and only 5% were fire-related, though a vast majority of the FDNY's resources are devoted to staffing fire units, according to a report from the Citizens Budget Commission.
  • $12 million will be added to the city’s budget to increase job training programs for homeless individuals in the shelter system in 31 shelters across the 5 boroughs, the Daily News reports.
  • 6,217,621 people rode the subways on October 29, 2015, according to the Metropolitan Transportation Authority - about 50,000 more than the previous record reached last year.

THE GLORY AND THE GOAT:

It was a good week for supporters of raising the minimum wage, as a state appeals board upheld Governor Cuomo’s planned increase to a $15 per hour minimum wage for fast food workers, disputing arguments that certain factors weren’t adequately analyzed before making the decision to raise the wage.

It was a bad week for Anthony Mangone, a former attorney whose cooperation aided in the conviction of three New York state senators, who was sentenced to 18 months behind bars this week after a judge said the “dirty lawyer” had committed crimes too serious to escape incarceration.

THE FLASH:

Around this time 40 years ago, on December 9, 1975, President Gerald Ford signed a $2.3 billion seasonal loan authorization to prevent New York City from having to default.

Around this time 74 years ago, on December 7, 1941, in the panic that ensued after the Japanese attacked Pearl Harbor, Japanese nationals living in New York were rounded up by FBI agents and held on Ellis Island. They were later transferred to internment camps for the remainder of the war.

Around this time 22 years ago, on December 7, 1993, Colin Ferguson opened fire on a Long Island Rail Road train, killing six passengers and wounding 19 others. Days later, a New York Times editorial called for stronger gun control laws in response to the murders, pointing to the ease with which Ferguson obtained a handgun in California, which had one of the country's stricter gun laws at the time.

GOTHAM GAZETTE HIGHLIGHTS OF THE WEEK:

Resignation Highlights City Council Gender Imbalance, by Ben Max

Cuomo Urged to Sign Executive Transparency Bills Before Looming Deadline, by David Howard King

Next Steps for The Mayor's Controversial Zoning Proposals, Christian Zhang

Tenant Activists Trace Road to Corruption Trials, Eye Elusive Reform, by David Howard King

Little-Known Commission Expands Access to City Government, by Meg O’Connor

Hearing to Examine ‘Efficacy’ of City Response to ‘Homelessness Crisis’, by Ryan Brady

In Zoning Amendment, One Size Does Not Fit All, by Council Member Donovan Richards (opinion)

Harmful Legal Reform Is Not an Ethics Solution, by Joanne Doroshow (opinion)

Give Police Tools to Reduce Arrest and Improve Community Health, by Chelsea Davis (opinion)

Public Money Is For Public Schools, by Ayishah Irvin (opinion)

MORE FOR THE WEEKEND:

Mayor de Blasio spoke with Errol Louis on NY1's Inside City Hall on Wednesday to discuss his first two years in office, and spoke about the city’s homelessness crisis, his affordable housing plan, and more.

An in-depth report by ProPublica’s Marcelo Rochabrun and Cezary Podkul reveals that city and state regulators stood by as developer Two Trees Management disregarded laws requiring rent stabilization in exchange for the large property tax break it received.

Politico New York’s Bill Hammond writes that Cuomo is making excuses about not doing anything to stop Albany’s ongoing culture of corruption, and argues that there are many glaring weaknesses left in New York’s anti-corruption laws.

 

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NOTE TO READERS: we hope you enjoy this new Gotham Gazette weekly feature - please share it if you do; on Twitter, use our handle @GothamGazette.

If you have feedback on this feature for us, you can email editor Ben Max: bmax@gothamgazette.com

Watch Sunday evening for our latest Week Ahead in New York Politics, which gives you a preview of key issues and events to be aware of for the week about to start. In the meantime, catch up on the latest original reporting from Gotham Gazette here. And have a great weekend!

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by Meg O'Connor and Ben Max

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The Week That Was in New York Politics, Dec 7-11 Fri, 11 Dec 2015 18:25:28 +0000