Tuesday, December 28, 2010

My Life Saved by Reprieve of 24-year Sentence for Crack

By Kemba Smith Pradia (CNN)

Ten years ago, days before Christmas, President Bill Clinton changed my life forever. I was in federal prison, serving the seventh year of a 24-year sentence for a first-time nonviolent crack cocaine offense.

Clinton's mercy and acknowledgement that my sentence was unjust led him to grant me a commutation. Had he not done so, I would be in prison until 2016. On December 22, the anniversary of my release, I will join others in a fast for justice to honor those in prison who deserve the same relief from their long sentences for low-level drug offenses.

Many things have changed in the last decade. I graduated from college, attended law school, got married, raised my son who was born while I was incarcerated and gave birth to a daughter. I also established my own foundation to give hope to children of incarcerated parents.

At the same time, the sentencing law that I was convicted under came under intense scrutiny. This year, President Barack Obama signed the Fair Sentencing Act to limit the harsh mandatory minimum sentences associated with low-level crack cocaine offenses. Progress has been made.

But also since my release, an estimated 5,000 men and women have gone to federal prison each year for a crack cocaine offense. They have been subject to a sentencing structure that the U.S. Sentencing Commission, an independent judicial body, said applied "most often to offenders who perform low-level trafficking functions, wield little decision-making authority, and have limited responsibility."

Indeed, I went to prison for being complicit in my abusive boyfriend's crack cocaine trafficking operation. Prosecutors in the case acknowledged that I never sold, handled or used any drugs. Just as Clinton did 10 years ago, Obama should commute the sentences of many people serving egregiously long sentences for crack cocaine offenses.

When Congress created the crack cocaine sentencing law, it set very low quantities: 5 grams, the weight of two sugar packets; and 50 grams, the weight of a candy bar, to trigger five- and 10-year mandatory minimum sentences. A defendant charged with a powder cocaine offense would require 100 times the quantity of crack cocaine to receive the same mandatory minimum sentence.

Fortunately, this year Congress recognized that the 1986 law had failed to target drug kingpins and traffickers. More than 60% of crack cocaine defendants have been low-level offenders, such as street-level sellers, lookouts or couriers. Many of them have stories similar to mine and have the potential to contribute great things to their families and communities.

One example of the thousands serving an unjust sentence is Hamedah Hasan. She is a mother and grandmother, now serving the 17th year of a 27-year sentence for a nonviolent and low-level crack cocaine offense.

She had fled a physically abusive relationship to live with her cousin in Nebraska. Once she arrived, she realized that he was involved in a major drug operation. She ran minor errands for her cousin in exchange for having a roof over her head and the chance to escape her violent boyfriend.

Her sentencing judge is among her most ardent supporters. In a letter to the president, U.S. District Judge Richard G. Kopf said, "I can say, without equivocation, that Ms. Hasan is deserving of the president's mercy." Hasan filed a commutation petition on Presidents Day.

That there was bipartisan support for crack cocaine sentencing reform this year, a time of heightened political discontent, is a testament to the intolerable nature of these excessive sentences. But the Fair Sentencing Act is not retroactive, and so it does not help anyone serving time today under the law that both Congress and the president agree is unfair. This cruel treatment should not be allowed to continue, and my experience should serve as an example.

Through the power of commutation, Obama can provide relief to prisoners serving excessive sentences. While the president's clemency track record is bleak -- he has yet to issue any commutations since taking office -- I am hopeful he will see that justice requires his attention and that changing the lives of men and women in prison deserves his action.

Full article can be found here.

Sunday, December 19, 2010

Email Seizure Requires Warrant


For the first time, a federal appeals court ruled that law enforcement must seek a search warrant to search and seize email stored by an Internet Service Provider. The National Association of Criminal Defense Lawyers issued a press release, excerpted below:

In United States v. Warshak, the Sixth Circuit U.S. Court of Appeals held that government agents violated the defendant’s Fourth Amendment rights when they seized his stored email without a warrant, pursuant to an outdated law, the Stored Communications Act of 1986 (SCA). “An Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP,” the court said. “Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.”

More personal and business communications go by email than letter or fax today. The Stored Communications Act was written almost a quarter-century ago when electronic communications were a novelty, and very few people – including Congress itself – were familiar with electronic mail or even voicemail. Citizens today would find the archaic assumption that if an email stayed on a computer server for more than six month it was essentially “abandoned” as absurd.

Tuesday, December 14, 2010

Need to Get Lost? DeleteMe

Find yourself with old accounts you need to clean up, like the hotmail account that fills up with all the junk email you don't have time to read? Want to get rid of an old myspace or facebook? Delete Me can help...they charge for the service, but save you the hassle of finding old accounts and the hidden steps it sometimes takes to delete an account. They can also help with getting numbers on "do not call" lists and the like.

Monday, December 13, 2010

Leader of Mexican La Familia Cartel "El Chayo" Dead

Bloomberg Business Week
Nazario Moreno Gonzalez, the leader of Mexico’s La Familia drug cartel, was shot and killed December 8, 2010 by authorities in the western state of Michoacan, government security spokesman Alejandro Poire said today.

Moreno, known as “El Chayo,” was a founder of what the U.S. government calls “one of Mexico’s newest and most violent drug cartels.” The Mexican government had Moreno on its most- wanted list, offering 30 million pesos ($2.4 million) for information that could lead to his arrest.

Moreno was killed amid battles between security officials and gunmen that began Dec. 8 when cartel members traded fire with police in the city of Apatzingan. Gunmen then burned vehicles and blocked roads leading to the state capital of Morelia. The violence this week killed five federal policemen, three civilians and three gang members, Poire said.

“In recent days we’ve seen a criminal organization repudiated by the population and debilitated in a significant manner,” Poire said at a Mexico City news conference. “It’s the moment to intensify pressure on this organization.”

The government will increase the number of air and ground troops deployed in Michoacan, Poire said.

La Familia has operated in Michoacan since 2000, trafficking and producing drugs and committing acts of extortion, kidnapping and homicide, Poire said.

Sunday, December 12, 2010

New Report by National Institute of Justice: Crime and Victimization of Hispanic Adolescents

The National Institute of Justice has published a study that is an interesting read for those that work with Hispanic clients, especially youth in criminal justice. The report, entitled "Crime and Victimization Among Hispanic Adolescents: A Multilevel Longitudinal Study of Acculturation and Segmented Assimilation",is a study that illustrates the vast differences in the immigrant experience and how those differences affect Hispanic youth involvement in crime, both as victims and offenders. As it turns out, environment is a big factor: youth that live in inner-city poor neighborhoods tend to experience downward "cultural assimilation" and become involved in higher numbers in the criminal justice system. Here is an excerpt from the introduction. The report is free (available here):

This study represents a comprehensive effort to illustrate the divergent experiences of first-, second-, and third-generation Hispanic child and adolescent immigrants with respect to their self-reported violent victimization and involvement in criminal offending. This project is unique in that it synthesizes a vast amount of research toward the goal of understanding the complex linkages between immigration, culture, social structure, and criminological outcomes. Utilizing segmented assimilation to inform our study, we explore how neighborhood context, individual propensities, and situational factors impact crime and victimization among Latino youth. From a neighborhood perspective, segmented assimilation theory suggests that immigrant youth acculturate differentially depending on community context. Those who acculturate within disadvantaged, inner-city contexts, without strong family ties and support from other co-ethnics are likely to experience downward assimilation, resulting in more involvement in crime and other forms of deviance. We also examine how individual and situational factors impact the relationships between acculturation and crime and violent victimization. Using three well researched predictors of crime and victimization (i.e., delinquent peers, self-control, and parenting) we investigate how these influence the associations among assimilation status, acculturation context, and crime and victimization.

GSA First Federal Agency to Move to Cloud Email

The United States General Services Administration, the agency charged with running the United States Government, has announced that it will switch over to cloud-based email and collaboration tools in order to reduce inefficiencies and reduce costs. It is anticipated that the savings of switching to cloud based systems will be 50% over the next five years.

“Cloud computing has a demonstrated track record of cost savings and efficiencies,” said Casey Coleman, GSA Chief Information Officer. “With this award, GSA employees will have a modern, robust email and collaboration platform that better supports our mission and our mobile work force, and costs half as much.”

The contract provides for an easily accessible suite of services, including email and collaboration tools, to facilitate a more mobile work force. While agencies have moved sub-entities’ emails to the cloud, GSA is the first to utilize a cloud-based system for email agencywide. The migration will result in a 50 percent savings over the next five years when compared to current staff, infrastructure, and contract support costs.

“GSA’s cloud email award is in step with the Administration’s ‘cloud first’ strategy and demonstrates that agile, secure, reliable, and cost effective cloud options exist to rapidly improve agency operations and services,” said Dave McClure, GSA Associate Administrator of the Office of Citizen Services and Innovative Technologies.

GSA awarded the $6.7 million, five-year task order to Unisys Corp. under the Alliant Governmentwide Acquisition Contract. Unisys has partnered with Google, Tempus Nova, and Acumen Solutions.

Sunday, December 5, 2010

FBI Facts and Figures

The FBI has released its 2010-2011 "Facts and Figures", a downloadable PDF that includes information on a wide variety of topics including: intelligence, investigative programs, law enforcement training, working with the private sector, and ensuring accountability and compliance. It has many statistics including the make-up of agents, the budget, and a list of field offices as well as lab facilities. It is worth perusing if for no other reason than to see what the FBI has for training as well as the priority for investigation.

Saturday, December 4, 2010

Law and Technology Workshop Series: Electronic Courtroom Presentation

PHOENIX, ARIZONA - JANUARY 20-22, 2011

The Law and Technology Electronic Courtroom Presentation Workshop focuses on the use of modern technology to improve the persuasiveness of courtroom presentations. This workshop is an intensive program where participants will learn to use TrialDirector and PowerPoint products to sharpen their courtroom skills. Attendees will enhance their direct-examination, cross-examination, and opening/closing argument abilities with detailed application and use of these litigation tools. Today, many federal courtrooms are "wired" to accommodate the latest computer programs, and this technology has proven to be an effective and persuasive addition to lawyers' arsenals. Participation in the Law and Technology Workshop is particularly valuable for federal criminal defense attorneys.

General presentations and demonstrations are supplemented by concentrated small group workshops. In the smaller breakout groups, attendees receive hands-on guidance to apply the information presented in the plenary sessions using facts from a mock case file. Each participant will practice direct and cross-examination, and opening/closing arguments, using Trial Director and PowerPoint software.

In order to take full advantage of the hands-on learning opportunities provided at this program, we strongly recommend that you bring a Windows laptop (not a Macintosh). NOTE: If you solely use a Macintosh, you must have a "virtual Windows" program installed and ready for use (virtual Windows programs can run a copy of MS Windows on a Macintosh).





Friday, December 3, 2010

Journalists on Drugs - A free pamphlet about illicit pharmaceuticals that every reporter should download.

By Jack Shafer

Where do most people get their information about drugs? From the press. And where does the press get its information? Primarily from other misinformed journalists, lazy cops, grieving parents, clueless drug counselors, spurious Web sites, and gibbering druggies. By indulging their worst class biases, by following their newsman instincts to hype the sensational or dramatic aspects of the story, by giving in to fear and ignorance, journalists keep their readers in the dark about drugs.

It doesn't have to be that way. Newspapers could establish drug beats and fill them with reporters as eager to learn about Mexican tar as budding financial reporters are to understand the workings of the Fed. Press organizations that say they can't afford a drug-beat reporter could at least invest in a few reference works to help their staff cover illicit drug use. One of my favorites, Buzzed: The Straight Facts About the Most Used and Abused Drugs From Alcohol to Ecstasy, is now in its third edition. Thanks to the work of one enterprising soul, the entire text of the 1972 classic Licit and Illicit Drugs is on the Web. Although dated in spots, it's still a solid and valuable overview of the drug universe.

For news desks pleading complete poverty, the U.K. charity DrugScope has produced a free pamphlet (PDF) titled The Media Guide to Drugs: Key Facts and Figures for Journalists, which serves up 140-pages of basic, nonhysterical information about drugs and drug law. Although U.K.-centric, especially in its legal references, the pamphlet's contents are easily translatable to the American scene.

Guardian media blogger Roy Greenslade, who hypes the pamphlet today, also contributed a blurb for its cover that's worth reproducing in full. He writes:

I have despaired over the years about the hysterical and ill informed way in which the media, most especially the largest-selling popular newspapers, report on the subject of drugs. Journalists are too ready to accept myths and, by passing them on, contribute to yet further myth-making by their readers.

By reacting emotionally rather than rationally to the topic, and by denying reality, newspapers do a disservice to society.

This guide will surely help the next generation of journalists because it deals with facts that counter ignorance and prejudice. I believe it will prove invaluable.
The Media Guide to Drugs doesn't pretend to be the final authority on drugs like, say, The Physicians' Desk Reference, but as a place to launch an open-minded journalistic inquiry into drugs, their effects, and the drug laws. The pamphlet's A-Z guide to the most prevalent drugs eschews hysteria in favor of cold facts and presents accurate timelines for each drug discussed

I'm not as enthusiastic about the pamphlet's pointers on how journalists should cover drug stories as I'd like to be. In my experience, most drug journalism falters because the reporters and editors behind the stories don't ask the skeptical and probing questions they would if they were covering a business or political story. They don't question the numbers the drug warriors give them or the anecdotal accounts of users. They don't look for authoritative information in the medical literature or in academia. They don't even bother to consult Nexis, which contains brilliant articles (not just mine!) that tell the truth about drug-related death, meth-mouth, pot potency, glue sniffing, and more.

But those are quibbles. In a Q&A section, The Media Guide to Drugs smartly implores reporters to ask the essential questions when writing their stories, such as, "What happens when someone takes more than one drug at a time?" and "Why do some people respond so differently to the same drug?" and "Can you become instantly dependent on a drug?" It counsels journalists to seek drug statistics from reliable sources, but even then to be skeptical of data that are under-reported or make unsupportable claims. The sources the pamphlet points to are all British, of course, but any reporter with a Web browser can find their U.S. equivalents with the help of Google.

Those who cover the police, the courts, popular culture, or the legislative and administrative machines should keep a copy of The Media Guide to Drugs for quick reference. It presents more debunking of facts, encourages more sensible doubt, and kills more dangerous preconceptions than any sized volume. Download it. Now.

Huge Growth in People With Criminal Records creates $57-$65 Billion in Lost Output a Year


Growth of Ex-Offender Population in United States Is a Dramatic Drag on Economy

Three decades of harsh criminal justice policies have created a large population of ex-offenders that struggle in the labor market long after they have paid their debts to society, according to a new report from the Center for Economic and Policy Research (CEPR). Because prison records and felony convictions greatly lower ex-offenders' chances of finding work, the United States loses between $57 billion and $65 billion a year in lost output.

"It isn't just that we have the highest incarceration rate in the world, we have created a situation over the last 30 years where about one in eight men is an ex-offender," said John Schmitt, a Senior Economist at CEPR and a co-author of the report.

The new report, "Ex-offenders and the Labor Market," found that in 2008 there were between 5.4 million and 6.1 million ex-prisoners and between 12.3 million and 13.9 million ex-felons in the United States. Over 90 percent were men.

In 2008, about one in 33 working-age adults was an ex-prisoner, and about one in 15 working-age adults was an ex-felon. Among working-age men in that same year, about one in 17 was an ex-prisoner and one in eight was an ex-felon.

Because ex-offenders face substantial barriers to employment, the authors estimate that the large ex-offender population in 2008 lowered employment that year by the equivalent of 1.5 million to 1.7 million workers.

"The rise in the ex-offender population overwhelmingly reflects changes in the U.S. criminal Justice system, not changes in underlying criminal activity," says Schmitt. "We incarcerate an astonishing share of non-violent offenders, particularly for drug-related offenses. We have far better ways to handle these kinds of offenses, but so far common sense has not prevailed."

The report warns that in the absence of reforms to the criminal justice system, the share of ex-offenders in the working-age population will rise substantially in coming years, increasing the magnitude of employment and output losses estimated for 2008. ..Source.. by The Center for Economic and Policy Research (CEPR) was established in 1999 to promote democratic debate on the most important economic and social issues that affect people's lives. In order for citizens to effectively exercise their voices in a democracy, they should be informed about the problems and choices that they face. CEPR is committed to presenting issues in an accurate and understandable manner, so that the public is better prepared to choose among the various policy options

Thursday, December 2, 2010

Mexican Vital Records

Need birth certificates or other vital records from Mexico? If you are in a hurry and can pay (or need to do business in English), try ActaExpress. They can get birth, death, marriage and divorce records from all over Mexico. If you can conduct your search in Spanish, all states in Mexico have the same structure to their website and many have vital records contacts. For example, for the state of Jalisco, you would enter http://www.jalisco.gob.mx/index.html

Melissa Kupferberg NDIA Scholarship

Melissa Kupferberg was a nationally recognized investigator with the Tampa, Florida Federal Public Defender office when she passed away. Only 32 years old, she was a skilled investigator, capital mitigation specialist, and sentencing advocate who had a wonderful ability to relate to and work on behalf of clients. Her Master’s Degree in Social Work and considerable experience in both capital and non-capital cases gave her great expertise in understanding and addressing mental health issues. This expertise helped her to develop a rapport with all types of clients, even those with significant mental illnesses or intellectual disabilities.

First and foremost, Melissa was dedicated to her clients. She was a fierce advocate, always seeking the most persuasive way to demonstrate a client’s humanity to judge or jury, from the mentally ill death row prisoner to a defendant facing child pornography charges. Melissa worked tirelessly to ensure thorough investigation of her clients’ cases. Innocent or guilty, Melissa helped clients open up about their pasts, including painful details they would not reveal to others, so that information could be developed that might eventually persuade a judge or jury to give a lighter sentence than they would otherwise receive. Most importantly, she respected them and appreciated their humanity.

To honor Melissa, her family has created the Melissa Kupferberg NDIA Scholarship. The goal of the scholarship is to recognize those NDIA members who have followed in Melissa’s footsteps, through their client-centered approach to indigent criminal defense, by providing them with funding to attend an NDIA National Conference.

If you are interested in applying for the scholarship, please fill out the following form by clicking here.
The form may be filled out online and emailed via an email button on the form to Beverly Davidson at ndia@cox.net, or the form may be printed and submitted by mail. The address is:


Beverly Davidson, Executive Secretary
460 Smith Street, Suite K
Middletown, CT 06457

Wednesday, December 1, 2010

Investigating Attention-Motivated Fabricated Crimes


Every year there are a dozen or so incidents involving fabricated crimes that make national headlines because the motive behind the reported crime fascinates the general public. Recently a woman in Vancouver, Washington reported that she was the victim of an acid attack, where a black woman threw acid onto her face. After an extensive investigation which first focused on trying to find the perpetrator and then explored the possibility that the claim was falsified, the woman was eventually confronted and confessed to staging the attack herself. Her reported motive for doing so was because she was unhappy with her appearance.

There are a number of possible motives for making a false claim of being a crime victim. The most common is to conceal another crime such as a homicide, theft, or infidelity. However, when the "victim" receives psychological gain as a result of reporting the crime, it falls into the category of an attention-motivated crime.

The Investigation - While all reported crimes must be initially approached as legitimate, many false reports are considered suspicious at the start. Perhaps something does not make sense within the victim's account, or physical evidence does not support the description of the crime. In the previously mentioned case, for example, it was considered suspicious that there were chemical burns only on the woman's face, and none on her clothing. In addition, the woman's eyes were supposedly protected by sunglasses which were miraculously purchased shortly before the attack, even though the woman was not in the habit of wearing sunglasses.


What are possible indications of a fabricated claim?
What is the significance of crisscross scratch marks on a victim?
What are the common characteristics of individuals who fabricate a claim for attention?

Monday, November 22, 2010

2009 National Institute of Justice Report to Congress

With some remarkably honest statistical analysis, DOJ's National Institute of Justice 2009 Annual Report to Congress has a wealth of information for the criminal investigator and practitioner. With study results from Sex Offender Registration (studies show doesn't curb recidivism and researchers question cost of implementation (!)); forensic science in the U.S. (could be better); using DNA to clear the wrongly convicted (200 + freed and counting); improving reentry programs; and improving law enforcement technology. The report is worth a perusal as it gives a sense of what has been and will be funded for law enforcement as well as some helpful information that can be used in sentencing issues with information on courts and recidivism.

Viktor Bout Extradited

Viktor Bout, Extradited To U.S.: Read DEA Press Release here

After more than two years of legal proceedings, alleged international arms dealer Viktor Bout was extradited to the United States from Thailand on November 16 to stand trial on terrorism charges. Bout arrived in New York on a DEA charter plane and was brought to a high-security prison in Manhattan, where he will be held pending trial.

Bout has been accused of using a fleet of cargo airplanes to transport weapons and military equipment to various parts of the world. Specifically, between November 2007 and March 2008 Bout agreed to sell to the Colombian narco-terrorist organization Fuerzas Armadas Revolucionarias de Colombia (FARC), which is also the world’s largest supplier of cocaine, millions of dollars worth of weapons. Bout negotiated the sale to two confidential sources that were acquiring these weapons for the FARC, with the specific understanding that the weapons were to be used to attack U.S. helicopters in Colombia. These two confidential informants were in fact working with the DEA, and Bout was subsequently arrested.

Tuesday, November 16, 2010

Suffolk County Moving to Videotaped Interviews of Suspects

The best way to ensure reliability of police statements is videotaping. Now, Suffolk County Police have announced that they will begin videotaping interrogations. (Full article here).
Following a growing movement sweeping much of the nation and a high-profile case that attracted attention to the need to record suspects’ statements, Suffolk County is set to begin videotaping interrogations in homicide cases, a move many praised as a long-delayed step that could both protect the innocent and provide clearer proof of guilt.

County Executive Steve Levy and Suffolk Police Commissioner Richard Dormer said police had installed a digital system that would make good on a pledge they made several years to begin taping these interrogations.

In a joint statement, the officials said the “new system should protect detectives from accusations of misconduct and from accusations of coerced confessions or misconstrued statements.”

But police departments’ use of video also could protect suspects whose statements are made under duress, taken out of context, exaggerated or altered, which many viewed as at least as important.

Sunday, November 14, 2010

Electronic Crime Scene Investigation



The National Institute of Justice
has a number of publications that are handy for the criminal investigator. One particularly helpful publication is the guide pictured above: "Electronic Crime Scene Investigation: A Guide for First Responders." The Guide sets out guidelines that should be followed by law enforcement and other investigators to protect, recognize, collect, and preserve electronic evidence at the scene. The guide can help one review whether law enforcement followed correct protocol in gathering data from a crime scene. It also provides tips for anyone, properly trained, to collect electronic evidence without corrupting the evidence. When in doubt, always have a mirror image prepared of computers or other media to preserve its original condition when seized.

TSA Ejects Oceanside Man from Airport for Refusing Security Check


John Tyner won't be pheasant hunting in South Dakota with his father-in-law any time soon.

Tyner was simultaneously thrown out of San Diego International Airport on Saturday morning for refusing to submit to a security check and threatened with a civil suit and $10,000 fine if he left.

And he got the whole thing on his cell phone. Well, the audio at least.

The 31-year-old Oceanside software programmer was supposed to leave from Lindbergh Field on Saturday morning and until a TSA agent directed him toward one of the recently installed full-body scanners, Tyner seemed to be on his way.

Tyner balked.

He'd been reading about the scanners and didn't like them for a number of reasons, ranging from health concerns to "a huge invasion of privacy." He'd even checked the TSA website which indicated that San Diego did not have the machines, he said in a phone interview Saturday night.

"I was surprised to see them," said Tyner.

He also did something that may seem odd to some, manipulative to others but fortuitous to plenty of others for whom Tyner is becoming something of a folk hero: Tyner turned on his cell phone's video camera and placed it atop the luggage he sent through the x-ray machine.

He may not be the first traveler tossed from an airport for security reasons but he could well be the first to have the whole experience captured on his cell phone.

During the next half-hour, his cell phone recorded Tyner refusing to submit to a full body scan, opting for the traditional metal scanner and a basic "pat down" -- and then refusing to submit to a "groin check" by a TSA security guard.

He even told the guard, "You touch my junk and I'm going to have you arrested."

That threat triggered a code red of sorts as TSA agents, supervisors and eventually the local police gravitated to the spot where the reluctant traveler stood in his stocking feet, his cell phone sitting in the nearby bin (which he wasn't allowed to touch) picking up the audio.

According to TSA when the controversial body scanners were installed, travelers would have the option to request walking through the traditional metal detector it would be accompanied by a "pat down."

Why Tyner was targeted for a secondary pat down is unknown.

"I'm 6-foot-1, white with short brown hair," he said Saturday night. "I don't look like a terrorist."

Was he singled out for "punishment"?

Before Tyner was told he was getting a "groin check," a TSA agent is heard on the recording telling another agent "I had a problem with the passenger I was patting down. So I backed down. He was obnoxious."

Tyner is sure he was talking about someone else. On the whole, with a single final exception, he found the agents "professional if standoffish."

He did marvel that while his own situation was being deliberated, many passengers passed through the metal detector and on to their flights with no pat-down. "One guy even set off the alarm and they sent him through again without a pat-down," he said.

Once he threatened to have the TSA agent arrested though, events turned surreal.

A supervisor is heared re-explaining the groin check process to Tyner then adding "If you're not comfortable with that we can escort you back out and you don't have to fly today."

Tyner responded "OK, I don't understand how a sexual assault can be made a condition of my flying."

"This is not considered a sexual assault," replied the supervisor, calmly.

"It would be if you were not the government," said Tyner.

"By buying your ticket you gave up a lot of rights," countered the TSA supervisor.

"I think the government took them away after 9/11,' said Tyner.

"OK," came the reply.

More senior TSA administrators showed up, and one San Diego police officer. Tyner's personal information was taken down and then he was escorted out of the security area. After he put his shoes back.

His father-in-law, a 40 year retired deputy sheriff can be heard pleading in the back ground for some common sense.

Tyner went over to the American Airlines counter where an agent, to his amazement, refunded the price of his non-refundable ticket.

Before he could leave however he was again surrounded by TSA employees who told him he couldn't leave the security area. One, who kept insisting he was trying to help Tyner, told him that if he left he would be subject to a civil suit and a $10,000 fine.

Tyner asked if the agents who escorted him from the security area would also be sued and fined.

The same man who told Tyner he would be sued and fined if he left, also insisted that he did not tell him he couldn't leave.

So Tyner left.

Two hours later he wrote the whole experience up on his blog and posted the audio files to YouTube.

You could say it has gone viral.

By Saturday evening, 70,000 people had accessed the entry and 488 comments were posted to the blog item. Those comments are divided over Tyner's experience. "Only 5 percent say I'm an idiot," he said.

Far more applaud him for "standing up" to the security forces. Many more people share his disdain for how airport security is conducted.

"People generally are angry about what is going on," said Tyner, "but they don't know how to assert their rights....there is a general feeling that TSA is ineffective, out of control, over-reaching."

If Tyner has touched some undercurrent of resentment, he doesn't want to be the guy who leads the charge to overturn the machines. "I'm not so sure I'm the right person to start a movement," he said.

If he isn't, he can sound like he's auditioning for the job.

Tyner points out that every terrorist act on an airplane has been halted by passengers. "It's time to stop treating passengers like criminals and start treating them as assets," he said.




Blog post by John Tyner can be found here.

Saturday, November 13, 2010

How to Check Your Cell Phone for Bugs

British information security experts MWR InfoSecurity uncovered a flaw in the Palm Pre which allows for the bugging of conversations "anywhere in the world" while a general flaw in Android allows for the nicking of user passwords through the internet connection. Full article here.

Worried your cell phone might be bugged? Here is a step by step guide on how to debug it. A few simple tips to avoid cell phone bugging: don't allow people to use your phone, bugging apps can be downloaded in seconds, and don't allow leave your phone unattended-the SIM card can be switched out in seconds with a card that will allow listening in.

Sunday, November 7, 2010

The Stockdale Paradox


Some of the best lessons I’ve learned about personal development come from a book that isn’t aimed at the personal development market at all. It’s a book about business and leadership, called Good to Great. Author Jim Collins and his research team spent five years trying to identify the common factors that separated good (or briefly great) companies, from companies which were able to achieve and then sustain excellence for fifteen consecutive years or more. While reading, I realized that almost all the findings in the book could be applied on a personal level as well.
While I would highly recommend that you get your hands on this book and read it in its entirety, today I’d like to share a part of it that has stuck with me most: The Stockdale Paradox.

The Stockdale Paradox is named after admiral Jim Stockdale, who was a United States military officer help captive for eight years during the Vietnam War. Stockdale was tortured more than twenty times by his captors, and never had much reason to believe he would survive the prison camp and someday get to see his wife again. And yet, as Stockdale told Collins, he never lost faith during his ordeal: “I never doubted not only that I would get out, but also that I would prevail in the end and turn the experience into the defining event of my life, which, in retrospect, I would not trade.”

Then comes the paradox: While Stockdale had remarkable faith in the unknowable, he noted that it was always the most optimistic of his prisonmates who failed to make it out of there alive. “They were the ones who said, ‘We’re going to be out by Christmas.’ And Christmas would come, and Christmas would go. Then they’d say, ‘We’re going to be out by Easter.’ And Easter would come, and Easter would go. And then Thanksgiving, and then it would be Christmas again. And they died of a broken heart.”

What the optimists failed to do was confront the reality of their situation. They preferred the ostrich approach, sticking their heads in the sand and hoping for the difficulties to go away. That self-delusion might have made it easier on them in the short-term, but when they were eventually forced to face reality, it had become too much and they couldn’t handle it.

Stockdale approached adversity with a very different mindset. He accepted the reality of his situation. He knew he was in hell, but, rather than bury his head in the sand, he stepped up and did everything he could to lift the morale and prolong the lives of his fellow prisoners. He created a tapping code so they could communicate with each other. He developed a milestone system that helped them deal with torture. And he sent intelligence information to his wife, hidden in the seemingly innocent letters he wrote.

Collins and his team observed a similar mindset in the good-to-great companies. They labeled it the Stockdale Paradox and described it like so:

You must retain faith that you will prevail in the end, regardless of the difficulties.

AND at the same time…

You must confront the most brutal facts of your current reality, whatever they might be.
For me, the Stockdale Paradox carries an important lesson in personal development, a lesson in faith and honesty: Never doubt that you can achieve your goals, no matter how lofty they may be and no matter how many critics and naysayers you may have. But at the same time, always take honest stock of your current situation. Don’t lie to yourself for fear of short-term embarrassment or discomfort, because such deception will only come back to defeat you in the end.

Living the first half of this paradox is relatively easy, since optimism really isn’t that hard. You just choose to believe that it will all turn out for the best, and everything that happens to you is a means to that end. Simple as.

But optimism on its own can be a dangerous thing:

There’s no difference between a pessimist who says, “Oh, it’s hopeless, so don’t bother doing anything,” and an optimist who says, “Don’t bother doing anything, it’s going to turn out fine anyway.” Either way, nothing happens. – Yvon Chouinard
So you need to embrace the second half of the Stockdale Paradox to really make strides. You must combine that optimism with brutal honesty and a willingness to take action.

Now of course, nobody likes admitting that they’re fat, that they’re broke, that they’ve chosen the wrong career or that their marriage is falling apart. But admitting such truths is an absolute necessity if you want to grow and improve. It might feel like you’re taking a few steps backward by doing so, but you can view that retreat as the pull-back on a sling shot: you’re just setting yourself up to make significant progress down the road.

Tuesday, November 2, 2010

Tarrant 'Bad-Juror List' can be Kept Private, Texas Attorney General Says

By Gene Trainor

The Tarrant County district attorney's office can keep its "bad-juror list" private, the Texas attorney general's office has decided.

Assistant Attorney General James Morris agreed with the district attorney's office that the document should be exempt from disclosure because it contains prosecutors' subjective impressions and is used in preparation for trials.

Morris cited a 1983 state open-records decision that "disclosure of prosecutors' subjective comments about former jurors would tend to indicate state's possible strategy in future prosecutions and in doing so would compromise state's effectiveness in prosecuting criminal matters."

But Fort Worth criminal defense attorney William Ray, who had requested the list, says that keeping it private "flies in the face of open government" and gives prosecutors an advantage.

Prosecutors and defense attorneys usually select a jury after voir dire, when they question potential jurors. Both sides can reject people who they believe could hurt their case. But some Tarrant County prosecutors keep a "bad-juror list" of people who had previously served on juries. The list includes why they should not serve again.

The debate centers on the public's right to know versus what constitutes "work product," often defined as the mental or subjective impression or opinions of an attorney or his investigator. Typically, work product is not subject to public review.

Tarrant County Assistant District Attorney Ashley Fourt, who asked for the attorney general decision, said that Ray was asking for work product.

"I think the A.G. made the right decision," she said.

Ray said he asked for the list with prosecutors' comments and the list without prosecutors' comments. He said that Morris answered the first question, about the list with prosecutors' comments, but not the second, for the names alone. He said he sent a letter to the state asking that the second question be answered.

Thomas Kelley, press secretary for Attorney General Greg Abbott, said that the ruling, made in September, covers both questions.

Fourt outlined how the list gets created after she sent a letter to the state, dated June 30, asking that the list be kept private. After a criminal jury trial ends, prosecutors or their staff insert information about a "bad juror" into a word document, she wrote.

"When a jury panel is assembled for a pending criminal case, prosecutors will use this list to aid in jury selection," Fourt wrote.

Last year, Ray forced Tarrant County prosecutors to release a more general list of jurors and their verdict histories after filing a request that went to the attorney general. Fourt also fought last year's release.

Assistant Attorney General Leah Wingerson wrote that the more general list must be disclosed partly because Fourt did not explain "how or why releasing the juror history information would interfere with the detection, investigation, or prosecution of crime."

That list is available for purchase from the district attorney's office.

Monday, November 1, 2010

Racial Discrimination in Jury Selection Remains Widespread, According to New EJI Study.

Nearly 135 years after Congress passed the Civil Rights Act of 1875 to eliminate racial discrimination in jury selection, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases. EJI on June 1, 2010, released a new report, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” which is the most comprehensive study of racial bias in jury selection since the United States Supreme Court tried to limit the practice in Batson v. Kentuckyin 1986...

To read more of this summary of the report, click here.

To read the actual report, click here.

To watch the videos "Illegal Racial Discrimination in Jury Selection: A Continuing Legacy" or "Illegal Racial Discrimination in Jury Selection: The Earl McGahee Case", click on the Youtube videos below:



Former Death Row Inmate Freed In Texas

Anthony Graves is free today after being wrongfully convicted of the murder of six people in Burleson County, Texas. The district attorney's office there dropped all capital murder charges against him on Thursday. NPR's Melissa Block talks to Pamela Colloff, senior editor of Texas Monthly, who wrote an exhaustive piece about the case.

Listen to the story at NPR.


DA Stands by Criticism Levied Against Public Defenders


District Attorney Martin Beeson said Wednesday that he stands by recent comments he made criticizing public defenders, as lawyers throughout Colorado condemned his statements.

Last week, after a meeting with the Pitkin County commissioners regarding his office’s 2011 budget, Beeson criticized the local defenders for some overzealous courtroom tactics and told the Aspen Daily News, “Public defenders are not defenders of the public. They are not serving the public good. They are taxpayer-funded attorneys for criminals.”

On Wednesday he said, “I stand by my statement. The so-called public defenders do not defend the public. The law enforcement defends the public. The prosecutors defend the public.”

He specifically referenced a Rifle police officer who was shot in the line of duty last week as an example of a public servant who defends the public. Public defenders, he said, “are government-funded defense attorneys and should be called just that, government-funded defense attorneys.”

His original comments came in response to a question about the state public defender’s funding, and appeared in an Oct. 22 article about the four-attorney Glenwood Springs public defender’s budget.

Since then, the comment has elicited some outraged responses from attorneys, including the head of the Colorado public defender’s office, the president of the Colorado Criminal Defense Bar and the Pitkin County attorney.

“The men and women that work for the [state public defender] work for the poor with little financial reward because they believe in the protections set forth in the Constitution by our founding fathers,” Colorado State Public Defender Douglas K. Wilson said via e-mail. “It is sad, and scary, that Mr. Beeson does not believe in the same principles.”

Beeson also had criticized local public defenders for excessively attempting to suppress incriminating evidence.

“It should be concerning to all, including other prosecutors, to hear a well-funded prosecutor indicate that providing effective representation to an accused makes his job too difficult,” Wilson said. “Our criminal justice system is based on the presumption of innocence and proof beyond a reasonable doubt. It appears Mr. Beeson does not believe in either. If that is the attitude of all elected district attorneys, then everyone’s liberty is at risk.”

Shawna Geiger, president of the Colorado Criminal Defense Bar, called on Beeson to publicly retract his statements and said the comments “show a shocking disregard for the United States and Colorado Constitutions,” which guarantee an adequate criminal defense for the indigent.

“As a lawyer who has been charged with the defense of our state and federal Constitutions, Mr. Beeson should know how valuable a service the Colorado State Public Defender provides to our community,” Geiger wrote in a letter to the editor (see page 8). “He should disavow his statements and apologize.”

Beeson said Wednesday he won’t be doing that.

“As far as an apology, they will be waiting a long time,” he said. “If they correct the abuses their attorneys engage in, I will say ‘thank you.’”

Private defense attorney Tom Silverman has called for Beeson to resign.

Silverman is a former Vail prosecutor, Silt judge and one-time president of the Colorado Municipal Judge’s Association, who currently runs a private practice out of Glenwood Springs.

“The statement attributed to him is spectacularly ignorant and reflects an attitude toward the criminal justice system unworthy of a first-year law student, let alone a district attorney,” Silverman said of Beeson. “The DA is sworn to uphold the Constitution, not attack it. Apologize or resign.”

Tina Fang, who runs the Glenwood public defender’s office, which covers the same three-county district Beeson’s office does, said his characterization of their work, “demonstrates why, now more than ever, the public defender’s office must heed its mission to ensure that indigent people accused of crimes in this valley are provided the highest and most zealous level of representation money can’t buy.”

Pitkin County Attorney John Ely expressed dismay at Beeson’s comments on public defenders, and disappointment in the DA declining to cut 5 percent of his 2011 budget, which the county had requested from all of its departments.

“I didn’t think anybody thought that way anymore,” he said Tuesday.

The liberal Denver-based crime and politics blog at www.talkleft.com on Friday deemed Beeson’s criticisms their “Worst Prosecutor Comment of the Week.”

Beeson said Wednesday that, “Most private defense attorneys in this district are men and women of integrity.” But he criticized some lawyers for meritlessly accusing him and his office of prosecutorial misconduct, attacking victims of crimes at trial, and frustrating the DA’s efforts with superfluous motions to suppress evidence.

“These stock motions are filed without a thought,” he said. “They have no merit and it’s their standard operating procedure.”

He specifically referenced two specific cases as displaying patterns of abuse by the Glenwood-based public defender’s office.

In the first, public defenders Fang and Steve McCrohan, Beeson said, cruelly portrayed the victim of a violent rape in Aspen as someone who may have traded sex for cocaine. He said one juror told his office he was led to believe the victim was a “coke whore.” After the jury came back hung earlier this year, the alleged assailant and his defenders accepted a deal in which he pleaded guilty to attempted sexual assault.

In the second, Fang and public defender Jim Conway rejected a plea offer Beeson made to a Rifle man accused of murdering his brother and then went through 15 months of pre-trial motions hearings, only to accept the guilty plea deal two days before the man’s trial was to begin last month.

Drawing out cases like those needlessly wastes untold amounts of taxpayer money through the cost of paying prosecutors, public defenders, judges, sheriff’s deputies and courthouse utilities, he said.

“Our charge is to pursue justice,” Beeson said. “They have just one goal in mind ... It is not in pursuit of justice or truth, it is in pursuit of a ‘W.’”

Asked if his complaints were with public defenders in general or with the aggressive techniques of Fang’s current team, Beeson said, “I’m not going to say if it is worse or better. I will say I had no problem with these behaviors from the government attorney’s office under [Fang’s predecessor] Greg Greer.

“This is more than just unprofessional in my belief,” he added.

Record Raids for DEA

Friday, October 29, 2010

Investigator's Guide to Allegations of Ritual Child Abuse

The following essay and its hyper-links describe a guide written by K.V. Lanning on ritual child abuse. It is perhaps the most important and influential document ever written on the topic. Its wisdom has held up well, even though there have been enormous developments in the subject since the essay was written in 1992.

Kenneth V. Lanning is a Supervisory Special Agent at the Behavioral Science Unit at the National Center for the Analysis of Violent Crime. The Center is located at the FBI Academy in Quantico, VA. It assists police forces throughout the US. The group is often called in as consultants by local and state police forces.

Lanning began working in the field in 1981. Allegations of ritual abuse began to surface circa 1983. At first, he tended to believe that the abuse really occurred. He reported:

But the number of alleged cases began to grow and grow. We now have hundreds of victims alleging that thousands of offenders are abusing and even murdering tens of thousands of people as part of organized satanic cults, and there is little or no corroborative evidence. The very reason many "experts" cite for believing these allegations (i.e. many victims, who never met each other, reporting the same events), is the primary reason I began to question at least some aspects of these allegations.
Lanning defines a satanic murder as "one committed by two or more individuals who rationally plan the crime and whose primary motivation is to fulfill a prescribed satanic ritual calling for the murder." Using this definition he has been unable to identify even one documented satanic murder in the United States.

Guide can be found here.

Tuesday, October 26, 2010

Presentence Report: What You Don't Know Might Hurt You

An interesting article that came out this past Sunday in the Roanoke Times about a little known, yet widely practiced, part of federal sentencing: a written recommendation from United States Probation Officer that is given to the Judge in addition to the Presentence Report. Federal Rule of Criminal Procedure 32 requires a presentence report for offenses. The report includes a summary of the offense, a summary of the sentencing guidelines, and discusses all aspects of the offender's life including work history, substance abuse issues, mental and physical health problems, and includes calculations of possible sentencing outcomes. Much investigation and preparation goes into both getting information for the report as well as getting information to challenge legal inaccuracies, factual disputes, or other challenges to the report. Often times, issues identified in the presentence report are contested at the sentencing hearing in open court.

The Roanoke Times article report on the questions raised by the process, in addition to the presentence report, of the probation officer's "recommendation" which can be a written recommendation or an off the record conversation that takes place between the Judge and the Probation Officer.

In Roanoke, after the sentencing hearing, the offender received a copy of the presentence report in the mail which included the mistakenly mailed confidential recommendation from the probation officer. The defense attorney and the offender both thought the report contained inaccuracies and painted an unfairly unflattering picture of the person. Here is an excerpt of the article (full article here):

No one who tracks how each of the nation's federal districts deals with the rule about sentencing recommendations, according to the national office of the federal defenders service and two longtime U.S. judges in Roanoke. Most districts keep the recommendations secret, between the judge and probation officer, said Karen Edmonds, a Washington-based spokeswoman for the administrative office of the U.S. Courts.

"There is no justification for a lack of transparency in this critical aspect of the adversary process," University of Arizona law professor Marc Miller wrote in an e-mail response to questions.

Miller, editor emeritus of the academic journal Federal Sentencing Reporter, is among scholars and lawyers who for years have called for the U.S. Sentencing Commission and Congress to change the federal rule. Unless defense attorneys and prosecutors have a chance to challenge a probation officer's recommendation, a judge could impose a sentence based on wrong information, Miller said.

Paul Dull, a Roanoke defense lawyer not involved in Wooten's case, said basic fairness is at stake.

"We all have clients who for one reason or another" irritate a probation officer, said Dull, who has years of federal courtroom experience. "And there's no way for us to know if the probation officer said to the judge, confidentially, 'Hey, this guy. ... He was uncooperative.' "

The suggestion of such a scenario set off a stir in Roanoke's federal justice system over the summer.

Cargill , a federal defender since the Western Virginia office opened in 2006, represented former restaurateur Wooten, who was sentenced in July to 33 months in prison. A month later, Wooten, who had already reviewed his pre-sentence report with Cargill, received a routine copy in the mail.

Also in the envelope was the probation officer's confidential sentencing recommendation, accidentally mailed from the probation office.

Wooten and Cargill thought the probation officer's recommendation painted Wooten in a worse light than he deserved.

On Aug. 11, Cargill fired off a letter to the head of the probation office, the U.S. attorney's office and the judicial district's chief judge. He called for a review of sentencing recommendations "to be sure they do not contain facts that are not in the presentence report" and slammed the events that he said left his client unable to respond to inaccurate statements.

Such open criticism of court workings is unusual for lawyers.

Sunday, October 24, 2010

Fourth National Seminar on Mental Health and the Criminal Law

January 13-16, 2011
Royal Sonesta Hotel
New Orleans, LA

Program Contact: Chastain Smith Chastain_Smith@ao.uscourts.gov
Registration Contact: LaShawn Parker LaShawn_Parker@ao.uscourts.gov

PROGRAM DESCRIPTION

Our understanding of the etiology of a variety of mental impairments is rapidly evolving. We have learned much in recent years, for example, about the neurobiology of many mental disorders. Additionally, the Supreme Court’s decision in Atkins v. Virginia, has resulted in a richer and more contextual understanding of intellectual disability. There have also been a number of new insights into how jurors and judges "process" evidence regarding mental impairments. Finally, there have significant legal changes which impact the presentation of mental state evidence at all phases of a criminal trial.

But, new knowledge can be effectively utilized on behalf of indigent criminal defendants only if advocates are aware of and conversant with these trends and developments.

This seminar will address many of these new developments including the neurobiology of schizophrenia and other serious mental illness; the effects of trauma on brain functioning, cultural issues in mental health assessments and a number of other cutting edge topics. Additionally, there be a significant emphasis on the investigation, development and presentation of evidence of intellectual disability in capital cases including sessions on intellectual functioning and intelligence tests, assessing adaptive deficits, proof of age of onset, stereotypes of intellectual disability as well as sessions on strategies for Atkins hearings and trials.

Finding and Researching Experts and Their Testimony

Several years ago, an Arizona trial court judge overturned a jury’s verdict, ordered a new trial and sanctioned the defendant over half a million dollars because the defense expert had lied about his qualifications. Importantly, the judge based his decision to sanction on his expectation that the defendant would have conducted thorough research on the experts:

This court opined that defendant ... knew or should have known of the falsity of its own expert’s credentials,
but could not conclude that [defendant] in fact knew. This court has been persuaded by plaintiffs’ motion for reconsideration that “should have known” warrants sanctions.
Expert witnesses are used in a wide range of litigation and their opinions are often viewed as critical—frequently they can make or break a case. As a result, many trials have turned into a battle of the experts. Yet despite their importance, few attorneys take the time to utilize the proper resources to find the right experts, evaluate their credentials, and/or assess the admissibility of their testimony.

The purpose of this article is to suggest various online resources that can be used to find experts, gather information about them (whether your own or the opposing party’s) and assess the admissibility of their testimony—as well as tips on how the information uncovered might be utilized. In addition, to assist in research efforts, some potentially relevant websites have been included. However, note that because many of the resources noted (e.g., agency opinions, verdict reports, etc.) are available from commercial vendors, such as LexisNexis® (see, e.g., LexisNexis Total Litigator, a task-based research platform that includes an entire subpage devoted solely to researching experts2), such full-service providers are not repeatedly listed as possible sources of information.3

One final note of caution: be wary of outrageous marketing claims. Some vendors will tout that they can provide you all of the information you need to identify, select or impeach an expert. Nothing could be further from the truth. In fact, some products marketed through such claims actually miss relevant, and relatively easy-to-find, information about many experts—providing you with far less than what is promised. The simple upshot is that, although there are several fairly comprehensive products, platforms and services, we have yet to find one that does it all. So when evaluating resources, adhere to the well-known maxim: “if something sounds too good to be true, it probably is.”

Article can be found here.

Wednesday, October 20, 2010

Too Many Teeth?

Police Guild’s Unfair Labor Practice complaint slams city for giving ombudsman independent investigatory and reporting powers.

The Spokane Police Guild’s filing with the state’s Public Employment Relations Commission (PERC) alleges that the new powers of independence added to the city’s two year old Office of Police Ombudsman violate state labor law. A copy of the filing was obtained earlier today.

The August 20th complaint filed with the PERC specifically accuses the city of interfering with guild members’ collective bargaining rights and for refusing to engage in collective bargaining on a subject the Guild asserts is a mandatory matter of collective bargaining.

But this is where the three page complaint gets interesting because the subject matter that the Guild believes the recently adopted ordinance infringes upon is officer discipline–a function that under the literal terms of the offending ordinance is directly precluded with the following language: “The OPO [Office of Police Ombudsman] shall not have a role in any disciplinary matter.”

Apparently, the Guild believes the new powers given the office to initiate investigations independent of the police department, and issue reports on specific complaints independent of the police department, among to giving the office a role in officer discipline.

Indeed, there is much in the Guild’s complaint that drafters of the new ordinance and the citizen organizations who supported it, accept as true, including:

“Disciplinary procedures are a mandatory subject of bargaining,” and that: “Disciplinary procedures impact mandatory subjects of bargaining.”

But the allegations encompass, as a settled fact, that giving the OPO powers beyond the mere certification of internal police department investigations, goes over the line into officer discipline.

“The City made a unilateral change in its disciplinary procedures,” the complaint alleges, “by expanding the powers of the OPO and changing the requirements to which the OPO was subject, without providing the Guild an opportunity to bargain the change or the effects of the change, which constitutes a refusal to bargain with the Guild in violation of [state law.]”

In its complaint, the Guild asserts that “on or about June 14, 2010″–two weeks before the new ordinance was adopted–”the Guild demanded to bargain the changes in the ordinance that constituted mandatory subjects of bargaining and that impacted (sic) mandatory subjects of bargaining.”

In retrospect, though, the ordinance as it existed on June 14th was quite a bit weaker in terms of the OPO’s investigative powers, than the version of the ordinance that was adopted two weeks later. But, still, there were at least three clear clauses in the new ordinance that make clear that the chief, not the OPO, is solely in charge of discipline.

In many respects, the litany of the offending changes cited by the Guild could be taken from the literature of those who advocated for those changes, in that they reveal just how dominated the original ordinance was with language that rendered the OPO a mere bystander to the police department’s internal affairs (IA)investigations.

For example, the complaint charges: The [June 28th] ordinance permits the OPO to conduct an independent investigation if the OPO “is not satisfied with the decision of the mayor” [to accept an IA investigation as adequate]. Previously, the decision of the mayor was final and the OPO did not have authority to conduct an independent investigation.”

Although the complaint asserts that the OPO now has a role in officer discipline, it does not describe what that role is. Proponents of the new ordinance, including the Center for Justice, maintain that the independent reporting powers the office now has are duties that can be assigned to the office within the city’s managerial discretion, and because the OPO is directly precluded from being involved in officer discipline, there has been no infringement upon the collective bargaining agreement and/or state rules.

–CFJ