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Criminal Justice

Batterers, Their Victims and the Right to Confront Witnesses


photo courtesy of JR Goleno
Photo (c) 2005 JR Goleno

When Jimmy Byrd went on trial for nearly murdering the woman he lived with -- the mother of their young daughter -- the victim did not appear in court and Byrd's lawyer never cross-examined her. Byrd was convicted anyway. This, he said, violated his constitutional right to confront witnesses. The trial judge disagreed and now, so has the Supreme Court Appellate Division in Manhattan.

Byrd had abused Jill J, as the victim is identified in court papers, physically and mentally for many years. On July 26, 2002, he became enraged when she poured water into a glass in which there was a residue of juice, an action that, in Byrd's view, demonstrated her incompetence. The evidence established that he slammed her head on the tile floor, repeatedly stomped on her abdomen, breaking her ribs and causing her pancreas to split in half. He then refused to take her to the hospital. The police were not called, and it was only when Byrd left the house six days later that Jill J managed to get herself to the emergency room, nearly dead. Surgery saved her life.

After Jill J gave her testimony to a grand jury by videotape while in the hospital, Byrd, who had already been arrested, was indicted, charged with attempted murder and assault, and held at Riker's Island. But as frequently happens in domestic violence cases, Jill J refused to cooperate any further with the prosecution, deciding that she loved Jimmy Byrd and that perhaps he needed help, but not punishment.

The question to be decided by Justice James Yates was whether her refusal to testify was a decision Jill J made of her own free will or under duress from Byrd. Criminal defendants do have an almost absolute right under the Sixth Amendment to hear and see their accuser's testimony and to have that witness cross-examined by the defense. There is, however, an exception. If the accused himself is responsible for the witness's refusal to come forward, he cannot then use that to his own advantage. He cannot both cause the witness to recant or retreat and then say that, without her testimony, his conviction is unconstitutional.

In this case, People v Byrd, Jill J testified at a pre-trial hearing that she wanted to forgive Byrd and did not want him to go to prison. However, she also admitted, after first saying he had only called her a couple of times, that he had been calling her regularly from jail, sometimes as often as 10 times a day, asking her to send him money and proclaiming his love for her, telling her how wonderful life would be when he got out. All of this violated an order of protection, which prohibited Byrd from contacting Jill J.

The court allowed an expert to testify in front of the trial jury that these were typical interactions in cases of domestic violence and battered woman syndrome. (The appellate court, perhaps for reasons of political correctness and notions of gender neutrality, refers to the battered person syndrome, but the literature on the subject does not, since the victim is almost always the woman.) Jill J fit the profile of a battered woman. She is isolated, fearful and emotionally dependent and vulnerable to her tormentor's protestations of love and remorse, which, she believes, will end the cycle of violence. She is therefore willing to believe that it is better not to testify against this man and have him taken from her. If only he can come home, she believes, there will be peace and harmony and a happy family life, though that has never existed before. In fact, although not part of the appellate opinion, court records show that Byrd had a history of violence with other women.

Dr. Ann Burgess, a recognized authority on violence and victim counseling who testified for the prosecution, told the jury that the victim's poor self esteem, frequently a result of her batterer's treatment of her as well as her fear of him, often makes the battered woman believe that it is better not to continue the prosecution. While there was no evidence that Byrd actually told Jill J not to testify against him, Jill J had received more than 400 calls from Byrd while he was held at Riker's Island, and so, according to Burgess, was under his "coercive control."

Burgess described the three stages of domestic violence: the tension building phase, the violence phase and the honeymoon phase. It is during the honeymoon phase, Burgess said, that the victim is "seduced into believing that the abuse will cease and that the family will remain intact. This cycle repeats itself over many years."

Justice Yates found that Jill J's unavailability to testify was a direct result of the defendant's misconduct and allowed the videotape of her grand jury testimony to be shown to the trial jury. Byrd, who did not present any witnesses or evidence, was convicted of first and second degree assault.

An opinion by Justice Karla Moskowitz, newly appointed to the appellate bench, affirmed that decision. According to the opinion, the defendant procured the witness's refusal to testify "through violence, threats or chicanery," and it was established that Byrd's actions following his arrest showed a pattern meant to, at least in part, silence the witness. The court concluded that Byrd had therefore forfeited the constitutional right to confront his accuser and to raise certain other legal objections.

Emily Jane Goodman is a New York State Supreme Court Justice 

The High Price of Counterfeit Goods


Despite police raids, Chinatown shoppers still find counterfeit goods.

The results of last month's Chinatown raid were dramatic: over $1 million in seized counterfeit goods, 32 illegal vendors closed down and an entire block emblazoned with orange "closed by court order" stickers.

"Whoever you are, whatever you are, we are going to shut you down," Mayor Michael Bloomberg announced at a news conference.

Yet only a few days later a visitor to Canal Street could easily purchase fake Gucci bags and other brand-name products, a testament to the deeply rooted nature of the counterfeit trade. A Daily News headline said it all: "Chinatown block shuttered in huge raid, but brassy bootleggers still hawk fakes."

Welcome to the wild world of counterfeiting, which nets $23 billion in New York City annually and enriches a shadowy international underworld of smugglers and criminals - all supported by shoppers looking to save a buck.

"Knock-Off Incorporated"

About 8 percent of the approximately $287 billion in counterfeit goods sold in the United States annually is sold in New York City, resulting in over $1 billion in lost tax revenue, according to a 2004 report released by New York City Comptroller William Thompson. Counterfeiting also represents a drag on the economy: An estimated 750,000 jobs have been lost in the United States to counterfeiters, according to the United States Customs and Border Protection Agency.

New York City is one of the world's chief counterfeit hubs. In addition to being a major tourist and retail destination, the city's ports handle 13.4 percent of U.S. container traffic, providing ample opportunities for illegal shipping. For example, last December, the New York Times reported that federal officials seized over $200 million in smuggled goods at the Port Newark-Elizabeth Marine Terminal in New Jersey, including counterfeit Nike Air Jordan sneakers listed as "refrigerated noodles" on the ship's manifests.

Most counterfeits come from China, where experts believe that anywhere between two-thirds and 85 percent of all fake goods are manufactured. According to Caroline Joiner, executive director of the Global Intellectual Property Center at the U.S. Chamber of Commerce, a quarter of China's non-farm workforce, or 35 million people, are engaged in the production of counterfeits. Many work the so-called "ghost," or third shift, in which factories produce two shifts of legitimate items but stay open overnight to produce counterfeit goods.

These goods are typically shipped to wholesale vendors in the United States and other Western countries, and then distributed to smaller-scale street vendors like those in Chinatown. Sales of other goods like knock-off drugs and auto parts may bypass the street-level vendor and go directly to the consumer, who often does not know they are buying a fake.

"There are very powerful market forces at work here" said Moises Naim, the editor of Foreign Policy Magazine and the author of Illicit: How Smuggler, Traffickers and Copycats are Hijacking the Global Economy. "There are hundreds of millions of hungry customers and hundreds of thousands of very sophisticated entrepreneurs."

While most people associate counterfeiting with high-profile brand-name goods like Gucci bags, virtually everything we consume today is traded illegally. That includes "boot-leg" electronics, illegally downloaded music, toys, pharmaceutical drugs, software and even fake auto and airplane parts. Author Tim Phillips calls this thriving trade in fake goods "Knockoff Incorporated," because it represents 7 percent of world trade, twice the size of Wal-Mart. "Arguably it's the business success story of the modern era," Phillips writes.

New York's Response

Bloomberg has won high praise from experts for his aggressive anti-counterfeiting enforcement efforts. Since 2003, the city has seized $60 million in knock off goods and collected $1.5 million in fines. A number of observers also credit the city with shutting down bootleg CD and DVD manufacturers in Manhattan's Garment District.

"People tend to sense what's OK by what is allowed to go on openly in public," said Brad Buckles, executive vice president of anti-piracy for the Recording Industry Association of America, which has led an effort to reduce music piracy. "Actions like Mayor Bloomberg took on Canal Street help make people realize that this is sleazy behavior and not legal."

Many observers believe that, aside from New York City, government agencies do not take the problem of counterfeiting seriously enough. Distracted by terrorism and other more traditional crime, law enforcement has little time or energy left to address this issue. "One intellectual property lawyer told me that he was told by law enforcement that unless there was a dead body involved, 'don't even pick up the phone'" writes Phillips.

In its Canal Street raid, the Office of Special Enforcement followed an innovative "landlord-based" approach that targeted the estate of Vincent Terranova, the owner of three buildings that housed the illegal vendors. The estate had been named in an earlier lawsuit filed in the Federal District Court in Manhattan by luxury good brands such as Burberry and Marc Jacobs, according to the New York Times. Before the raid, undercover police officers and city agents made over 40 purchases of counterfeit goods. The city obtained a temporary restraining order against Terranova Properties which keeps the building closed until proof is provided that there is no more illegal activity.

"This is the largest operation we've done," said Office of Special Enforcement Director Shari Hyman.

However, most experts agree that ending, or at least limiting, the sale of counterfeit goods requires more than a law enforcement approach. The key is to challenge the widely held notion among consumers that buying counterfeit goods is a victimless crime and a harmless exercise in bargain hunting. "Until we deal with the demand side of the equation, it's a lost cause" said Joiner.

"We need consumers to help us instead of burying their heads in the sand," said Commissioner Ray Kelly in a press release. "No matter how 'victimless' a crime may appear, when you scratch the surface you are bound to find some unpleasant realities. That's true in the knock-off trade."

Changing Minds

Arguments about lost tax revenues and jobs might not dissuade most individuals from buying a knockoff Gucci bag for $40 when the real thing can go for close to $2,000.

That's why advocates are trying to enlarge the discussion to a broader set of public health and safety issues. The goal is to "make the problem more real to consumers," said Joiner.

For example, according to the Office of Special Enforcement, the buildings housing the wholesale vendors often lack basic fire safety protections such as sprinkler systems. "These buildings violate every code in the book," John Feinblatt, the city's criminal justice coordinator, told the New York Times. "The exit signs are obliterated, or the fire exits are locked or blocked by boxes of merchandise. They're fire traps." In addition, for security reasons, customers are often carefully escorted in and out of buildings and locked into rooms while they search for items, making it a "frightening experience" according to Hyman.

Advocates also argue that knock-off goods, which are impossible to regulate, are also potentially life-threatening. Author Phillips called these "counterfeit killers," citing such examples as fake insulin used by diabetics and fake Lipitor, used by patients with high cholesterol levels. "Talking about medicine that can kill is a very different conversation than talking about the latest Britney Spears album," said Naim.

Anti-counterfeiting observers charge that counterfeit goods are often produced in factories that pay little attention to labor standards. "Raids in Asia in counterfeit plants disclose deplorable conditions that would boggle your mind," Lorne Lipkus of the Canadian Anti-Counterfeiting Network, told CBC News. "We're talking [about] four year old kids mixing chemicals in factories."

More broadly, advocates make a moral argument about counterfeiting, contending that what lies behind a seemingly innocent transaction with a street vendor could be a vast criminal enterprise. "The same groups which smuggle goods are also involved in prostitution, drug dealing and money laundering," Marc Ramondi, spokesman for the U.S. Immigration and Customs Enforcement Agency, told ABC News.

Still, it's unclear how widespread the counterfeit-criminal link is: The evidence presented tends to be anecdotal, perhaps a reflection of the shadowy nature of the business itself. The presence of the so-called "ghost" shift in many Chinese factories also points to an increasingly blurry line between knock off and "legal" manufacturing. Many of the social harms attributed to counterfeit production are also present when the rules are being followed, as evidenced by such high-profile cases as tainted pet food and reports of child labor in factories making Nike shoes.

Nonetheless, the Chamber of Commerce is actively wading into the public relations battle. They helped underwrite a documentary version of Naim's book Illicit, which will premier on public television on April 16. Naim hopes that the documentary will help spark a broader dialogue about the negative impacts of counterfeiting and illicit trade. "We need to change the conversation at dinner tables in America," he said. He sees the debate on global warming as analogous to what he wants to accomplish. "Five years ago, people talking about climate change were often laughed out of the room. Now it's skeptics who are getting the same treatment."

New Approaches

At the same time, business groups have responded by pursuing a number of new anti-counterfeiting strategies.

One approach involves technology. Kodak, for example, markets a "traceless" system that embeds invisible markers into labels that can only be detected by specialized readers. The technology is already being used by drug companies and high-end wineries to reduce fraud. "In fighting counterfeiting, it's better to call your scientists and engineers than your lawyers and lobbyists," Naim said.

The recording industry provides an interesting example of an attempt to target counterfeit consumers directly, though their experience defies any simplistic analysis. Industry groups have pursued an aggressive enforcement strategy, sending out thousands of so-called "pre-litigation" letters to college students illegally downloading music. The letters are first forwarded to universities, which are asked to pass along the information to students. The main impact of these letters has been the wave of publicity they have generated, particularly in campus newspapers. According to industry documents, the strategy has had an effect: The number of young people downloading music without paying has declined from 53 percent in 2004 to 30 percent in 2007, while the percentage of young people who say that downloading music for free is illegal has increased from 37 percent to 73 percent. According to surveys, fear of lawsuits is the reason most often cited by young people as the main reason they no longer download music or videos illegally - even though the likelihood of any individual being sued is very low.

It is still, though, relatively easy to download free music from the Internet illegally. Though the music industry succeeded in shutting down Napster, the most popular early distributor of pirated music, hundreds of smaller and harder to detect sites have grown up in its wake.

Fighting counterfeiting is an uphill battle, particularly when its victims lack the deep pockets of such groups as the recording industry. "The numbers are moving in the wrong direction," said Joiner. Ultimately, convincing bargain-loving New Yorkers that counterfeiting poses hidden costs may be a tough sell.

 

Delving the Murky World of Police Informants


It all started with a careless conversation between two police officers.

Last September, Brooklyn South narcotics officer Sean Johnstone told a fellow officer that he had paid his confidential informants with cocaine illegally seized from a crime scene. What Johnstone didn't realize, or had forgotten, was that his conversation was being recorded.

The ensuing internal police investigation has resulted in an embarrassing spectacle for the New York City Police Department and the Brooklyn South narcotics division, which includes Park Slope, Midwood and Coney Island and made 7,400 arrests in 2007. Four officers, including Johnstone, were arrested for illegally providing drugs or money to their confidential informants, while another dozen were suspended or transferred to other duties. The disclosures forced the Brooklyn District Attorney's Office to dismiss charges or vacate convictions in 183 cases, and a new commanding officer was appointed to run the department's narcotics unit.

The revelations focused attention, if only briefly, on the murky world of police and their informants. While giving informants drugs is clearly illegal, a far more contentious debate involves the use of confidential informants even when proper police procedures are being followed. Civil libertarians and legal scholars argue that the practice leads to false convictions, shoddy police work and an erosion of trust in high-crime, low-income communities. On the other hand, experienced prosecutors and police officers contend that, however distasteful the practice, informants are an invaluable investigative tool and that suggestions for reform would limit the effectiveness of the police while having the unintended effect of driving the officer-informant relationship further underground.

The scandal has given renewed life to legislation introduced last year by Brooklyn State Assemblymember Joseph Lentol, which would require law enforcement agencies to publicly disclose information about the use and effectiveness of confidential informants. The legislation would also limit the ability of prosecutors to drop or reduce certain types of charges in exchange for informant information.

The Brooklyn Scandal

Over the last 30 years, police departments have introduced safeguards in an attempt to protect the integrity of the narcotics enforcement process. With some notable exceptions, the kind of brazen corruption depicted in films such as "American Gangster" and "Serpico" appears to be a thing of the past.

Typically, undercover officers who seize drugs or money are not allowed to register the contraband on their own. Instead, a backup team of officers, with a supervisor, is supposed to lead the vouchering process.

Police departments also have procedures in place for the payment of confidential informants. To High Point, North Carolina Police Chief Jim Fealy, a nationally recognized innovator in narcotics enforcement, the "industry standards" include a careful accounting of the amount expended, along with a requirement that payment is made by no less than two officers. Often a supervisor will randomly accompany the officers to make sure the procedures are being followed and to confirm the informant's identify. At regular intervals, internal affairs officers will audit the books to confirm that all the information adds up.

These procedures appear not to have been followed in Brooklyn. According to reports, two of the four officers arrested on corruption charges in Brooklyn registered 17 bags of cocaine during a drug raid, instead of the 28 bags they had actually recovered, while the other two held back two bags of cocaine and $40. In both instances, the extra drugs and money were used to pay off informants - making it what a law enforcement official called "noble cause corruption."

Many observers expressed their bewilderment at the officers' actions. "Anybody who would do something like that is nuts - completely nuts," one former narcotics undercover officer told the New York Times. "Why would you give the [informant] crack and drugs if you can give them money?"

The most likely explanation is a combination of laziness and lax management. Two of the four arrested police officers worked the night shift, when there tends to be a more relaxed attitude toward procedures. Given the wholesale leadership changes in Brooklyn - four high-level police commissioners, including the head of the department's narcotics division, were transferred - appears that the New York City Police Department is laying a good portion of the blame at the feet of inattentive management.

"What it looks like to me is that these guys took a shortcut and shortcuts will get you in trouble and shortcuts will get you in jail," Raymond Abruzzi, a former high-ranking police officer, told the New York Times.

Fealy praises the department for dealing with the problem internally. "Even in a very good police department, occasionally bad things will happen" he said. "What citizens should look for is a police department that acknowledges [the problem] and deals with it."

A Widespread Practice

Whatever the public thinks of the going-on in Brooklyn, many legal scholars and advocates believe that public outrage should be directed at the mundane, day in and day out grind of recruiting and employing informants, particularly in low-income, high-crime communities hit hardest by the drug trade.

Observers distinguish well-intentioned citizens who provide tips to the police from individuals who co-operate for less noble reasons. In their view, the police get in murky territory when they deal with individuals seeking to settle a score against a former boyfriend or business rival, bargain their way out of an arrest or make a little money. That said, it's almost impossible to prosecute certain types of cases, particularly narcotics cases, without turning to informants who are looking for a break or a buck. "It's not the only way, but it's the easiest way to gain access" to drug markets, said Fealy.

Little is known about the number of informants employed by law enforcement agencies. At the national level, the Federal Bureau of Investigation reports that it employs 15,000 secret informants and the Drug Enforcement Administration about 4,000 at any given time. State and local law enforcement agencies do not report similar information publicly, though most departments, including New York's, keep internal databases that track contacts with informants.

This lack of information has led to widely varying estimates of the total informant population. Loyola Law School Professor Alexandra Natapoff figures that one in 12 black men in poor black communities are active informants at any given time, although she acknowledges that can vary widely from one city to another.

"In some cities, if you believe what the police and prosecutors say, it's not in the culture to use snitches," she said, "while in other places, it's absolutely par for the course."

Experienced law enforcement officials dispute that finding, at least at the local level. For example, Lt. Rudy Tai of the San Diego Police Department, who worked as a supervisor in a narcotics unit, estimates that the average narcotics officer works with between one and three informants.

Generally, federal law enforcement agencies seem much more likely to rely on informants than do local agencies. Under federal sentencing guidelines, cooperating with authorities is the only recognized basis for sentencing leniency, and according to Natapoff, approximately 20 percent of federal offenders -- 30 percent of drug defendants -- received credit for cooperation. And these percentages understate the total volume, because many informants do not receive credit for their information and others have their charges dropped before they reach court.

Local law enforcement agencies are much more cautious about the use of informant information, and many do not allow informants to testify in court. Instead, they are more likely to ask informants to help make a case, such as by introducing an undercover officer to a drug dealer. Experienced officers say that the key is getting independent verification of the information provided.

The Pitfalls of Informants

Critics argue that an excessive reliance on informants leads to lazy police work and has poisoned relationships with residents of low-income, high crime neighborhoods. In the online journal Slate, Alexandra Natapoff wrote that in one view, "criminal snitching is a Frankenstein's monster that has turned on and begun to consume its law enforcement creator."

Natapoff cited one case dropped by prosecutors after the Brooklyn South scandal erupted. An undercover officer had purchased large amounts of cocaine from a dealer, who was later arrested. However, the undercover team working on the case failed to get the drug sale on videotape. When the prosecutor realized that one of the officers involved in the corruption scandal was on the team, she was forced to drop the case.

"The ease of using informants has undermined other traditional law enforcement techniques like undercover work and surveillance," said Natapoff.

Law enforcement officials bristle at that characterization. "I don't see [using informants] as lazy policing," said Fealy. "What are we supposed to do, ignore the information they give us?"

Establishing the bona fides of a confidential informant can be painstaking, requiring a background check and a "test run" purchase of drugs or guns. "A lot of detectives would rather not be involved with informants because it takes a lot of hard work," said Tai. "It's a challenge to recruit good ones."

Many police officers and prosecutors, however, express qualms about aspects of the relationship with confidential informants. They realize that even the small amounts of cash they give informants are often used to buy drugs. Another troubling dynamic is that the police may overlook crimes committed by informants. "Informants may well produce more criminal activity on any given day than they prevent," wrote Natapoff.

The swirl of charges and counter-charges about the use of confidential informants may obscure a counter-intuitive reality about policing in urban communities. Despite skyrocketing incarceration rates, particularly of young African-American men, the problem confronted by most citizens in high-crime areas is police under-enforcement of the law, not over-enforcement. That dynamic was particularly evident in sociologist Sudhir Venkatesh's recent book Gang Leader for a Day: Despite spending nearly a decade hanging out with a drug gang in a Chicago housing project, Venkatesh rarely encountered the police.

To Natapoff, police use of confidential informants contributes to the under-enforcement problem, because the police regularly tolerate the criminal behavior of informants. One could, of course, also reach the opposite conclusion: Abandoning or curtailing the use of confidential informants could make the police even less effective in communities that need them the most.

Bringing the Practice to Light

Deciding which view is correct is difficult because so much about informants is, of necessity, hidden from public view. "It's all hidden," said Ellen Yaroshefsky of the Benjamin Cardozo Law School. "Confidential informants are like the black hole of the criminal justice system."

Lentol's proposed legislation would require law enforcement agencies to publicly disclose information about confidential informants, including the number employed, whether the tips provided led to a conviction or arrest and instances in which prosecutors offered to reduce or drop charges in exchange for cooperation. Individual informants would not be named. In theory, the "sunshine" provisions would give the public the chance to test the claims made by supporters and critics of the practice.

Still, it can be an uphill battle to convince the police of the value of openness and accountability. "I've had well-meaning police officers tell me, 'you're never going to get the police to report their snitches'" Natapoff said. "It's a reasonable concern. We have to give them room to do their job."

 



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