Wednesday, June 30, 2010

Burge Guilty Of Lying About Torture Of Suspects

Former Police Commander Allegedly Oversaw Abuse And Forced Confessions

Jon Burge, a decorated former Chicago police commander accused of suffocating, shocking and beating confessions out of scores of suspects, was convicted Monday of federal perjury and obstruction of justice charges for lying about the torture of detainees.

Burge, who did not react when the verdict was announced, now faces up to 45 years in prison. Sentencing is set for Nov. 5.

Jurors began deliberating late last week. They heard nearly five weeks of testimony from felons who described beatings, suffocations and games of Russian roulette at the hands of Burge and his men. They also heard from Burge, a decorated former officer and Vietnam veteran who repeatedly denied ever participating in physical abuse or witnessing any during his 28 years with the Chicago Police Department. 

The trial has hinged not on the alleged abuse, but whether Burge lied about it in court proceedings. He pleaded not guilty to charges accusing him of lying in a civil suit when he denied committing or witnessing torture.

"I'm not going to say it's a perfect measure of justice," U.S. Attorney Patrick Fitzgerald said of the verdict. "It's a measure of justice. It's sad it took so long, but it would be horrible if it were never addressed."

In a similar vein, attorney Flint Taylor, who has represented alleged torture victims, called Monday's decision "some modicum of justice." But he argues the torture victims should receive compensation and Burge's alleged accomplices should also be brought to justice.

An emotional Mark Clements, who says he was abused by some of Burge's detectives and imprisoned at age 16 on a false confession of arson, said he was "relieved."

"Finally, at least one of these people are now going to finally feel the pain," he told reporters in the lobby of the U.S. Dirksen Courthouse. "My daughter's 29 years old. I missed all those years with my daughter, sitting in those prison cells for a crime I did not commit. I do not feel sorry for Jon Burge."

Burge was cast as both a calculating torturer who took the law into his own hands and an honorable investigator who dedicated his life to making the streets safer as federal prosecutors and defense attorneys closed their cases Thursday.

For decades, scores of suspects — almost all of them black men — have alleged that Burge and a team of officers tortured them into confessing to crimes from armed robbery to murder. Burge's 2008 indictment marked the first time he was criminally charged in connection with torture claims — something that has created outrage in Chicago's black neighborhoods.

Prosecutors presented testimony from five men who said Burge or his officers shocked, suffocated and beat them into giving confessions. One man testified that Burge removed all the bullets but one from his gun, pointed it at his head and pulled the trigger three times.

Burge's name has become synonymous with police brutality and abuse of power in the country's third-largest city. For decades, dozens of suspects -- almost all of them black men -- claimed Burge and his officers tortured them into confessing to crimes ranging from armed robbery to murder.

Former Ill. Gov. George Ryan released four condemned men from death row in 2003 after Ryan said Burge had extracted confessions from them using torture.

The allegations of torture and coerced confessions eventually led to a still-standing moratorium on Illinois' death penalty and the emptying of death row -- moves credited with re-igniting the global fight against capital punishment.

But they also earned Chicago a reputation as a haven for rogue cops, a place where police could abuse suspects without notice or punishment.

While Burge was fired from the police department in 1993 over the alleged mistreatment of a suspect, he never was criminally charged in that case or any other, a situation that created widespread outrage in Chicago's black neighborhoods. The community anger intensified when Burge moved to Florida on his police pension and his alleged victims remained in prison. 

Chicago Mayor Richard M. Daley was Cook County state's attorney when many of the Burge-related cases were under investigation and in court. City Law Department spokeswoman Jennifer Hoyle said Monday that Daley had given a sworn statement to the special prosecutors before they issued a report in 2006. The report found dozens of men had credible claims of abuse but that the statute of limitations had run out on any relevant crimes

Daley hasn't been charged with any wrongdoing.

"I was very proud of my role as prosecutor, I was not the mayor, I was not the police chief, I did not promote this man in the 80s, so let's put everything into perspective," the mayor said.

Monday, June 28, 2010

A new legal caste system? Read the book

By Leonard Pitts

`You have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this all while not appearing to.'' -- Richard Nixon as quoted by H.R. Haldeman, supporting a get-tough-on drugs strategy.

``They give [black people] time like it's lunch down there. You go down there looking for justice, that's what you find: just us.'' -- Richard Pryor.

Michelle Alexander was an ACLU attorney in Oakland, preparing a racial profiling lawsuit against the California Highway Patrol. The ACLU had put out a request for anyone who had been profiled to get in touch. One day, in walked this black man.

 
He was maybe 19 and toted a thick sheaf of papers, what Alexander calls an ``incredibly detailed'' accounting of at least a dozen police stops over a nine month period, with dates, places and officers' names. This was, she thought, a ``dream plaintiff.''

 
But it turned out he had a record, a drug felony -- and she told him she couldn't use him; the state's attorney would eat him alive. He insisted he was innocent, said police had planted drugs and beaten him. But she was no longer listening. Finally, enraged, he snatched the papers back and started shredding them.

 
``You're no better than the police,'' he cried. ``You're doing what they did to me!'' The conviction meant he couldn't work or go to school, had to live with his grandmother. Did Alexander know how that felt? And she wanted a dream plaintiff? ``Just go to my neighborhood,'' he said. ``See if you can find one black man my age they haven't gotten to already.''

 
She saw him again a couple months later. He gave her a potted plant from his grandmother's porch -- he couldn't afford flowers -- and apologized. A few months after that, a scandal broke: Oakland police officers accused of planting drugs and beating up innocent victims. One of the officers involved was the one named by that young man.

 
``It was,'' says Alexander now, over ten years later, ``the beginning of me asking some hard questions of myself as a civil rights lawyer. ... What is actually going on in his neighborhood? How is it that they've already gotten to all the young African American men in his neighborhood? I began questioning my own assumptions about how the criminal justice system works.''

 
The result is a compelling new book. Others have written of the racial bias of the criminal injustice system. In The New Jim Crow, Alexander goes a provocative step further. She contends that the mass incarceration of black men for nonviolent drug offenses, combined with sentencing disparities and laws making it legal to discriminate against felons in housing, employment, education and voting, constitute nothing less than a new racial caste system. A new segregation.

 
She has a point. Yes, the War on Drugs is officially race-neutral. So were the grandfather clause and other Jim Crow laws whose intention and effect was nevertheless to restrict black freedom.
The War on Drugs is a war on African-American people and we countenance it because we implicitly accept certain assumptions sold to us by news and entertainment media, chief among them that drug use is rampant in the black community. But. The. Assumption. Is. Wrong.

 
According to federal figures, blacks and whites use drugs at a roughly equal rate in percentage terms. In terms of raw numbers, whites are far and away the biggest users -- and dealers -- of illegal drugs.
So why aren't cops kicking their doors in? Why aren't their sons pulled over a dozen times in nine months? Why are black men 12 times likelier to be jailed for drugs than white ones? Why aren't white communities robbed of their fathers, brothers, sons?

 
With inexorable logic, the New Jim Crow propounds an answer many will resist and most have not even considered. It is a troubling and profoundly necessary book.
Please read it.

Friday, June 25, 2010

Monroe Sex-Offender Records Dispute Revealed In Newest Lawsuit Won by Prison Newspaper


The monthly Prison Legal News has notched another victory in opening state Department of Corrections records, this time prying lose details of a labor grievance between DOC and a Monroe prison sex-offender treatment specialist fired for "significant factual inaccuracies" in inmate records. Though she was later reinstated by an arbitrator, the misconduct charges included cutting and pasting sexual histories from one prisoner's file into the file of another inmate.
PLN Editor Paul Wright says he was concerned about the incident and is trying to determine if there are others like it. Compiling incorrect histories could affect the type of treatment an inmate receives, he says. It could also be a factor in deciding whether a criminal sex offender will be civilly, and indeterminately, committed to the Special Commitment Center at McNeil Island upon finishing his prison term.
DOC spokesperson Rowlanda Cawthon says the Twin Rivers (Monroe) treatment specialist, Urszula Gaweda, was fired in 2006. According to DOC records, she "copied and pasted" from file to file and failed to correct the errors when told about them. Ruben Cedeno, prisons deputy secretary, concluded after an investigation that discharge was merited.
In summary, the evidence shows you repeatedly failed to maintain and secure adequate offender records, committed errors in offender records, then resisted correcting the errors, and that you either knew, or had reason to know that your actions severely compromised offender care.
But Gaweda was reinstated in 2007 and given $21,000 back pay in a grievance settlement supported by Gaweda's union, Teamsters Local 117. "The arbitrator's ruling required the Department of Corrections to overturn its decision and reinstate her," says Cawthon. "We have been working diligently with the employee to make changes" and there have been no repeat incidents, she said.
Editor Wright and PLN have regularly contested DOC's reluctance to release some public records. In 2007, PLN was awarded $541,000 from the state for illegally withholding disciplinary records of state prison medical providers.
In this case, DOC notified Gaweda that PLN was seeking records about her job dispute and she went to court in Snohomish County to block the release. A judge ruled she failed to show how disclosure would "substantially and irreparably damage" her or the state, and ordered DOC to hand over the records.
Neither Gaweda nor her attorney responded to telephone and e-mail requests for comment. Last week the court also ruled Gaweda would have to pay PLN's $2,000 legal fees.

35 Va. inmates file suits to stop prison violence

Thirty-five inmates at a Virginia prison, fed up with rape and sodomy at the institution, have filed federal lawsuits seeking an end to prison violence.
The lawsuits come at the same time a group of prisoner advocates are demanding that the U.S. attorney general implement regulations, ordered by Congress, to eliminate sexual attacks in prisons.
Scott Howard-Smith of Wisconsin says his story is similar to those of other prison rape victims. Imprisoned in Colorado as a nonviolent offender, he was housed with violent gang members who forced him into prostitution. He said he was passed around for $5. His complaints, he said, were ignored.
Howard-Smith spoke Wednesday at a news conference sponsored by Just Detention International, an advocacy group seeking an end to sexual attacks in prisons.
"The attacks that I suffered were devastating," Howard-Smith said. "I was repeatedly raped, assaulted and extorted by members of a notorious white supremacy gang."
The group is trying to put pressure on Attorney General Eric Holder to implement regulations under the Prison Rape Elimination Act, a 2003 law passed by Congress with bipartisan support. Wednesday was the deadline for Holder to implement the rules, but his office has indicated it will need several more months.
Virginia says it already has requirements of the act in place, but other states have balked at the law, citing costs. Alabama, for example, said it would cost $58 million to start such a program in that state; New Mexico estimated its cost at $12 million.
Virginia Department of Corrections spokesman Larry Traylor said the requirements of the Prison Rape Elimination Act are covered in the basic training program for guards and reviewed annually during training.
The department also provides orientation regarding sexual victimization for all incoming male and female offenders, which is repeated if someone is transferred.
"The information provided is adequate to assist inmates if they heed the guidance," Traylor said in an e-mail. "The subject matter covered in orientation includes: ways to avoid sexual victimization, such as avoiding debt, not seeking protection from other inmates, not soliciting favors, not gambling, etc.
"Guidance is also provided regarding courses of action if one is a victim of sexual misconduct or sexual assault and protection is available from prison staff. Counselors/psychologists are available to provide individual guidance and address interpersonal issues," Traylor said.
The department also separates violent, predatory inmates from those who "want to better themselves and take advantage of prison programs," he added.
The inmates who sued say the department hasn't done enough to prevent sexual assaults and other prison violence. But inmate lawsuits, filed by the thousands each year, face significant hurdles, especially when pursued without attorneys, as in these cases.
The lead plaintiff, John R. Lay, a convicted violent sex offender from Northern Virginia, has filed around three dozen lawsuits challenging his imprisonment or claiming civil rights violations.
Other plaintiffs also have violent backgrounds. Linwood Jenkins, 48, is serving a life term for a string of offenses, including maiming, use of a firearm and robbery in Isle of Wight County. Nelson Bradley, 47, is serving life for a Lynchburg homicide. Rodney F. White, 44, is also serving life for rape and robbery in Northern Virginia.
The other 31 suits are pending in the Alexandria federal court. All 35 inmates are at the Nottoway Correctional Center outside Richmond.
The lawsuit contains a long list of complaints, but the chief claim is "widespread gang activity" including rape, sodomy, stabbings, robbery and drug use. Prison officials have ignored their complaints, the suit says.
Four of the inmates, who filed suits individually earlier this month after being denied class-action status, cleared their first hurdle when a Norfolk federal judge allowed the suits to go forward as long as they submit answers to a questionnaire.
Traylor said the department does not comment on pending litigation.
Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com

Wednesday, June 23, 2010

Sean Levert widow awarded $4 million for jail death

CLEVELAND -- The widow of R&B singer, Sean Levert, has been awarded $4 million after suing Cuyahoga County for her husband's death while in jail.

Jail security cameras captured disturbing images of Levert strapped to a chair suffering from withdrawal from the anti-anxiety drug, Xanax.
Levert's attorney argued that jail staff deliberately refused Sean Levert his medication while the singer spent 2-weeks in the jail in 2008.
The coroner says Xanax withdrawal contributed to Levert's death.
A magistrate settled the suit Wednesday before it went to trial.
"No amount of money will bring my husband back. No matter what amount of money they offered would be enough. I believe the county and staff were fair to my family. Now I must move on and take care of my sons," said Angela Lowe, Levert's widow.
Lowe says she will press state lawmakers to pass "Sean's Law". It would create a uniform standard for administering prescription drugs to inmates in jails across Ohio.
The 39-year-old Levert was jailed on March 24, 2008, for owing nearly $90,000 in child support.  He died six days later.
He was a member of the 1980's R&B trio LeVert and the son of O'Jays lead vocalist, Eddie Levert.

Wednesday, June 16, 2010

Man wins $1.3M in malicious prosecution case

Fabricated confession had landed him three years in prison

By Duaa Eldeib, Tribune reporter
6:54 PM CDT, June 9, 2010
Donny McGee, who was arrested for the gruesome 2001 murder of his 76-year-old neighbor three days before his wedding, was awarded $1.3 million after a Cook County jury found Tuesday that three members of the Chicago Police Department made up his confession.
Police, facing public pressure to solve the murder of Ethel Perstlen, arrested McGee and then said he voluntarily confessed to the crime — though there was no physical evidence or a written or taped confession, according to the lawsuit filed by McGee. Perstlen was found stabbed and burned beyond recognition in the bathtub of her Clearing home in April 2001.
"The murder was every Chicagoan's nightmare," said McGee's attorney, Russell Ainsworth. "When he refused to confess to the murder, they fabricated it."
McGee, who was acquitted of the murder in 90 minutes by a jury in 2004 after serving three years in prison, filed a lawsuit against the City of Chicago, detectives Edward Farley and Robert Lenihan and Officer Robert Bartik. DNA evidence excluded McGee from committing the crime, Ainsworth said.
The jury found the defendants guilty of malicious prosecution but denied a claim of intentional infliction of emotional distress. The city was ordered to pay $975,000 in compensatory damages, and the three officers must pay $110,000 each in punitive damages. Farley and Bartik are still with the department, and Lenihan has since retired.
"These officers lied," McGee, 35, said. "(The jury) saw the truth, and the truth is by their verdict."
Andrew Hale, who represented the city and the officers, called the ruling a "huge travesty."
"The whole case came down to did he confess or not?" Hale said. "And I thought the evidence was overwhelming that he confessed. The jury would have to believe that these three defendants made this all up. For what?"
Ainsworth's firm, Loevy & Loevy, is also pursuing a separate case of a false confession against Bartik.
"The way it turned out, the person who confessed to the murder is actually obtaining money from the officers he confessed to," Hale said. "Justice wasn't served."
Hale said he plans to appeal the ruling.

Sunday, June 13, 2010

Facing Misconduct Claims, Brooklyn Prosecutor Agrees to Free Man Held 15 Years


Pool photo by Jesse Ward
The chief of the rackets bureau in the Brooklyn district attorney's office, Michael F. Vecchione, in court in 2007.
The agreement means that the man, Jabbar Collins, who 15 years ago was sentenced to 34 years to life in the murder of a Brooklyn landlord, will be freed later this week — the culmination of years of his own legal efforts to bring light to prosecutorial misconduct that he said deprived him of a fair trial.
The decision also spares officials from the Brooklyn district attorney’s office — most notably the hard-charging prosecutor who oversaw the case, Michael F. Vecchione — from being compelled to testify about the allegations of misconduct during a habeas corpus hearing that was set to resume this week.
The deal amounted to a rare and embarrassing admission by the Brooklyn district attorney’s office — which had initially insisted that Mr. Collins be retried — that the case had been mishandled.
Judge Dora L. Irizarry, of the United States District Court in Brooklyn, lamented that in agreeing to free Mr. Collins, the district attorney’s office had avoided a hearing that would have offered greater transparency into the case’s “troubling history.”
“It is indeed beyond disappointing, it is really sad that the district attorney’s office persists in standing firm and saying that it did nothing wrong here,” the judge said. She described the handling of the case by the district attorney’s office as “shameful.”
The case cast a new, unflattering glare on Mr. Vecchione, who has overseen numerous high-profile cases in Brooklyn and even was one of the authors of a book about his exploits in the “Mafia Cops” case. In that book, “Friends of the Family,” he described himself as “a prosecutor with a passion for justice who had spent most of his life trying to make sure bad things happened to bad people.”
But he has also been dogged by allegations of impropriety from defense lawyers, and former colleagues who say his eye for the spotlight and willingness to cut corners to win convictions have caused some cases to fall apart, including the high-profile murder trial of Roy Lindley DeVecchio, a former F.B.I. agent.
“Prosecutors are supposed to hit hard, but he went far beyond,” said Douglas E. Grover, who was Mr. DeVecchio’s lawyer.
From prison, Mr. Collins, 37, had amassed evidence of misconduct by Mr. Vecchione, whom he accused of “playing God” by threatening a witness with physical violence, failing to turn over exculpatory evidence to the defense, knowingly eliciting inaccurate testimony and making false statements.
Through a spokesman, Mr. Vecchione refused to comment on Tuesday. But in 2006, he offered a sworn affidavit denying any wrongdoing, saying that he held himself and those who worked for him “to a high professional standard.” Judge Irizarry described Mr. Vecchione’s statements in that affidavit as beyond credulity.
Brooklyn District Attorney Charles J. Hynes, who was in office during Mr. Collins’s initial trial, vigorously defended Mr. Vecchione, who he said would not face any investigation or disciplinary action.
“Anyone who knows Mike Vecchione, who has ever seen him in action, knows that he is a very, very principled lawyer,” Mr. Hynes said. He also defended the office’s handling of the case and said the decision to drop it had nothing to do with the allegations of misconduct but rather the passage of time since the slaying.
Joel B. Rudin, who represented Mr. Collins in the hearing, called Mr. Vecchione’s conduct disgraceful. “I was looking forward to confronting him with his affidavit and his statements at the trial and comparing those statements to the truth,” he said. “Obviously in the final analysis, the district attorney did not want to expose Mr. Vecchione to cross-examination.”
Ellen Yaroshefsky, the director of the Jacob Burns Center for Ethics in the Practice of Law at Cardozo Law School, said the decision to free Mr. Collins without a hearing raised red flags. “It is important that the D.A.’s office examine what went wrong and hold individual prosecutors accountable for any misconduct,” she said. “Transparency and accountability are essential.”
The chain of events that led to vacating the case against Mr. Collins began last month when, after years defending the handling of the case, the district attorney’s office acknowledged that a key witness had briefly recanted his testimony in the presence of a prosecutor before trial, a fact never disclosed to the defense. The office, which said it had just discovered the information, offered to release Mr. Collins if he pleaded guilty to a reduced charge of manslaughter, but Mr. Collins declined, saying he was willing to risk retrial to clear his name.
On Tuesday, in a court packed with family members including his three children, Mr. Collins thanked Judge Irizarry “for finally giving me the day in court that I have been deprived of the last 15 years of my life.”
Several family members of Abraham Pollack, the Brooklyn landlord and father of nine who was shot and killed in 1994, were also in the courtroom; they said they remained convinced that Mr. Collins was guilty.
While the decision concludes Mr. Collins’s long battle for freedom, it remains unclear whether the allegations of misconduct will have any impact on Mr. Vecchione, the chief of the rackets bureau and a 25-year veteran of the district attorney’s office.
“Unquestionably, whether you agree with him or not, whether you like him or not, he’s an aggressive prosecutor,” said Richard E. Mischel, a defense lawyer who faced Mr. Vecchione in the case of the Brooklyn political leader Clarence Norman Jr. “That’s not a criticism, it’s just an observation.”
Bruce Barket, a defense lawyer who pushed successfully to have another man who had been convicted of murder released during a 2003 habeas corpus hearing that featured similar allegations of misconduct, said he believed that Mr. Vecchione had a history of crossing the line in pursuit of convictions.
Mr. Barket said that in his case, he presented evidence that Mr. Vecchione had concealed from the defense the information that a key witness had been arrested on rape charges. Then at the trial, Mr. Vecchione allowed the witness to lie on the stand when he stated that he had never sought or received anything in return for his testimony — when, in fact, the lawyer for the witness said that he had sought a deal.
Immediately after the trial, the witness was allowed to plead guilty to reduced charges that did not include rape.
The cooperation agreement was personally signed by Mr. Vecchione. The agreement was never revealed to the defense in two subsequent trials that he supervised. And Mr. Vecchione also later, in a letter to the Nassau County district attorney’s office, denied the existence of the agreement.
The district attorney’s office also agreed to settle that case shortly before a ruling in the habeas corpus hearing from Judge Edward R. Korman of United States District Court in Brooklyn, who had expressed skepticism about Mr. Vecchione’s testimony. The defendant was immediately released.
“Everyone pushes the envelope to some degree; everyone looks for strategic advantage,” Mr. Barket said. “That’s fine. But you have to play by the rules. What I’ve not seen is someone who disregards the rules so flagrantly. He looks at the rules as obstacles.”
“I don’t understand how he can continue to prosecute criminal cases,” he added.
In the murder case vacated on Tuesday, there were serious questions raised about each of the three main witnesses who testified against Mr. Collins at the original trial. One of them, Angel Santos, was the only person to testify in the aborted habeas corpus hearing, before the district attorney agreed to the unconditional release of Mr. Collins.
Speaking reluctantly and at times saying he was unable to answer questions because his memory of the period “was all screwed up” by drugs, Mr. Santos described being coerced by Mr. Vecchione at the initial trial. “I told them I didn’t want to get involved, so what they did, they locked me up,” he testified. Mr. Vecchione repeatedly threatened to hit him and said, “If you don’t testify you’re going to be in jail a long time,” Mr. Santos said. He said he was held in jail for a week before he agreed to testify and was kept in custody until he testified against Mr. Collins.
In 2006, Mr. Vecchione signed a sworn affidavit stating: “No deals were made with witnesses that were not disclosed by me to the court and the defense. No witness ever recanted a prior statement or grand jury testimony. No witness had to be threatened or forced to testify.”
Mr. Rudin, the defense lawyer, declined to say whether Mr. Collins would file a civil suit or any formal complaints relating to the case. “Everything will be studied at the appropriate time. Right now we have to get him home and get him with his family,” he said. “But it’s not going to end here.” 

Wednesday, June 9, 2010

Why is it illegal to record on-duty cops?

BY RADLEY BALKO

Last week, a Cook County judge rejected Chicago artist Christopher Drew's motion to dismiss a Class I felony charge against him. Drew is charged with violating Illinois' eavesdropping statute when he recorded his encounter with a police officer last December on the streets of Chicago.

If found guilty, he could be sentenced to four to 15 years in prison.

I'm currently working on a feature story for Reason Magazine, where I am a senior editor, about a man in a more rural part of Illinois charged with six violations of the same statute, all of them for making audio recordings of on-duty public officials. For several of the counts in that case, the police were actually on the man's property. He started recording his conversations with police because he felt he was being unjustly harassed for violating a town ordinance he thought was unconstitutional.

I'm of the opinion that it should always be legal to record on-duty police officers, both as a matter of policy and under the free speech, free press and right to petition the government provisions in the First Amendment. We saw the power of audio and video recording technology to expose government abuse in the Iranian protests last summer. But we also see it here in the U.S. with the thousands of police-misconduct videos -- including several made in Chicago -- uploaded to YouTube in recent years.

Typically, police who want to arrest someone for recording them while on duty use a strained interpretation of state wiretapping laws or whatever state or local law addresses obstructing or interfering with law enforcement. These incidents are troubling enough, and I think state legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials. Those laws should include remedies for people wrongly arrested, or who have had their cameras or cell phones illegally confiscated, damaged or destroyed.

But in Illinois, the situation is quite a bit worse. In Illinois, it actually is illegal to make audio recordings of on-duty cops -- or any other public official.

Illinois is one of a handful of states that require all parties to consent before someone can record a conversation. But the other all-party-consent states -- with the additional exception of Massachusetts -- also include a provision that for there to be a violation of the law, the nonconsenting party must have a reasonable expectation of privacy. On-duty police officers in public spaces have no such expectation.
Here's where it gets even worse: Originally, the Illinois eavesdropping law did, in fact, include an expectation of privacy provision.

But the Legislature stripped that provision out in 1994, and they did so in response to an incident in which a citizen recorded his interaction with two on-duty police officers. In other words, the Illinois Legislature specifically intended to make it a Class I felony, punishable by up to 15 years in prison, to make an audio recording of an on-duty police officer without his permission.

Given the spate of recent stories about cops in Chicago caught on video misbehaving, the state Legislature's already-awful-when-it-passed 1994 amendment hasn't aged well.

I suspect most state officials know this law is unconstitutional. While several people have been charged under the statute for recording public officials, I've been unable to find anyone who was actually convicted. Prosecutors tend to either drop the charges or offer a plea bargain before the case gets to trial. It isn't difficult to see why someone would take a misdemeanor plea and a clean record instead of challenging a bad law and risking up to 15 years in prison and a felony record if they lose.

So the law remains on the books.

Which means the police in Illinois remain authorized by law to detain, arrest and jail people who record them while on-duty, and they can continue to confiscate the recordings.

Radley Balko is a senior editor at the libertarian journal Reason, where this essay was posted online.

Monday, June 7, 2010

Are Cameras the New Guns?

Are Cameras the New Guns?In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states (Illinois, Massachusetts, and Maryland), it is now illegal to record an on-duty police officer even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.
The legal justification for arresting the “shooter” rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested.   Most all-party-consent states also include an exception for recording in public places where “no expectation of privacy exists” (Illinois does not) but in practice this exception is not being recognized.
Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, “[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want.”  Legal scholar and professor Jonathan Turley agrees, “The police are basing this claim on a ridiculous reading of the two-party consent surveillance law — requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense.”
The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler’s license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.
In 2001, when Michael Hyde was arrested for criminally violating the state’s electronic surveillance law — aka recording a police encounter — the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, “Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals….” (Note: In some states it is the audio alone that makes the recording illegal.)
The selection of “shooters” targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.
Glik captured a police action on his cellphone to document what he considered to be excessive force. He was not only arrested, his phone was also seized.
On his website Drew wrote, “Myself and three other artists who documented my actions tried for two months to get the police to arrest me for selling art downtown so we could test the Chicago peddlers license law. The police hesitated for two months because they knew it would mean a federal court case. With this felony charge they are trying to avoid this test and ruin me financially and stain my credibility.”
Hyde used his recording to file a harassment complaint against the police. After doing so, he was criminally charged.
In short, recordings that are flattering to the police — an officer kissing a baby or rescuing a dog — will almost certainly not result in prosecution even if they are done without all-party consent. The only people who seem prone to prosecution are those who embarrass or confront the police, or who somehow challenge the law. If true, then the prosecutions are a form of social control to discourage criticism of the police or simple dissent.
A recent arrest in Maryland is both typical and disturbing.
On March 5, 24-year-old Anthony John Graber III’s motorcycle was pulled over for speeding. He is currently facing criminal charges for a video he recorded on his helmet-mounted camera during the traffic stop.
The case is disturbing because:
1) Graber was not arrested immediately. Ten days after the encounter, he posted some of he material to YouTube, and it embarrassed Trooper J. D. Uhler. The trooper, who was in plainclothes and an unmarked car, jumped out waving a gun and screaming. Only later did Uhler identify himself as a police officer. When the YouTube video was discovered the police got a warrant against Graber, searched his parents’ house (where he presumably lives), seized equipment, and charged him with a violation of wiretapping law.
2) Baltimore criminal defense attorney Steven D. Silverman said he had never heard of the Maryland wiretap law being used in this manner. In other words, Maryland has joined the expanding trend of criminalizing the act of recording police abuse. Silverman surmises, “It’s more [about] ‘contempt of cop’ than the violation of the wiretapping law.”
3) Police spokesman Gregory M. Shipley is defending the pursuit of charges against Graber, denying that it is “some capricious retribution” and citing as justification the particularly egregious nature of Graber’s traffic offenses. Oddly, however, the offenses were not so egregious as to cause his arrest before the video appeared.
Almost without exception, police officials have staunchly supported the arresting officers. This argues strongly against the idea that some rogue officers are overreacting or that a few cops have something to hide. “Arrest those who record the police” appears to be official policy, and it’s backed by the courts.
Carlos Miller at the Photography Is Not A Crime website offers an explanation: “For the second time in less than a month, a police officer was convicted from evidence obtained from a videotape. The first officer to be convicted was New York City Police Officer Patrick Pogan, who would never have stood trial had it not been for a video posted on Youtube showing him body slamming a bicyclist before charging him with assault on an officer. The second officer to be convicted was Ottawa Hills (Ohio) Police Officer Thomas White, who shot a motorcyclist in the back after a traffic stop, permanently paralyzing the 24-year-old man.”
When the police act as though cameras were the equivalent of guns pointed at them, there is a sense in which they are correct. Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop.
Happily, even as the practice of arresting “shooters” expands, there are signs of effective backlash. At least one Pennsylvania jurisdiction has reaffirmed the right to video in public places. As part of a settlement with ACLU attorneys who represented an arrested “shooter,” the police in Spring City and East Vincent Township adopted a written policy allowing the recording of on-duty policemen.
As journalist Radley Balko declares, “State legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials.”
Wendy McElroy is the author of several books on anarchism and feminism. She maintains the iconoclastic website ifeminists.net as well as an active blog at wendymcelroy.com.

The author of this post can be contacted at tips@gizmodo.com

City to Pay $9.9 Million Over Man’s Imprisonment

New York City agreed on Thursday to pay $9.9 million, the largest personal settlement in its history, to a man who served almost two decades in prison but was released after evidence surfaced that he had been framed for murder by a corrupt detective.
Katie Orlinsky for The New York Times
“They are permanent scars,” said Barry Gibbs, who says he was falsely convicted of killing a prostitute. He received $1.9 million from the state.
The man, Barry Gibbs, had served 19 years in prison when his conviction was overturned in 2005 after questions were raised about how his case had been handled by Louis J. Eppolito, a New York City police detective, one of the notorious “Mafia cops” serving life in prison for taking part in mob-related killings.
Mr. Gibbs sued the city in 2006, and a civil trial was scheduled to begin this month in United States District Court in Brooklyn.
“The settlement I’m happy with; it was my bottom-line settlement,” Mr. Gibbs said in an interview, sounding almost indifferent to the news. “They are permanent scars,” he added. “It’s been a long road. I’ve been through a lot, and it was very traumatic for me.”
Mr. Gibbs, 62, who has recently wrestled with severe health problems, previously received a $1.9 million settlement from the state.
The conviction stemmed from the 1986 killing of a 27-year-old prostitute, who was strangled and dumped near the Belt Parkway. Mr. Eppolito led the investigation, and he quickly zeroed in on Mr. Gibbs, a postal worker who was struggling with drug addiction and previously had a relationship with the woman. Mr. Gibbs was sentenced to 20 years to life in prison.
Mr. Eppolito and a former partner, Stephen Caracappa, were arrested on federal racketeering charges in 2005, accused of being paid by members of the Luchese crime family to pass along information about law enforcement investigations and of taking part in killings for the mob.
The original case file for Mr. Gibbs was found in Mr. Eppolito’s home in Las Vegas, where he had stored it illegally.
After a key witness told investigators that Mr. Eppolito had forced him to falsely identify Mr. Gibbs, a Brooklyn judge overturned the conviction.
Mr. Gibbs filed a sweeping civil rights lawsuit that claimed Mr. Eppolito “deliberately fabricated witness statements and police reports, withheld material, exculpatory evidence from prosecutors and intentionally failed to conduct an adequate investigation,” as well as beat Mr. Gibbs to elicit a false confession.
Lawyers for Mr. Gibbs said they believed that Mr. Eppolito focused the investigation on Mr. Gibbs because he was trying to protect the real killer, who might have had mob ties.
They said the Police Department had enough information to fire Mr. Eppolito years earlier, pointing to an investigation of Mr. Eppolito that resulted in no disciplinary action, even though it was determined that police documents that had been leaked to a mobster carried Mr. Eppolito’s fingerprints.
“It’s a horrible injustice,” said Barry C. Scheck, one of Mr. Gibbs’s lawyers and a co-director of the Innocence Project at the Benjamin N. Cardozo School of Law. “He was in prison close to 19 years, and he was framed by one of the worst cops that ever served in the New York City police force, a man who disgraced the badge.”
(The Innocence Project helped get Mr. Gibbs’s verdict overturned, but Mr. Scheck represented Mr. Gibbs in his lawsuit through his private firm and will receive one-third of the settlement, the standard contingency fee.)
In hearings on the lawsuit, New York City maintained that Mr. Gibbs was guilty of the crime. The city would not go into detail about why it decided to settle, but released a statement that said, “We have agreed to settle this case and believe it is in the best interest of all parties.”
It was the largest individual settlement the city has ever paid, said Connie Pankratz, a spokeswoman with the city’s Law Department. The next largest, $9.5 million, went to Maria Tipaldo in 2006. She was rendered a quadriplegic when her car was hit by an oncoming vehicle on a Brooklyn bridge that had no median divider despite having a history of crossover accidents.
Franklyn Waldron, a Brooklyn handyman, received an $8 million settlement in 2000 after he was shot by a police officer and paralyzed.
Abner Louima, who was tortured with a broken broomstick while in police custody, received $7.125 million from the city in 2001 and $1.625 million from the police union.
Since his release, Mr. Gibbs said, he has reconnected with his son and three young grandchildren. He is engaged to a childhood friend from Brooklyn, and is recovering from surgery for colon cancer and attending therapy regularly.
Mr. Gibbs even attended a sentencing hearing for Mr. Eppolito and Mr. Caracappa, who are serving life plus 100 years in prison, during which he was escorted out for yelling: “Do you remember me? I’m the guy you put away for 19 years!”
Mr. Gibbs planned to celebrate with his lawyers on Thursday night.
“I’m surviving in this world out here,” he said. “It’s not easy readjusting to this life. Computers, phones, cars, everything — it was overwhelming to me when I first got out. Now I just flow with it.”
Mr. Scheck said that during a deposition in 2008, Mr. Eppolito repeatedly proclaimed that he had been framed. “He kept on saying: ‘You know I’m innocent. I’m a case for the Innocence Project.’ ” 

SWAT Raids Gone Wrong -- Paramilitary Policing Is Out of Control

By Phillip S. Smith

As is periodically the case, law enforcement SWAT teams have once again come under the harsh gaze of a public outraged and puzzled by their excesses. First, it was the February SWAT raid on a Columbia, Missouri, home where police shot two dogs, killing one, as the suspect, his wife, and young son cowered. Police said they were looking for a dealer-sized stash of marijuana, but found only a pipe with residues. When police video of that raid hit the Internet and went viral this month, the public anger was palpable, especially in Columbia.

Then came a botched SWAT raid in Georgia -- not a forced entry, but otherwise highly aggressive, and directed at the wrong building -- that left a 76-year-old woman hospitalized with a heart attack.

And then came the tragedy in Detroit two weeks ago, where a member of a Detroit Police SWAT team killed seven-year-old Aiyana Jones as she slept on a living room couch. Allegedly, the officer had a tussle with the girl's grandmother as he charged through the door after a flash-bang grenade was thrown through the window, and the gun discharged accidentally, though the account has been disputed by the family's attorney. In this instance, police were not looking for drugs but for a murder suspect. He was later found in another apartment in the same house. Again, the public dismay and anger was palpable.

Botched (wrong address or wrong person) raids or raids where it appears excessive force has been used are certainly not a new phenomenon, as journalist Radley Balko documented in his 2006 study, "Overkill: The Rise of Paramilitary Policing in America." But most raids gone bad do not get such wide public or media attention.

The victims often are poor, or non-white, or both. Or -- worse yet -- they are criminal suspects, who generally generate little sympathy, even when they are abused.

And while they were originally created to handle very special problems -- terrorist incidents, hostage situations, and the like -- there just aren't that many of those. As a result the use of SWAT has seen "mission creep," where SWAT teams are now routinely called out to serve search warrants, particularly in drug cases. In 1980, 2,884 SWAT deployments were recorded nationwide; the number today is estimated by experts at 50,000 annually or more.

The sheer normality of SWAT teams doing drug raids now, as well the status of their victims, has resulted in effective immunity and impunity for SWAT teams that commit errors or engage in unnecessary force. Most of the time when a raid goes bad, nothing happens.

It seems to take an especially outrageous incident, like Columbia or Detroit, to inspire public concern, and even then, it is the citizenry and perhaps part of elected officialdom against the powerful law enforcement establishment. Creating effective oversight over SWAT teams and their paramilitary raids is not easy -- but it can be done, or at least started.

The now infamous 2008 raid on the home of Berwyn Heights, Maryland, Mayor Cheye Calvo by a Prince Georges County Police SWAT team is a case in point. In that raid, police were tracking a package they knew contained marijuana, and once it was delivered to Calvo's house and taken inside, the SWAT team rushed in, manhandled Calvo and his mother-in-law and shot and killed Calvo's two dogs.

Wednesday, June 2, 2010

Verdict upheld against police in gun-planting

Bob Egelko, Chronicle Staff Writer

A federal appeals court upheld $3.7 million
in damages Tuesday against the city of Oakland and two police officers
who, according to a jury, planted an assault rifle on a parolee's
property.

Jurors found in November 2007 that the officers had violated the civil
rights of the parolee, Torry Smith, and his then-girlfriend, Patricia
Gray, by fabricating a case against Smith to justify his arrest in
September 2004.

Smith spent 4 1/2 months in jail before being cleared.

The officers, John Parkinson and Marcus Midyett, denied wrongdoing. Alex
Katz, spokesman for City Attorney John Russo, called the verdict a
"travesty" Tuesday and said that "the officers are the victims."

John Burris, a lawyer for Smith and Gray, said Oakland should have fired
both officers.

Smith and Gray said the officers had entered their East Oakland home
while
they were in bed and questioned Smith about a drug dealer in whose car
Smith's bank card had allegedly been found. They arrested Smith and booked
him on a charge of possessing a semiautomatic weapon that they said they
found in his yard.

Prosecutors dropped the gun charge, but authorities kept Smith in jail as
a possible parole violator before clearing him in January 2005.

In the couple's lawsuit for false arrest, the officers testified that
Smith had told them the rifle belonged to Gray's brother. Both Smith and
Gray denied having a rifle, and the jury believed them.

U.S. Magistrate Edward Chen, who presided over the trial, said in a 2008
ruling upholding the verdict that there was much evidence that the
officers were lying, including their failure to mention Smith's alleged
admission in their police report on the arrest.

Chen said jurors were entitled to award substantial damages for the fear
and stress Smith suffered, the loss of his home and his job at a retail
store and the breakup of his relationship with Gray. He also upheld
damages to Gray for emotional distress and $100,000 in punitive damages
against each officer.

The Ninth U.S. Circuit Court of Appeals in San Francisco upheld Chen's
ruling in a 3-0 decision Tuesday. The court said the city's lawyers had
done an about-face and were challenging jury instructions on illegal
police searches that they had accepted during the trial.

Katz said the ruling was based on "a narrow, technical issue" and that
the
city would consider a further appeal.

Former cop sues Buffalo Grove, officers over wrongful conviction

By Ted Cox

A former Willow Springs police officer filed a federal suit against Buffalo Grove and two fellow law-enforcement officers Friday after spending more than 19 years in a Missouri prison following a wrongful conviction for kidnapping.

Gary Engel's conviction for kidnapping a drug dealer was overturned in February and he was freed last month. Missouri was given 60 days to retry Engel, but did not.

The suit named former Chicago FBI agent Robert Buchan and former Buffalo Grove police officer Robert Quid as defendants, as well as the village. According to the suit, they had previously been defendants in a wrongful-conviction suit filed by former Chicago cop Steve Manning over his conviction in the associated James Pellegrino murder in Cook County in 1990, a case made after they had failed to make a previous Buffalo Grove murder stick against Manning.

The suit identifies Engel as a "friend and associate" of Manning and adds that Engel's ex-wife was Pellegrino's sister.

The suit charges that Buchan and Quid tried to compel Engel to testify against Manning in the Pellegrino case and threatened to charge him with a role in the Missouri kidnapping if he refused, even though he maintained he had never even been to Missouri, and that they followed through on that.

According to the suit, Manning's conviction in the murder was overturned in 1998, his kidnapping conviction followed in 2002, and a subsequent civil-rights case against the officers uncovered new evidence that led to Engel's release.

The Missouri Supreme Court found, in vacating Engel's conviction in February, that "material, exculpatory evidence had been withheld" from his defense and that a key witness had been paid for his testimony.

The new suit charges that Buchan and Quid deprived Engel of his right to a fair trial in that they "deliberately withheld exculpatory evidence, as well as fabricated false reports and other evidence."

Manning's case against Quid and Buffalo Grove "was settled for a confidential sum, and without an admission for liability," according to the suit. He won a $6.5 million jury judgment against Buchan and another FBI agent, although that was later "barred" on appeal.

Quid, who has retired to Fort Myers, Fla., declined to comment, and Buchan, also retired, could not be reached for comment. The FBI declined formal comment as well.

Engel's suit was filed by the Chicago firm of Loevy & Loevy, which filed a suit on behalf of Ronald Bell in his videotaped beating by Streamwood police officer James Mandarino on Thursday.

Witness talks about 'black box' in Burge trial

Leah Hope

A witness testified Tuesday about a "black box" that was allegedly used to torture Chicago suspects in the 1970s and 1980s.

The testimony was part of the trial of former Chicago Police Commander Jon Burge.

Burge is charged with perjury and obstruction of justice.

An attorney who once represented a man who says he was tortured by Burge told the jury that she once talked with the former police commander about the device her client said was used.

Congressman Danny Davis (D-Chicago) is drafting legislation that would remove the time limits to charge someone with torture. There can be no doubt that that drafting is related to the trial at the Dirksen Federal Building as the state is building the case against Burge that he lied about torture.

"Torture in the state of Illinois as well as the U.S., the continental U.S., ought to be made specifically illegal," said Stephen Eisenman of the Illinois Coalition Against Torture.

This morning activists with that organization made their plea at the Dirksen Federal Building - the same location where former Chicago Police Commander Jon Burge is on trial for allegedly lying about torturing suspects.

In day three of the trial, jurors heard from now-Cook County Administrative Law Judge Casandra Watson.

In 1982, she represented Melvin Jones. Watson testified that Jones told her Burge shocked him with a black box.

Watson says she regularly saw Burge in the 1980s and commented on the black box.

Watson testified: "I would say, 'Are you bringing out the black box today? Where's the black box today?'... Once, he said to me the black box leaves no marks."

Under cross-examination Watson was asked, "You vividly remember that comment from 28 years ago?"

Watson responded, "Yes, I do."

Prosecutors also called attorneys who represented Burge in a civil case brought by Madison Hobley.

Hobley alleged torture by Burge and was exonerated.

Hobley's attorneys submitted written questions to Burge that he was to answer under oath.

One of the questions asked if Burge knew anything about torture techniques used to intimidate suspects at Area Two.

Burge's sworn response in the document read in court: "I have not observed nor have any knowledge of abuse at Area Two."

Jon Loevy represented Madison Hobley and others who allege Burge tortured them.

"Although the statute of limitations has run on the torture and abuses, he is now being prosecuted for lying about them," said Loevy.

Jurors also heard testimony from a former public defender who represented Andrew Wilson.

Jurors were shown a picture of Wilson where he appeared to have some bruising and a bandage over his face. Under cross-examination, it came out that the timing of when that picture was taken is unclear.

Due to a scheduling conflict with the judge, the trial is off the rest of the week and will resume on Monday.

(Copyright ©2010 WLS-TV/DT. All Rights Reserved.)