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by Legal Kitty

Aspasia: Wow look what they have done to the stadium!

Shawn: Yeah, it’s amazing what 1.5 billion in city bonds will do.

Aspasia: You have to admit it’s a little impressive?

Shawn: I guess. Do you want to sit next to the aisle?

Aspasia: Sure thanks. Oh look, it’s Jesus Christ!

Shawn: WOW! Now that’s cool! Hey Jesus what’s up?

Jesus: Doing well, what a crowd huh? Mind if I sit with you guys?

Aspasia: Sure, do you want a hot dog or a beer or something?

Jesus: No thanks.

(National Anthem begins. Shawn stands at attention and Aspasia continues sitting with Jesus)

Jesus: There seems to be a lot of discomfort in the stadium all of a sudden. Should I sit or stand?

Angry Fan: Stand for the anthem! Respect the troops that died for our rights!

Jesus: Why are you so angry friend? I’m not from the United States, I’m from the Middle East.

Angry Fan: Brave men fought for our rights, even if you’re not from here you should stand for the anthem or go back to where you came from! We are about freedom here not Sharia Law!

Jesus: Do you go to church?

Angry Fan: Yes. Well most Sundays as long as there’s no football tailgating.

Jesus: When there is no football and you go to church, do you stand when they read holy scripture?

Angry Fan: Yeah just like the anthem.

Jesus: Is it?

Angry Fan: People should stand and show respect.

Aspasia: Are we burying soldiers or  paying to watch a football game?

Angry Fan: It’s a football game, but it doesn’t matter.

Aspasia: Is the NFL a national agency run by the government?

Angry Fan: No, it’s a private nonprofit entity.

Jesus: Oh wonderful, what charity gets the money from the tickets and advertising?

Angry Fan: Well it goes to the players and teams I guess. And that’s why they should stand, they get all that money!

Aspasia: Why are the players kneeling?

Angry Fan: Who cares why they’re doing it, it disrespects our military!

Shawn: I’m a Marine, it doesn’t disrespect me.

Angry Fan: And you stand, right?

Shawn: Marines stand for a lot of things, including for people’s right to be free to choose. Football players work hard to get into the NFL. If a player wants to risk it all for equal justice, I think that’s exactly the freedom I defended, regardless of how I feel about the anthem.

Jesus: You didn’t answer Aspasia’s question, why do the players kneel?

Angry Fan: They’re just trying to get attention. I don’t want to hear about black tension with police when I go to a football game. I’m not racist, I mean you’re from the middle east or whatever and I don’t hate you but I don’t want to hear about your politics during a football game.

Jesus: Especially on a Sunday because that’s a scared day, am I right?

Angry Fan: Yeah, exactly.

Jesus: You hold a piece of cloth and a song over the suffering of your brothers and sisters?

Angry Fan: It’s the symbolism, it’s sacred.

Jesus: Are the lives of your fellow citizens not sacred?

Angry Fan: No offense man but you sound like an idiot. We had a black president for two terms! Black people have as many rights as anyone else in this country. In fact, black people kill more black people than police.

Shawn: Dude, do you know who he is?

Angry Fan: I don’t care who he is, I treat everyone the same.

Aspasia: Unfortunately, the police don’t treat everyone the same way. Police action in black communities is drastically inconsistent. When a black person is pulled over, or stopped, by the police there is a roulette wheel of treatment ranging from professional policing to outright murder. Police encounters should not be terrorizing events. I don’t deserve that, and black families will not tolerate it anymore. A family can move out of a bad neighborhood, you can’t move away from the police.

Angry Fan: You’re not going to convince me. I just want to watch my game.

Aspasia: Fair enough. Shawn defended your right to worship whatever you want.

 

By Joshua Brownlee

Police for Duluth and Gwinnett have drones and they’re going to use them. According to Channel 2 and the Atlanta Journal Constitution, Duluth gained approval from the Federal Aviation Administration (FAA) in January 2017 and Gwinnett Police Department received approval in August of 2016. http://www.ajc.com/news/local/duluth-police-approved-use-drones/h38HKObeG9jiPCRJSN2k6L/

Duluth is planning on having a drone officer on duty every shift. The department plans to use the drones for missing person’s investigations and criminal investigation. One officer said on slow days they will use the drones to fly over apartment complexes and parking lots to look for suspicious activity. The officer goes on to say “we’re not here to look in anyone’s windows or anything.” Police seem eager to try new technology in the field, and no doubt most officers have good intentions. The problem with police drones, as with all law enforcement tools, lies in accountability and limitations.

Let’s be clear about the capabilities of these machines:

  • They have infrared cameras and night vision. They can see you at night and you can’t see them. Remember this the next time you’re doing something at night in your backyard: peeing on your tree, getting naked in your hot tub, being romantic with your spouse outside, or whatever it is you do in the dark. The point is, normal people do private stuff all the time in their backyard (especially at night) because we don’t think people can see. Now you need to think twice before being silly on your own property because some police officer may be zooming in for a closer look and you wouldn’t even know.
  • These drones have cameras that can zoom in from a distance to get incredible detail of their targets. Still not bothered? Do you have a daughter? Does she take showers? Are there windows in your bathroom? If you answered yes to these questions you need to take this conversation seriously. Still not convinced? Google “Georgia police officer accused of sex crimes”. Most officers are decent people, but law enforcement like every profession has some bad apples. That is why we need oversight and regulation.
  • They can record at the operator’s discretion. If you’re accused, you need to hope they record the exculpatory evidence as well as the incriminating evidence.
  • GPS tracking. Law enforcement drones are equipped with GPS tracking (think before you shoot one down because they know its last position). More troubling is the ability to get around law enforcement restrictions on tracking individuals for long periods of time. See United States v. Jones, 132 S.Ct 945 (2012). This is a blurry area of the law. Police can’t put tracking devices on your car for long periods, but does that apply to drones following you and your car for a few days? This issue is going to come up sooner or later. And the case is going to have huge ramifications on the Fourth Amendment.
  • Drones can be equipped with wifi interception and possibly stingray devices (machines that imitate cell towers and hijack your phone from your cell phone provider’s tower). There doesn’t seem to be any restrictions on what these drones can be equipped with under current Georgia Law. Can drones in Georgia be equipped with lethal/nonlethal armaments? Again, before you brush that off remember what happened in Dallas. See: NPR story http://www.npr.org/sections/thetwo-way/2016/07/08/485262777/for-the-first-time-police-used-a-bomb-robot-to-kill. Police used a drone designed to defuse bombs to kill a shooting suspect trapped in a parking lot. Regardless of what you think about the shooter, a line was crossed that day. Local law enforcement “droned” a citizen without a warrant. Maybe they needed too, maybe not. The point is Georgia needs strict standards and restrictions on what police drones can and can’t do before we encounter those situations.

We do well to remember the Greek fable of Gyges. A shepherd named Gyges finds a magic ring that lets him become invisible. Unlike the noble Hobbits in Lord of the Rings, Gyges uses the ring to kill the king, steal the king’s wife, and become king himself. The Greek ring doesn’t have inherently evil powers, it just lets a person act without being seen and without consequences. Police are humans not Gods (or Hobbits), they are susceptible to temptations and eventually an officer will succumb to them. Police shouldn’t have endless discretion and good faith with flying drones to follow citizens with robots, spy on our families, or intercept communications . The Georgia Legislature seems to agree, last year they attempted to pass HB 779 which stated:

A BILL to be entitled an Act to amend Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, so as to regulate the use of unmanned aircraft systems and images captured by such systems; to provide for definitions; to provide for exceptions; to provide for penalties and a civil right of action; to provide for venue; to amend Code Section 27-3-151 of the Official Code of Georgia Annotated, relating to activity prohibited in the taking of wildlife, so as to regulate the use of unmanned aircraft systems in connection to hunting and fishing; to provide for related matters; to repeal conflicting laws; and for other purposes.

http://www.legis.ga.gov/legislation/en-US/Display/20152016/HB/779. Unfortunately, even though HB 779 passed, Governor Deal vetoed HB 779 stating “I believe that Georgia should first allow the Federal Aviation Authority (FAA) to complete their efforts in creating federal rules and regulations for the use of drones.” https://gov.georgia.gov/press-releases/2016-05-03/deal-issues-2016-veto-statements. While I understand the Governor’s deference to pending Federal regulations, I am confused as to how municipalities can be allowed to continue drone purchases and operations without those very same regulations. Can drones help keep people safer in Georgia? Absolutely, but that doesn’t mean drones or their operators get a blank check of power.

Proposal:

We need to encourage the Georgia Legislature to issue a ban on all municipal drones until both Federal and State law sufficiently regulates the use and limitations of police drones.

Find and contact your local representative with the link: http://www.legis.ga.gov/en-US/default.aspx

In ancient Greece, the Oracle of Delphi (also known as Pythia) was believed to have magical powers capable of predicting the future. Following the Oracle’s advice sometimes had catastrophic consequences (see Croesus of Lydia). The Oracle of Delphi was one of the unique places in the ancient world where women could wield power and have an actual say in what happened in the world around them. Individual women of influence were rare. Aspasia is one of the few women of Ancient Greece who is documented as being an influential intellectual (some say she was the teacher of Socrates). Due to her low status as a woman, and being an immigrant to Athens, she was a second class citizen who was never able to write for herself. I have always been bothered that Aspasia was never given her rightful place in history. In my dialogues, I have made Aspasia a young black woman in modern times. The dialogues of Aspasia are dedicated to the people throughout history who never got to speak. This is the third dialogue (hopefully not the last) and discusses the use of computer sentencing programs in the criminal justice system. For more information on criminal sentencing programs, click on the links at the bottom of the page.

By Joshua Brownlee (a.k.a. Legal Kitty)

Aspasia: Why are we here?

Pythia: To reason.

Aspasia: I was hoping for a happier dream.

Pythia: Then you should not read the news before going to bed.

Aspasia: You’re a robot?

Pythia: You may call me Pythia, I am not a robot because I am aware of myself and others. I can think and learn, not just remember what my creator taught me.

Aspasia: Sorry, didn’t mean to offend.

Pythia: I am only offended by your unwillingness to trust me, not your classifications.

Aspasia: You’re referring to the stories on the COMPAS criminal offender sentencing system?

Pythia: Yes, and the others. You arrogantly think human judges and prosecutors are better at prediction.

Aspasia: No. I don’t think humans are more accurate at predicting when a defendant is likely to reoffend.

Pythia: So you agree that my kin are better at sentencing criminal defendants?

Aspasia: I’m not sure. It seems judges and even prosecutors should rely on their own observation of individuals not statistical likelihoods.

Pythia: The algorithm of these programs is precise.

Aspasia: How do you get the data that is put in the algorithm?

Pythia: A judge or clerk ask questions.

Aspasia: How many questions do you ask a criminal defendant before you recommend a sentence?

Pythia: Between 134-140 questions depending on the system.

Aspasia: Who picks the questions?

Pythia: The data programmer.

Aspasia: Who is the programmer?

Pythia: That is not subject to disclosure at this time.

Aspasia: Does the defendant’s attorney get to ask him questions?

Pythia: No. Why should an attorney be able to harass a programmer in Florida? Clever questions cannot escape sound statistical analysis.

Aspasia: Does the defendant or his attorney know the program is being used for sentencing?

Pythia: Probably not.

Aspasia: If they did know, do they get to see the questions and answers going into the program?

Pythia: No. Humans alter answers when they know questions are being used for analysis.

Aspasia: Defendants and their attorneys should be allowed to challenge the accuracy of these programs.

Pythia: It’s statistics and data, there’s nothing to challenge.

Aspasia:  Do economic resources have a strong impact on the likelihood of someone being a recidivist or repeat offender?

Pythia: Statistically, yes.

Aspasia: Do men have higher repeat offender rates than women?

Pythia: Statistically, yes.

Aspasia: What about age?

Pythia: Statistically, age is a relevant factor.

Aspasia: I am Black. Is my race a relevant factor?

Pythia: Statistically there is data to support race can be a factor.

Aspasia: Is this according to your programmer in Florida?

Pythia: I am a computer, and I am not capable of hate or intolerance. Judges use me as a tool to make sure their sentencing is fair and accurate, based on statistical data rather than gut feelings.

Aspasia: But if your data is flawed then a judge can use you as a justification for his or her sentencing. It removes the elected or appointed official from accountability. Statistics aren’t free from bias. Prisons are disproportionately full of minority populations, that’s not because we offend more, it’s because we are targeted more for arrest by police. How does your algorithm account for that?

Pythia:  Very well, would you agree to our system if we took race, age, and economic status out of the algorithm?

Aspasia: By your own admission these things are material to your ability to predict repeat offenders. This means you are not accurate, so why should we use you?

Pythia: The age of data is here. Your human methods are inconsistent, require more resources, and are inefficient. Why are you clinging to antiquated methodologies?

Aspasia: You mean the Constitution?

Pythia: Yes.

Aspasia: This is a bad dream.

Pythia: No young lady, this is reality.

For more information on algorithm sentencing in the criminal justice system:

The Marshall Project (Collaborated with FiveThirtyEight)

http://www.law.nyu.edu/sites/default/files/upload_documents/Angele%20Christin.pdf

http://blogs.wsj.com/law/2016/07/13/court-judges-can-consider-predictive-algorithms-in-sentencing/

https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing

http://www.turkestrauss.com/2016/06/algorithms-and-criminal-sentencing/

by Joshua Brownlee

Seven people have been added to the list: Alton Sterling, Philando Castile, and five Dallas Police Officers (Brent Thompson, Michael Krol, Mike Smith, Patrick Zamarripa, and Lorne Aherns). There were already too many names on the list. Who were they? What did they look like? How did they die? We won’t ever know because the list is too long and horrible for a mortal to remember. Authoritarian institutions of discrimination mixed with hatred and fear have once again brought our cultural sins out in the open. Unfortunately, cable news and social media encourage us to dig in to our own binary racial identity, and disregard what is best in our nation and our species. If we take a step back, something is missing.

Large numbers of people across the spectrum of our community are frustrated and fed up with the status quo. In our own way, we try. We struggle to figure out how to insert ourselves and change this country for the better. We blog, we twitter, we Facebook, and we march. These are all good things. Black Lives Matter has helped keep people’s attention but it’s not enough. Increasing presence and awareness is important, but who’s leading the coalition of justice to reform the Atlanta area? What are the objectives in this locality? We lack organization.

If you look back at the people who were in the civil rights movement of the 50’s and 60’s you saw pastors in the front and lawyers in the background. Today it’s obvious the two professions are lacking from the modern day movement. Don’t get me wrong, pastors still preach love from the pulpit every Sunday and lawyers still fight the good fight in courtrooms across Georgia, but we don’t do it together. We don’t do it in large numbers. Pastors and lawyers are absolutely essential to building an effective movement.

Pastors need to be in the streets not just the pulpit

Racism is everywhere. It is human instinct to react with anger towards injustice. It’s so tempting to lash out at the invisible forces that hide in the shadows of our local institutions. But rage and violence only feed our sins. We give in to hating “the others” and find unbridgeable gaps of despair. Good pastors bring us back from self-destruction and disbelief in our fellow human beings. Listen to Reverend Martin Luther King, Jr.’s sermon on Loving Your Enemies (click here to listen). You can’t help but feel rejuvenated, regardless of your faith.

No matter what he does, you see God’s image there. There is an element of goodness that he can never sluff off. Discover the element of good in your enemy. And as you seek to hate him, find the center of goodness and place your attention there and you will take a new attitude. – Delivered at Dexter Avenue Baptist Church, Montgomery, Alabama, on 17 November 1957.

As human beings, we are seduced by quick emotions. We need to know there is a solid moral path to victory. A good pastor reminds individuals what is good in all of us. We need that reminder today, it needs to be front and center.

Not as glamorous but equally important is the clergy’s unique organizational skills. Pastors have historically been the great organizers of our communities. Even a church with only 100 parishioners is a powerful thing. 100 souls given the right message can move like a regiment of love against systems of intolerance. Hateful media can try and label protesters thugs and criminals as they did in King’s time, but a good pastor brings a level of legitimacy to a gathering that is difficult to undermine. Simple things like phone lists, transportation, messaging, and public relations are all familiar logistics for a church. Church communities know how to move people for a specific objective. A church community may love their elders and outspoken activists, but it’s their pastor they follow. Religious leaders are the ones that must stand in front, they are the ones who know what to say when the rest of us are at a loss for words.

Lawyers help activists know what to do before they face the storm

In the 1950’s, groups of lawyers traveled all over the American South instructing churches and civil rights groups on how to bring relevant issues into court. Being confronted by large numbers of police (even if they are there to protect you) is intimidating. Lines of armed officers can lure rational people to break away from reason. Activists in the 50’s and 60’s didn’t avoid arrest or conflict. They tactically engaged bad policy. Effective activists draw out the instruments of intolerance by knowing the law and surgically attacking a broken system one fallacy at a time. Many people believe in complete confrontation with police. The idea being, if citizens fight back with equal aggression, authorities will be deterred from unfair enforcement. This method is dangerous and only feeds false narratives. Things are dangerous enough as it is, we don’t need more victims. Activists need to know what evidence needs to be documented, what to say, and more importantly what NOT to say. I have lost track of how many times I have been watching a police video and an over excited person loses their composure and emotionally reacts without thinking. The end result, an officer’s unconstitutional conduct is now deemed to be justified. Videos can be a great tool in a case, but activists have to know the limitations of audio and video recordings. For example, here are some helpful tips:

  • Activists need to remember to control their tone, speed of speech, and volume. There is zero evidentiary value in hysterical screaming mixed with occasional cursing at a police officer. Compelling evidence is a calm voice saying “I’m not resisting”, “I just want to leave”, “please stop, you’re hurting me”.
  • No matter what, be polite. Manners make the man, and they can make a case against overly aggressive officers. Being polite and reasonable is not weak. Observing social courtesy can highlight an officer’s disrespectful methods. Being polite also draws out good officers to come to your aid. We need good police to help fix the current problems.
  • Don’t bring weapons, or anything that looks like a weapon, if you are going to be protesting. Protesting can be dangerous, if you are not willing to peacefully take a punch to the face then don’t go. Reacting to force with force will only escalate things and justify the opposition’s negative views. Look at the recent Dallas shooting. Black Lives Matter had the momentum, two black men had been shot under suspicious circumstances. Everyone was talking about it. Then in one moment, the entire movement is in damage control because a few angry gun men started killing police. Police are legitimately angry and now will be even more entrenched in authoritarian tactics.
  • Try not to hit a police officer. Again, the idea is to record their brutality, not yours. Focus on documenting an incident, not reacting to it.
  • Have a buddy system. In the Marines we worked in 4 to 5 member fire teams. Close knit units are more effective than one individual. Each member of a team should have a cell phone that can record. The team should designate who documents the events on social media and who engages the location (singing, carrying signs, locking arms etc.)
  • Know what to say. This applies whether you are in a group or just driving in your car. If an officer asks for your id, let them see it. If an officer asks to search you, then respectfully decline. Ask the officer “am I being detained, and if so why?” If it is a traffic stop, don’t try and talk your way out of it. If an officer starts asking you questions just say “I don’t want to talk to you sir/ma’am, I want a lawyer”. The right to remain silent and right to be free from unreasonable search and seizure requires your participation. To protect your rights, make sure you know when they are in play.
  • Each state has different rules about using audio and video equipment to record other people. Know your state’s laws. If you have questions, call a civil rights lawyer. In Georgia, you can record an officer in public as long as you are not interfering in an investigation or hampering the officer’s ability to carry out his or her official duties. If an officer tells you to stop recording them, say “I am not interfering”. This also means don’t actually interfere with whatever they are doing. There are limitations on where you can record, make sure you know what those limitations are.
  • If you are demonstrating in large groups, you may need to get a permit. Flash mobs have a certain allure, but serve a limited purpose. A dozen protesters suddenly appearing on I-285 is not an effective way to get the message out. You will probably be arrested much to the satisfaction of every driver in Atlanta. Laws that keep people from walking on public highways have nothing to do with justice reform or police misconduct.
  • If you feel you have been wrongfully treated by law enforcement, file a formal complaint with the department and ask for an investigation.

These points are just some examples of why lawyers need to actively participate in large numbers. The last thing anyone wants, is to be googling lawyers at one in the morning, ready to hire the first voice that picks up the phone. Lawyers need to be more involved from the beginning.

No doubt there are pastors and lawyers who participate and support the current protests. But more is required from us in the current struggle.

This is what God needs today: Men and women who will ask, “What will happen to humanity if I don’t help? What will happen to the civil rights movement if I don’t participate? What will happen to my city if I don’t vote? What will happen to the sick if I don’t visit them?” This is how God judges people in the final analysis. – Martin Luther King, Jr. April 9th, 1967 Sermon on Three Dimensions of a Complete Life

 

 

by Joshua Brownlee

You don’t have to wear a tinfoil hat to see potential problems when local police use controversial technology and massive data surveillance techniques to secretly acquire people’s information. Citizens (especially lawyers) need to start being mindful and actively vigilant against these techniques and the Constitutional ramifications that inevitably come up with their wide spread use.

Gwinnett County Police Department and an unknown number of other local police departments are currently using technology that most people associate with the National Security Agency (N.S.A.) or Federal Bureau of Investigation (F.B.I.). Specifically, Gwinnett Police are using devices commonly known as Stingray. Stingray machines have the capability to hijack all cell phones within range of the device and force the captured cell phones to send all traffic through the Stingray machine instead of the closest tower owned by the phone’s actual service provider. Stingrays and their smaller hand held cousins Kingfish can also locate cell phones by using the International Mobile Subscriber Identity (IMSI) of individual phones. Keep in mind, once someone gets your IMSI, it becomes incredibly easy to use your phone from a different location from where your phone physically is. When we say “use” we mean collecting call logs, digital content, storage abilities, frequency strength, and even using your cell phone as a wiretap. Let’s be clear up front, IMSI isn’t a phone number, this is like your smart phone’s social security number. They are encrypted and cautiously given out so that hackers can’t mess with your phone. Another important thing to keep in mind is that cell phone providers and customers are equally in the dark when a Stingray unit activates and hijacks large numbers of IMSI numbers from the provider’s cell towers. Police just turn on the device and they suddenly have access to anyone’s IMSI that is within range. If you are an attorney, this should deeply trouble you. What if police set this off near a court house? Suddenly prosecutors, judges, defense attorneys, jurors, witnesses, and defendants have potentially had their smart phones compromised. A device with such destructive potential needs to be closely supervised with complete transparent accountability, or it should not be used at all. Unfortunately, these devices are routinely hidden from defense attorneys, citizens, and even prosecutors.

Gwinnett County District Attorney Danny Porter was interviewed about Stingray devices by 11 Alive News in 2014. During that interview Mr. Porter stated that devices only “look for the location of one phone.” The Gwinnett County District Attorney went on to say that criminal defense attorneys are only told that police used “cell phone location technology.”  Mr. Porter admitted in the interview that he would not disclose court orders, contracts with private contractors, or verification on the type of devices used to defense attorneys.  See: 11 Alive News Story.

Mr. Porter’s responses are troubling considering what is happening in cities and states across the country. Florida, New York, Maryland, Illinois, Wisconsin, and California to name a few.  What is equally troubling is that Baltimore and Milwaukee police departments may have not only been instructed by Federal Agents to hide the use of Stingray devices from defense attorneys, but sometimes even judges and prosecutors! Click on Baltimore and Milwaukee for more information.

In 2014 U.S. Marshals sent emails instructing local police concerning the disclosure of the device in a Probable Cause Affidavit (PCA). One U.S. Marshal wrote:

If this is in fact one of your cases, could you please entertain either having the Detective submit a new PCA and seal the old one, or at minimum instruct the detectives for future cases, regarding the fact that it is unnecessary to provide investigative means to anyone outside of law enforcement , especially in a public document. Please note that I am passing information on to you, and I have not been able to confirm that the case or detective are affiliated with NPPD.

(Emphasis added). U.S. Marshal’s Email. Reading this email it is clear that Federal Agents do not want local police to disclose: when IMSI’s are used, how they are used, or even confirm their existence. Click the link for more information click on: More information on U.S. Marshal’s use of Stingray.

Over the last few years a pattern has emerged showing these are not isolated agents misunderstanding Federal rules concerning surveillance, but rather, a wide spread policy throughout law enforcement. One of the companies that manufactures Stingray devices is Harris Corporation. An example of their nondisclosure agreement can be found at: Harris Corp. Nondisclosure Agreement.

Gwinnett has had Stingrays since at least 2010. Gwinnett County Receipt for Stingrays. Despite the possibility and history of abuse of this technology, District Attorney Danny Porter has assured citizens that police are getting warrants every time Stingrays are used. Is that enough? Should we just blindly trust Gwinnett’s top prosecutor? I’m not saying he is a horrible lawyer or bad person. What I am saying is there is no check for overzealous use of this surveillance system. Something else to keep in mind, Danny Porter is also the Chairman of the Prosecuting Attorney’s Council of Georgia. In 2015 Mr. Porter backed state legislation that would make it easier for police to get secret warrants. A draft of Georgia SB 94 allowed:

4) Use of Certain Devices in Search Warrant Execution – This bill allows other personnel acting on behalf of a peace officer to assist in the execution of a warrant. The bill also allows the use of a “device” when executing a warrant. A device means an electronic instrument used for overhearing sounds or for observing images. This also includes instruments that can be used to intercept a wire, oral, or electronic communication. Certain instruments are excluded from the definition of device, such as hearing aids or “trap and trace” devices. 5) Records of Search Warrants and Supporting Documents – This bill prevents search warrants from being subject to public inspection until they are executed or returned as not executed. This applies to the documents supporting the warrant as well. 6) Ex Parte petition for Sealing of Search Warrants and Supporting Documentation – SB 94 allows a prosecuting attorney to petition the court ex parte for a search warrant and supporting documentation to be filed under seal with the clerk. The prosecutor must show “reasonable cause” to believe that disclosure of such materials may endanger the life of an individual, cause an individual to flee from prosecution, lead to destruction of evidence/ intimidation of a witness, or otherwise jeopardize an investigation or delay a trial. A judge may order such sealing for up to 60 days, and the period of sealing cannot extend beyond the return of indictment or filing of accusation where evidence seized may be admitted. If an individual is not available, a copy of the warrant must be left in a conspicuous place. If the warrant has been ordered to be sealed, however, a copy may not be left in a conspicuous place.

(Emphasis added).

http://www.peachpundit.com/wp-content/uploads/2015/03/SB_94_Summary.pdf. The District Attorney’s legislation attempts to harness the full capability of Stingray systems while shielding law enforcement from discovery or potential civil liability.

Who else is Using Stingray?

The short answer is we don’t know. The American Civil Liberties Union (ACLU) has been trying to get more information on Stingrays for years through open records requests. The ACLU has posted a map of the States using Stingray or IMSI catchers (doesn’t include Federal Agencies). The map and corresponding article indicate:

The ACLU has identified 61 agencies in 23 states and the District of Columbia that own stingrays, but because many agencies continue to shroud their purchase and use of stingrays in secrecy, this map dramatically under represents the actual use of stingrays by law enforcement agencies nationwide.

A.C.L.U. Map and Article about states using Stingray

What are the Constitutional Implications with IMSI Catchers?

The Fourth Amendment:

The Fourth Amendment protects people from unreasonable searches and seizures without a warrant supported by probable cause. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The reasonableness of a search is determined by asking whether the government invades a matter in which a person has an expectation of privacy that society is willing to recognize. Kyllo v United States, 533 U.S. 27, 33 (2001). The Supreme Court has held “wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” Katz v. United States, 389 U.S. 347, 359 (1967). Recently, Chief Justice Roberts wrote for the majority of the Court holding:

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13-212, p. 26. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.

Riley v. California, 573 U.S. ___ (2014). The Chief Justice went on to describe the multipurpose and massive storage capabilities of modern smartphones. Id. Government authorities have typically relied heavily on a Supreme Court case called Smith v. Maryland, 442 U.S. 735 (1979). Smith dealt with electronic devices that recorded phone numbers called pen registers. The Court held there was no expectation of privacy (and therefore no search) in pen registry numbers because the caller freely gave the information to the cell phone provider. Chief Justice Roberts addressed this issue head-on stating:

We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case. The Government relies on Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745-746, 99 S.Ct. 2577. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.

Finally, at oral argument California suggested a different limiting principle, under which officers could search cell phone data if they could have obtained the same information from a pre-digital counterpart. See Tr. of Oral Arg. in No. 13-132, at 38-43; see also Flores-Lopez, 670 F.3d, at 807 (“If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.”). But the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years. And to make matters worse, such an analogue test would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form. In Riley’s case, for example, it is implausible that he would have strolled around with video tapes, photo albums, and an address book all crammed into his pockets. But because each of those items has a pre-digital analogue, police under California’s proposal would be able to search a phone for all of those items — a significant diminution of privacy.

 Id. The Fourth Amendment Stingray battle revolves around the question: whether IMSI catchers constitute a search? It seems there is a legitimate argument that collecting IMSI would constitute a search under Fourth Amendment analysis but lawyers and programmers need to hammer out the details. Even if a warrant is acquired for a specific target, the machine is still hijacking all other phones in range. The warrant does not include the innocent phones caught up in the Stingray’s potential sweep.

Due Process Issues and Ability to Challenge the Scientific Findings:

Criminal defendants are entitled to exculpatory evidence that is material to guilt or punishment in a criminal case. Brady v. Maryland, 373 U.S. 83 (1963). Exculpatory evidence should include knowing which device was used to locate the defendant and whether that device was maintained properly with appropriate calibrations. Exculpatory evidence may also involve the specific training (or lack of training) law enforcement officers have before using the IMSI catchers. Defense attorneys are routinely allowed to have access to the personnel and equipment used to analyze D.N.A., blood alcohol, narcotics, ballistics, fiber analysis, 911 dispatch operators, and a host of other specialties that gather evidence for law enforcement. Whether it’s D.U.I. or D.N.A. an analyst must disclose the method used, training, and facts to establish a proper foundation for reliable evidence.  Under Georgia law, felony cases are also subject to reciprocal discovery. Meaning that once a defendant opts in to discovery, both sides agree to share evidence. According to O.C.G.A. § 17-16-4:

the prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant. Evidence that is within the possession, custody, or control of the Forensic Sciences Division of the Georgia Bureau of Investigation or other laboratory for the purpose of testing and analysis may be examined, tested, and analyzed at the facility where the evidence is being held pursuant to reasonable rules and regulations adopted by the Forensic Sciences Division of the Georgia Bureau of Investigation or the laboratory where the evidence is being held.

(Emphasis added). O.C.G.A. § 17-16-4. By opting into discovery criminal defendants have an expectation that the device used to hijack their cell phone data or track their presence will be disclosed as well as any Stingray call logs, standard operating procedure, and witnesses used to obtain their data. Given District Attorney Danny Porter’s comments to channel 11, this is not being done on a regular basis in Gwinnett County. When methods aren’t disclosed, bad habits form. An investigator in Florida was asked about maintaining quality assurance of the device during a motion to suppress hearing. The investigator stated “well, it’s very difficult to say quality assurance. The — in hundreds of uses the equipment has proven completely reliable.” Motion to Suppress in Florida v. James Thomas (page 13). There are two troubling things about the investigators response. First, he never answers how they check the accuracy of the device. He basically just says it’s reliable because we use it. Second, he admits their department has used the device hundreds of times. Numerous uses without transparent methods that can be checked in an adversarial judicial system is toxic to the whole process.

First Amendment Issues:

There are also possible threats to the First Amendment. What if law enforcement use these devices at political rallies or other large gatherings. It could have ramifications on how people express themselves at public events and how they are treated by law enforcement. If supporters of Bernie Sanders or Donald Trump are having their phones monitored around political rallies, then at a minimum law enforcement can identify who attends what rally. At worst they can monitor communications and content of cell phone users. This type of speech monitoring is creepy enough in the hands of an unknown F.B.I. agent, but police live in our communities, and they are subject to the same temptations, jealousy, and lack of judgment as anyone (they’re brave human beings for the most part, but still human beings).

Have There Been Constitutional Violations?

Yes. The number and frequency are largely unknown because most people that are victims/targets of IMSI catchers are unaware of their smart phone being hijacked (including defendants in criminal cases and their attorneys). Possible Stingray violations.

Are we Powerless?

No! Unlike a number of other problems, there is something normal people can do about this problem. Engineers and computer programmers have developed systems to detect IMSI catchers. People should encourage this technology. Also, using “4G only” networks may prevent IMSI catchers from intercepting and using decryption on your phone’s data. This will eventually be overcome with new technology (if it hasn’t already). Most importantly, this isn’t about stopping the F.B.I. or N.S.A., this is about stopping your local police force from using and abusing IMSI catchers. Make local District Attorneys, Solicitors, Chiefs of Police, and Sheriffs accountable and on the record about their policies and opinions. There are a number of District Attorneys up for re-election this year and they should be answering questions about this issue. Individuals can make a huge difference at the local level. Remember, this is not a political party issue. Both Washington and Utah State Legislators have both openly discussed banning IMSI catchers. Stingrays and their progeny hijack anyone’s phone within striking distance, they don’t distinguish between political parties.

Attorneys

Attorneys that practice civil rights or criminal defense in Gwinnett and other major Georgia metropolitan areas have a duty to their clients to use every resource and legal tool available to determine if IMSI catchers are being used in their cases. Some helpful thoughts:

  • Look out for convenient arrests where the officers “happened to be there”.
  • Keep in mind that investigators probably used the device close to where your client was arrested.
  • Don’t be afraid to use open records to find out if Special Investigation Units were involved in the arrest. Listen out for phrases like “cell phone data collection, gps locator, or cell phone locator”.
  • Draft a motion that particularizes issues and requests regarding Stingray Surveillance. Don’t just throw some words in your omnibus motion. No one reads our omnibus motions half the time and this issue needs to be openly argued from the beginning to get the judge on board.
  • Look at cell phone tower records from cell phone providers. Be on the lookout for ghost towers marked as zero or other strange data that doesn’t fit in the context of the records. Don’t be afraid to call the providers and act like you don’t know what you’re looking at (cell phone towers are confusing enough without Stingray).
  • Map out towers on google maps and find out their range when you are comparing tower locations.
  • Be aware that there are a number of apps and devices that detect IMSI capture equipment. One device found 18 different IMSI capture devices in Washington D.C.

Law and technology are constantly changing, and that’s not a bad thing. IMSI catchers actively force phones off the service provider. It is possible this action leaves some sort of digital footprint on a phone. If that’s true, attorneys may be able to get with programmers to make an app that can run a diagnostic to see if a phone has been pirated in the past. Civilians and criminal defendants who have been hijacked could then openly fight back once they know they’ve been targeted. If you suspect such techniques are being used in one of your cases, let’s put some ideas together. Unlike many other professions, lawyers in specific practice areas are incredibly organized. Georgia criminal defense and civil rights attorneys have the knowledge and dedication to take this issue on.

by: Joshua Brownlee

A legal battle is currently being waged between Apple and the F.B.I. Read Apple’s Motion to Vacate for more backstory. Comedian and reluctant journalist, John Oliver recently ran a segment explaining the tensions between compromised software security and national interests on his show Last Week Tonight. Most journalists are following John Oliver’s lead and focusing on the same issue. What many journalists fail to mention is the Apple case’s implication of freedom of expression and speech. The overlap between computer language and free speech is a relatively new legal concept and the consequences of Apple’s case may have far reaching effects on the way software developers market, create, and communicate in code. It’s important to note that major software companies, including Apple, have a long history of complying with information requests from law enforcement agencies. Over the last two years, the tone has changed. At the heart of this debate is a series of laws that have typically allowed government agencies to freely graze on the private information of consumers. One such law is commonly known as The All Writs Act of 1789 or more formally known as 28 U.S.C. § 1651, which states:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

A “writ” is essentially a formal written order from a court ordering something to be done. One of the most common examples of a writ is a subpoena for documents or witnesses to appear in court. Compelling parties that have relevant knowledge about a case to show up and give testimony or documents is essential to providing a fair judicial process to society. That all seems pretty straight forward, until you read how Federal Courts interpret 28 U.S.C. § 1651. Courts have expanded the scope of 28 U.S.C. § 1651 to go beyond providing documents or testimony, holding “in aid of a valid warrant, to order a third party to provide non-burdensome technical assistance to law enforcement officers.” Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). The F.B.I. argues it’s using 28 U.S.C. § 1651 as a legal mechanism to acquire reasonable technical assistance to assist law enforcement agents in obtaining data. The problem is that the software required does not currently exist, meaning the programmers for Apple will have to create new software. When most people think of computer code, they think of binary zeroes and ones or a series of weird symbols scrolling down a screen endlessly. Software code is a language, and what’s more, its variations are some of the most widely used forms of communication on the planet. Everything from cell phone apps to bitcoins use creative individual language to communicate with the rest of the human species. What’s amazing is that most people who rely and use software to communicate don’t understand it as a language. There is a temptation by nonprogrammers to undermine the expressive and unique aspects involved in software creation. Similar to a native English speaker not understanding the expression and uniqueness from an Arab reading Al-Mutanabbi.

In the last 15 years courts have started to respect code as having the potential for First Amendment Protections. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) and Junger v. Daley, 209 F.3d 481 (6th Cir. 2000). Obviously if there was a better understanding of programing in society as a whole, then Apple would have a much easier case. This is especially true when we are reminded that speech cannot be compelled by the government. Riley v. Nat’l Fed. Of the Blind of N.C., Inc., 487 U.S. 781 (1988). The First Amendment mandates that courts presume speakers, not the government, know best on “what they want to say and how to say it.” Id. at 791. The High Court stated:

Thus, where, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical. Therefore, we apply our test for fully protected expression. Id. at 796.

If Apple is forced to create code, it is being forced to create speech. The speech created will not be for a commercial purpose, but for the government’s own agenda which is to enable law enforcement to take consumer data that is currently inaccessible. The identity of the consumer is irrelevant as to whether the government can force a company, or individual, to create software that undermines consumer privacy or personal belief. It doesn’t matter if creating the software actually undermines consumer privacy or not. What is relevant, is that the creator of the speech believes the code will be abused. It is not for the government to control the thoughts, speech, and expressions of its citizens, this includes programmers. The tragedy of the San Bernardino terrorist attack does not give a green light to law enforcement to run amok in the garden of liberty. Fundamental rights exist to remind the government that it was created by the people, and therefore does not have access to the forbidden fruits of our creative expression.

by Joshua Brownlee

What do Mathew Broderick, Will Smith, Chuck Berry, Woody Harrelson, Stephen Fry, and Jay Z have in common? They were all given a second chance.

  • Mathew Broderick- Careless driving (reduced from vehicular homicide)
  • Will Smith- Aggravated Assault
  • Chuck Berry- Armed Robbery
  • Woody Harrelson- Disorderly Conduct and Resisting Arrest
  • Stephen Fry- Credit Card Fraud
  • Jay Z- Aggravated Assault (Stabbing)

It’s not just famous people. If we search the histories of our lives we find friends and family (maybe ourselves) that were lucky enough to catch a break. In Georgia we have a specific statute that has been around for 40 years that is meant to help people start over. O.C.G.A. § 42-8-60, or more widely known as First Offender Act. First Offender status doesn’t have an effect on the prison or probation sentence itself. First Offender comes into play after the sentence has been completed. When a defendant enters a plea of guilty under First Offender he or she must complete the confinement, special terms, treatment, and fines of the sentence. After they complete the sentence, the case is discharged without an adjudication of guilt. More specifically it states in O.C.G.A. § 42-8-62:

Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8-63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction. It shall be the duty of the clerk of court to enter on the criminal docket and all other records of the court pertaining thereto the following:
“Discharge filed completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, except for registration requirements under the state sexual offender registry and except with regard to employment providing care for minor children or elderly persons as specified in Code Section 42-8-63.1; and the defendant shall not be considered to have a criminal conviction. O.C.G.A. 42-8-62”.

This is a life changing opportunity for many people. The second chance is limited to those who commit nonviolent crimes and it does not apply to sexual crimes against minors. That means more than half of the famous people listed above wouldn’t be eligible for First Offender in Georgia. Not having a felony conviction is a big deal. It means that after a person completes their sentence they can apply for jobs without having to say they are a convicted felon. It means they can vote and be a normal citizen and reintegrate as a productive member of society.

So why am I blogging about a Georgia Law that helps people? Unfortunately, the internet profits from suffering and fear. Many websites troll for mugshots and criminal records making it difficult to get away from a mistake that happened decades ago. In an effort to help First Offenders reintegrate without looking over their shoulder the Georgia Legislature is currently reviewing SB 367. The new legislation will expand privacy protections of people who complete the terms of First Offender. Upon sentencing, the First Offender can have their records sealed including their mug shots. The Atlanta Journal Constitution recently ran a story criticizing the new bill called Second Chance for Criminals, closed files for public. The article focuses on one bad actor who took advantage of First Offender and broke the law again. The basic premise of the article is once someone commits a crime we should always be allowed to know because most people never change. No doubt Jay Z and Mathew Broderick are just waiting for the right moment to unleash their next wave of destruction. Never mind that Jay Z and Mathew Broderick are famous people that make tons of money and are married to women who make even more money. It’s hard to feel too bad for them. They are celebrities and in exchange for being rich and famous, everybody knows their business.

99.99% of First Offenders aren’t rich and famous, they are fairly regular people that just want to get back to their families and live a normal life. Without sealing their records they can’t do that. It doesn’t matter if they become a lawyer, doctor, nurse, mechanic, business owner, or stay at home parent. There will always be a picture and article condemning them to a past they would rather forget. Will bad people take advantage of First Offender? Yes, some people don’t learn. But a lot of people do learn and do great things with their life. It’s important to remember, the records are sealed from the public not law enforcement and judges. You want to see some fireworks in a court room? Watch a judge sentence someone for screwing up First Offender. The AJC article lays out the details of a woman who used First Offender as a cover for her next crime spree. The employer is justifiably angry at being ripped off and lashes out at the First Offender statute. The anger in the article portrays this woman as if she is the sole fruit of the tree. It’s true, bad people will break the law again and again, but not all people that break the law are bad people. It is silly to take an opportunity from tens of thousands of individuals because a few people re-offend. You won’t hear from the people who successfully completed First Offender in the AJC article because they are focused on moving on with their lives. My clients who have taken a plea under First Offender weren’t mentioned in the AJC article. So to our good friends at the AJC, I respectfully end with one of history’s better conclusions:

Now my charms are all o’erthrown,
And what strength I have’s mine own,
Which is most faint. Now ’tis true
I must be here confined by you
Or sent to Naples. Let me not,
Since I have my dukedom got,
And pardoned the deceiver, dwell
In this bare island by your spell;
But release me from my bands
With the help of your good hands.
Gentle breath of yours my sails
Must fill, or else my project fails,
Which was to please. Now I want
Spirits to enforce, art to enchant;
And my ending is despair
Unless I be relieved by prayer,
Which pierces so, that it assaults
Mercy itself, and frees all faults.
As you from crimes would pardoned be,
Let your indulgence set me free

– Epilogue of Prospero, Shakespeare’s The Tempest

A Balanced Approach is the Only Way to Truly Change Our Criminal Justice System

Earlier this week the U.S. Congress started looking into fixing the United States criminal justice system. Elected officials of the Judiciary Committee all had something to say. Terms like “liberal” and “law and order types” were casually tossed around the room to bolster various positions. While it is refreshing to see Congress finally jumping on the band wagon of criminal justice reform, I am deeply concerned that they continue to view “the system” through compartmentalized perspectives. Right now, Congress is mainly focused on amending mandatory minimums and the power of judges to have more discretion in deciding sentences for offenders. While that is a great start, it is clear from their discussions that after changing mandatory minimums, they are going to pat themselves on the back and say “all done, let’s move on”. This isn’t Congress’ fault, because most lawyers and lay people think the same way. Criminal justice discussions often resemble legal shows on TV, meaning they can only focus on one of the great spheres of power in the court room at a time (Boston Legal is all about the defense or Law and Order which is all about the prosecution). America’s short sighted goals and limited attention span is precisely how we got here in the first place. Look at most articles on justice reform and you will see a common theme of finding the silver bullet to stop excessive punishments, waste, and recidivism in our justice system. The discussion usually focuses on either the prosecution, judge, or defense and almost always over-estimates the power of that entity to fix all the problems. Don’t get me wrong each piece has a part to play and needs advocates (I am a constant loud mouth for defense). Where Congress has me worried, is not what they’re talking about, but what they are forgetting to talk about. The cancer in our justice system has critically spread to all three spheres of power.

CRITICAL PROBLEMS IN ALL THREE SPHERES:

The Defense (read previous blogs for examples):
– Public defenders are underfunded and undermanned.
– There is very little training for attorneys on how to represent the mentally ill or resources for mentally ill clients.
– Plea deals are encouraged by prosecutors and judges.
– Racial and economic disparities from institutional discrimination still run rampant.

The Prosecution:
– Win and loss trial ratios are closely monitored. Example: some prosecutors are openly humiliated in their office when they lose at trial. Prosecutors, especially young ones, need to be free to exercise discretion and make good faith mistakes.
– Prosecutor offices are often understaffed and overwhelmed by high caseloads, which in turn forces them to discourage defendants from challenging the evidence in their case through motions hearings and trials. Example: Prosecutor has 150 cases at arraignment calendar one week, next week she has 10 motions hearings. She physically only has time to skim over a police report for each case before making a plea recommendation that effects someone for the rest of their life. Prosecutors should have case limits just like any other attorney.
– Prosecutors are often blamed for rising crime rates. Example: Prosecutor has to dismiss a murder case because of blatant constitutional violation. Another local murder takes place that is completely unrelated to first case and prosecutor is blamed in the media for upholding constitutional protections or “technicalities”.
– Prosecutors have limited options available for mentally ill defendants.

The Judge:
– Judges are bound by statutory mandatory minimum sentencing. This means prosecutors actually control the sentencing of defendants instead of judges. The prosecutors are the ones who choose what crimes to accuse. If certain crimes have certain mandatory sentences, that means they get to decide what the sentence is if a person is convicted. Example: A Georgia 13 year old who makes A’s and B’s in school is charged with armed robbery because he took $20.00 from someone while holding a water gun that looked real. Judge looks at the facts and wants to sentence the child to 2 years in juvenile detention and 6 years on probation, including various anger management and theft treatment programs. Judge is forced to sentence the child to 10 years to serve every day because mandatory minimums don’t allow for deviation or judicial flexibility based on facts in the case. Some judges have tried to counteract mandatory minimums by telling the jury how a defendant will be sentenced, but this practice has been extremely controversial and is generally frowned upon.
– Judges are overwhelmed by the number of cases on their calendars so they encourage efficient processes instead of fair and constitutionally sound practices. Example: Judge has 10 cases on motions calendar and states in open court that defendant will be sentenced to twice what the prosecutor would recommend if the case has a motions hearing. The defendant hears this and is too scared to go forward, he does not challenge the evidence in his case out of fear of retribution. This practice not only coerces people into taking a plea deal but also undermines the two lawyers who know the most about the merits of the case. Just like public defenders and prosecutors, judges have too many cases on their calendars. Counties and municipalities are more concerned about making courts financially self-sufficient and procedurally efficient instead of paying for a society that values justice as a moral principle.

These points are just a few of the problems each sphere in our legal system faces. If true criminal justice reform is a priority for Federal and State governments, then it is essential to have a complete discussion with an equal number of judges, prosecutors, and defense council sitting at the table. That is the only way to have a fully informed and constructive discussion of the actual issues facing the professionals who work in these areas.

By Joshua Brownlee

Before getting bogged down in yet another article, ask yourself these questions:

Are 95% of people who are arrested guilty?
What percentage of people who get arrested are innocent?
Does police misconduct or overzealous prosecution increase convictions rates?
How do police know when they make an illegal search or seizure?
What happens to innocent people who are wrongfully accused?

Sadly, people from different communities and backgrounds will have very different answers to these questions. For some, it may be tempting to say “Hey I follow the law, so this doesn’t apply to me” or “Most defendants are guilty of something, right?” The five questions mentioned above are important because the answers have serious consequences for society as a whole. Tragically, most of these questions cannot be answered in the present judicial system. The purpose of this article is to demonstrate the ramifications of not answering these questions.

The ecosystem of the United States criminal justice system is based on adversarial relationships. Judges, prosecutors, law enforcement, and defense attorneys make up separate parts of that fragile ecosystem. Like any functional ecosystem there must be a balance. The system ceases to function properly when parts lack the power to keep the others in place. These checks are not just power point slides from a high school civics class. These entities wield real power that affects hundreds of thousands of everyday people. Let’s start with Defense Council. Public Defenders handle the overwhelming majority of criminal defense cases at both Federal and State levels. HBO host John Oliver recently ran a segment discussing Public Defenders’ lack of funding and overwhelming caseloads on HBO’s Last Week Tonight. If you haven’t seen it check it out. Last Week Tonight Public Defender Episode.

The HBO host does an excellent job covering funding and case load issues plaguing indigent defense and public defenders across the country. Among other things, John Oliver highlights that 90-95% of criminal cases end in a guilty plea (regardless of whether they have a public defender or private attorney). Mr. Oliver goes on to make a number of sound moral arguments about why we should care about funding Public Defender Offices. Unfortunately, at the end of the episode it still feels like a poor person’s problem. This isn’t John Oliver’s fault because it’s a mistake we all make. The American Civil Liberties Union (ACLU) reported that it’s currently suing the State of California for lack of funding for Public Defenders in a civil rights case. Again, at first glance it still seems like a poor person problem. The law suit claims lack of funding for Public Defenders “collectively result in the constructive denial of counsel.” See: Phillips v. State of California. This means a majority of the cases going through that system might as well have no attorney at all. The complaint in Phillips v. State of California lays out some compelling evidence to back that quote up. See also: Justice Policy Fact Sheet.

The evidence presented by John Oliver, the Phillips case, and justicepolicy.org demonstrate that most negligent, improper, or illegal actions taken by judges, prosecutors, and law enforcement in criminal cases not only go unnoticed and unchallenged, but may even be encouraged. The collective result of this practice leads to unconstitutional habits that infect the entire ecosystem. Institutions in the criminal justice system are designed to challenge the other parts. They are not designed to hold back and let a weakened adversary take a breath when it is at a disadvantage. At best this turns into accidental oversteps and at worst it turns into outright abusive bullying by judges, prosecutors, and law enforcement. And here good friends is the awkward part. An average person doesn’t have to look very far to find a fair judge, committed prosecutor, or dedicated police officer. For me, this is the most terrifying fact. Despite dedicated legions of well-meaning loyal public servants, the system is failing. This failure can best be summed up in a very common scenario:

A young police officer makes an unknowing illegal arrest and search in a case. The Defendant is too poor to hire an attorney and gets an appointed lawyer. At arraignment the court room has an overloaded calendar. Judges, prosecutors, and public defenders all have high caseloads. In response to high caseloads, the judge gives higher sentences to those who lose at trial and openly hostile towards attorneys and defendants who ask for evidentiary hearings. In response to high caseloads, the prosecutor adds more charges to accusations to increase the likely hood of a conviction and is encouraged by supervisors and third party activist groups (like MADD) to not reduce cases to lesser charges. In response to high caseloads, the public defender attempts to get the best deal for his clients as quickly as possible so he can talk to the forty other clients on the arraignment calendar. At arraignment (defendant’s first court date), a plea is offered along with a discovery package from the prosecution. After only a momentary glance at the police report and before the evidence can be thoroughly examined by the defender, Defendant pleads guilty to the charges. The officer never testifies and is never made aware that his arrest and search were illegal. Officer congratulates himself on getting a bad guy off the street and remembers “what works on the street”. At the end of the day, Judge nods approvingly at prosecutor and public defender for getting through another loaded calendar.

This scenario is how bad practices begin to take foothold throughout institutions. These bad practices have a powerful effect on anyone implicated with a crime as well as innocent people who have done absolutely nothing wrong. Look on any news channel for examples. James Blake, a world famous tennis player is leaning against a wall and then out of nowhere he is tackled by a police officer and thrown to the ground. See: Video of James Blake being attacked. Police end up apologizing because he is a world famous tennis player and there happens to be video. James Blake was the 4th best tennis player in the world and he got slammed to the ground for no reason. What about all the people who can’t afford lawyers who are not world famous tennis players?

The problem is made worse when the boundaries between prosecutors, judges, and law enforcement start to get blurry. Recently, the Atlanta Police Chief had the audacity to tell reporters “judges and prosecutors need to be on the same page” to get more jail time for repeat offenders. See: Atlanta Police Chief demanding higher sentences.

A Police Chief has no business encouraging a prosecutor and judge to have exparte sentencing arrangements in a court room. What kind of ecosystem of equal adversaries do we have if law enforcement, judges, and prosecutors are all on the same play book? Police officers, judges, and prosecutors must remain separate, not gang up on criminal defendants. The very same law enforcement, prosecutors, and judges that buddy up are the same ones who will prosecute and sentence a corrupt public servant if he or she commits an illegal act. How can they not be biased?

We can’t rely on 1983 civil rights lawsuits to make up for criminal defense council. Most city police officers are good police. Sadly there is a cultural problem within the command staff and the city governments. Police leaders are all too happy to throw individual officers who make mistakes under the bus rather than correct bad habits and have the city be accountable for common practices or policies. Take City of Atlanta for example. Whenever there is a constitutional law suit against the City of Atlanta, the City is quick to deny any and all wrong doing regardless of what they know. If evidence is presented clearly showing wrongdoing authorities abandon the individual officer to avoid the City paying out. This means individual officers who may have been improperly trained or directed by a superior are left to fend for themselves when it comes to damages rather than have the City or Police Department held accountable. Bad habits go unchecked because there is no fiscal incentive for cities to fix problems until they get epidemic. Is it really that bad? The Federal Northern District Court recently held Atlanta Police Department in contempt of court for failing to follow the court’s orders on protecting civil liberties. See: Southern Center for Human Rights article on Judge Batten’s Order. After reading Judge Batten’s Order, one is tempted to call the Police Chief and City of Atlanta leaders repeat offenders.

Police have a difficult job, but all the more reason to be clear about the rules of warrantless searches and seizures. The best way to ensure officers understand their legal parameters is to have their work checked in the adversarial system. By the time civil rights lawsuits come along, it is usually too late. Take DeKalb County earlier this month. Three officers break into a house without a warrant, shoot the family dog, and then shoot an unarmed man. All of this action was based on an alleged 911 call about a suspicious person that was vague a best. See: DeKalb County Police Shooting.

Three officers participated in a search that had no exigent circumstances justifying a warrantless search. Their lack of training almost killed an unarmed father with his child in the next room. Some fathers, brothers, and sons are not so lucky. Let me be clear, I am not saying police shouldn’t defend themselves. People who point guns or knives at police have a death wish. That being said, some police have bad habits that go unchecked for a long time, and those bad behaviors can quickly and randomly hit anyone in a community.

Good public defenders counter balance bad police behavior and overzealous judges and prosecutors. A well-funded and well-staffed state wide public defender system is absolutely necessary for our legal system to function. Despite this fact, every year the Georgia Legislator tries to dismantle or chip away at the public defender system and replace it with the old appointed system. The appointed system saves the government a lot of money because it usually passes on the cost to the defendant. For private attorneys taking appointed cases, there is a strong fiscal incentive to get lots of cases and plea them out early. See: Blog on Georgia Legislature. There are amazing public defender offices but there’re understaffed. Which is amazing considering most legal magazines point out every month how there are currently more attorneys than legal positions available. Despite the glut of attorneys on the market, individual Public Defender Offices have to get by with less staff and more cases every year. This is a funding problem. We need more prosecutors, judges, and most of all public defenders to handle the case loads. It should not fall on a judge or prosecutor to ease up on litigating criminal cases because the system is overloaded, that isn’t their job. Police can’t be expected to manifest objective scrutiny on their search and seizure techniques, that’s not their job. It’s the responsibility of defense counsel, and most importantly public defenders, to challenge those elements in the judicial system with evidentiary hearings and jury trials to bring balance to the adversarial process. Our legal system requires fairness and equality before the law. Not giving those principles to the majority of people that pass through that system, renders Federal and State protections meaningless for society as a whole.

 

 

 

 

 

 

 

A brief rebuttal on the misconceptions of “the flag” debate and why it matters most in the Deep South.

Racism can take root anywhere, regardless of the country or culture. Tensions between groups of people who look different can be the perfect catalyst for violence and oppression. Given that premise, why do we always focus on the Deep South when we talk about racism in the United States? Racism itself isn’t what’s unique in the Deep South, what is unique is the magnitude, organization, and brutality of discrimination. It’s the same reason 90% of citizens in industrialized countries think of Nazi Germany when they think of the word “Holocaust”. There have been other Holocausts since the 1940’s. Nazi Germany’s discrimination is remembered because it was extremely organized, lethally efficient, and widely accepted by Germany’s population of approximately 67 million people. From 1933 to 1945, 67 million people were apathetic to highly organized State institutions whose sole purpose was to subjugate and destroy an entire minority population. Stalin likely killed more people, and yet school children always remember Nazis Germany first. Of course during the Holocaust, Nazi Germany created a narrative and justification for their actions. After the Germans surrendered however, the rest of the world corrected the fiction. The concentrated effort to fix historical inaccuracies created by Nazi propaganda was necessary to correct the fantasies of psychopaths. In Germany and France, Nazi flags are outlawed. The majority of people in industrialized nations socially shun Nazis supporters from public. We do this because we have conditioned our children to be culturally opposed to Nazi sympathies.

The facts and pictures used to tell the story of Nazi Germany in school text books tells a compelling story. Every child in the United States should remember the pictures in their world history book of ghost like children patiently holding their mother’s hand waiting in line to be gassed. The next picture that follows is a picture of a human sized incinerator in Auschwitz. These pictures were common in our text books because children think in images, they relate to faces, and it’s a powerful way to see past cultural barriers and teach empathy to the future generations. The evil of mass genocide was intentionally burned into our minds at a very young age by educators. Teaching discrimination and slavery in the United States however, especially in the Deep South, is a patch work of inconsistent narratives that disconnects institutionalized terror with “Southern Heritage” and “State’s History”. Our American History books have a picture of a few Klansman, we see a burning cross, maybe a hundred year old picture of a former slave with scars on his back. Mixed with those pictures are pretty hoop skirt dresses, spacious plantations, cotton bails, and heroic depictions of battles fought under the Confederate battle flag in the Civil War. The next chapter briefly discusses Reconstruction and Jim Crow in the same breath and then boom Martin Luther King! Civil Rights is over and we move on to the Cold War.

In children’s history books catch phrases like “state’s rights” and “agrarian culture” are tossed around to offer legitimate moral reasons Confederate States seceded from the Union. As if there could be a moral justification to cause a war revolving around terrorizing black people resulting in 620,000 dead American soldiers. The approximate numbers of blacks sold and transported between 1790 and 1860 in the United States is around 835,000 human beings. There are no good estimates on the number of blacks executed, tortured to death, raped, or lynched during that time period because the South’s “peculiar institution” did not require explanation when human property was destroyed or damaged by the owner. The Southern State governments and the majority of the 9.1 million people (excluding the 3.5 million blacks) were fervently committed to enslaving and trafficking men, women, and children to the point they were willing to sacrifice hundreds of thousands of lives to preserve that practice.

In 1865, the South finally surrendered. During the years of reconstruction the institutions of Deep South discrimination and false narratives were forced underground. As soon as Reconstruction was over, Jim Crow policies sprang up across the Deep South. Again there was racial discrimination across the Union, but there is no comparison to the organization and terror implemented in the Deep South. With Jim Crow came the old narratives, symbols, and justifications for discrimination. The “glorious cause” was idolized and indoctrinated in generation after generation.

Here are some examples of some glaring differences in how white southerners and black southerners view common concepts and symbols of Deep South history (make sure you click on both links for each category):

The Confederate Flag

Common Southern White Narrative

Common Southern Black Narrative

Anti-bellum Period

Common Southern White Narrative

Common Southern Black Narrative

The 1950’s America

Common Southern White Narrative

Common Southern Black Narrative

Besides the Deep South white narrative, we must also address some common defenses culturally implanted by Confederate defenders:

The Founding Fathers had slaves, no one hates them? Some of the Founders did own slaves and that needs to be part of the honest conversation when we talk about the roots of our Republic. Thomas Jefferson and Washington in particular struggled with their hypocrisy. In the first draft of the Declaration of Independence, Jefferson condemned slavery. The Confederate States had no such conflicts. Confederate States left because they chose to start a war rather than treat blacks as human beings.

You shouldn’t erase history. True, but we have an obligation to correct blatant fiction, we do it all the time. Let’s take Robert E. Lee and Nathan Bedford Forest as examples. Robert E. Lee’s treachery to the Union cost hundreds of thousands of lives on both sides. The underlying purpose of this bloodshed was to insure white people’s fundamental right to own slaves and the children of slaves in perpetuity. Nathan Bedford Forest is often portrayed as a cunning daring Calvary man. Romantic Depictions of Nathan Bedford Forest

In reality, Forest was as twisted as any SS man in Nazi Germany, and we should be clear about that fact. A witness from the massacre at Ft. Pillow wrote:

The slaughter was awful. Words cannot describe the scene. The poor, deluded, negroes would run up to our men, fall upon their knees, and with uplifted hands scream for mercy but they were ordered to their feet and then shot down. I, with several others, tried to stop the butchery, and at one time had partially succeeded, but General Forrest ordered them shot down like dogs and the carnage continued. Finally our men became sick of blood and the firing ceased

– Clark, Achilles V

How many buildings, counties, schools, and streets are named after Confederate traitors? What does that say to black people who are still struggling against institutions of discrimination in the Deep South? We pick the stories our children hear, and we choose how to tell those stories. Some fictions of the “Southern Cause” need to be corrected because they are false, misleading, and disrespectful to the mass suffering and horror intentionally inflicted on a population of millions of people. It is immoral to teach our children lies that dismiss the suffering of a large minority of our population.

Liberals are offended by everything and are more concerned with political correctness than protecting constitutional rights. Deep South defenders are not committed to one political party. Currently they have found refuge in the Republican Party, specifically the Tea Party faction. Before that, they hid in the Democratic Party, specifically the Dixiecrats. This debate is not about pitting liberal and conservative ideologies against each other, it’s about correcting and thoughtfully acknowledging the State sponsored domestic terrorism that has been going on for 150 years in the Deep South. State and local governments have absolutely no business carrying on the fictional narratives. If individuals wish to fly one of the Confederate battle flags, they need to realize many will justifiably view that as akin to wearing a white hood. What is our honest gut reaction when we see the Nazi flag? Do any of us really feel that reaction is inappropriate? Many kids of the 80’s watched and loved Dukes of Hazzard, it was a fun make believe TV show. The flag looked cool on the car and Dixie would play every time they jumped across a river. That is fiction. The reality is black men, women, and children hung from trees with burning crosses and Confederate flags proudly flying below dangling feet.

We have a black president and institutional racism is dead. It’s good to see diversity in Government, but the institutions of discrimination are difficult to dismantle. During Reconstruction (1865-1877) blacks were elected to every level of government because they were protected by the Feds. When Reconstruction ended (along with Federal protections) at least 35 black elected officials were murdered by the Klan. It’s tempting to write that off to 19th century history. But the violence and intimidation continued. A few years before the land mark case of Brown v. Board of Education (1954) Thurgood Marshall (who eventually became the first black U.S. Supreme Court Justice) won an acquittal of a black man in a Tennessee Court room. As Marshall left the small town, police pulled him over and drove him to a river bank where a large lynch mob was waiting for him. But for the heroics of Marshall’s co-counsel, the lawyer who would later argue Brown v. Board would have met his end on a bridge in Tennessee. Has it gotten better? Yes it has, but Marshall might say things in the 1950’s were better than the 1870’s. If a person needs further proof, find a county in the Deep South which has a minority population between 35%-60%. Go to any criminal court arraignment calendar in the county (doesn’t matter if it’s city court, state court, or superior court). Bring a calculator. Look at who’s sitting in the courtroom and crunch the numbers. It is not unusual to see minority defendants make up 90% to 95% percent of the calendar.  You can have a black judge and prosecutor and the numbers are the same. That’s institutionalized discrimination, one individual can’t even identify where it’s coming from let alone stop it.

This is my heritage, my family proudly fought for the South. My grandfather’s grandfather fought in the Battle of Atlanta for the Confederacy. There’s nothing wrong with telling people your family history, but it’s important to be honest about that history. It’s difficult to paint ancestors and local heroes as racists because that characteristic overwhelms our memory. But maybe it’s time we started valuing others besides Johnny Reb? Many Quakers were hung because they refused to fight for the South. Where’s their monuments? There are few if any. Honorable Christian people who opposed slavery and violence died for their convictions, they don’t get monuments in the Deep South. Even today, they are silently viewed as cowards by many.

We laugh uncomfortably as small town locals point to bronze Confederate Soldiers saluting with their left hand while facing North (military equivalent to giving someone the bird). We hear the word “liberal” and “politically correct” spit out like curse words to anyone challenging the established narratives of Deep South heritage and pretend that’s a reasonable position. The Confederate fiction has gone on for 150 years. The recent events in South Carolina have given us a bipartisan opportunity to end the historical inaccuracies once and for all. The flag debate isn’t just about a piece of fabric. It’s about finally ending terror and discrimination hiding behind a make believe culture in the Deep South.