The Curbside Investigator: Vidcast episode #5

Discovery and Despair

Hyperbole and a Half captures the way the brain feels after a long day dealing with (sometimes) steamroller of government. Using I2 the clever analyst can make a cartel out of any cell phone data. Fun(!)

In January, 2010, Attorney General Eric Holder released the Memos to United States Attorneys: Establishing Guidance for Prosecutors Regarding Criminal Discovery. Recently in the Ninth Circuit in United States v. Stever Stever sought to present a defense on the ground that the marijuana growing operation found on an isolated corner of his mother’s 400-acre property was the work of one of the Mexican drug trafficking organizations . . . that had recently infiltrated Oregon. He was prevented from doing so by two district court rulings, the first denying him discovery related to the operations of DTOs and the second declaring that defense off-limits. The Ninth Circuit considered whether these rulings violated Rule 16 of the Federal Rules of Criminal Procedure, Stever’s rights under Brady v. Maryland, . . . and Stever’s Sixth Amendment right to make a defense.” Id. at *1. The Court held that the discovery violations presented Stever from investigating, and thereby precluding a whole line of defense.
This is an issue of policy given that there is talk to amend Rule 16's Discovery Obligation. The Judicial Conference Advisory Committee on the Rules of Criminal Procedure, chaired by Judge Tallman of the Ninth Circuit, is debating a change to Rule 16, which governs discovery. Thus far DOJ as rejected the amendment. Discovery is important to a sense of fair justice. It is a good time to be arguing the government's discovery obligations aggressively and putting together defense investigation that covers the data analysis.

TD Ameritrade Subpoena Compliance

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It’s About Time - Aging Prisoners, Increasing Costs,

As harsher policies have led to longer prison sentences, often with a limited possibility of parole, correctional facilities throughout the United States are home to a growing number of elderly adults. Because this population has extensive and costly medical needs, states are confronting the complex, expensive repercussions of their sentencing practices. To reduce the costs of caring for aging inmates—or to avert future costs—legislators and policymakers have been increasingly willing to consider early release for those older prisoners who are seen as posing a relatively low risk to public safety.

This report is based upon a statutory review of geriatric release provisions, including some medical release practices that specifically refer to elderly inmates. The review was supplemented by interviews and examination of data in publicly available documents.

At the end of 2009, 15 states and the District of Columbia had provisions for geriatric release. However, the jurisdictions are rarely using these provisions. Four factors help explain the difference between the stated intent and the actual impact of geriatric release laws: political considerations and public opinion; narrow eligibility criteria; procedures that discourage inmates from applying for release; and complicated and lengthy referral and review processes.

This report offers recommendations for responding to the disparities between geriatric release policies and practice, including the following:

States that look to geriatric release as a cost-saving measure must examine how they put policy into practice. For instance, they should review the release process to address potential and existing obstacles.

More analysis is needed to accurately estimate overall cost savings to taxpayers—and not just costs shifted from departments of corrections to other agencies.

More effective monitoring, reporting, and evaluation mechanisms can improve assessments of the policies’ impact.

Creative strategies allowing older individuals to complete their sentences in the community should be piloted and evaluated.

Finally, to protect public safety, states should consider developing relevant risk- and needs-assessment instruments, as well as reentry programs and supervision plans, for elderly people who are released from prison.

Great New Resource from Arrest to Reintigration

The Bronx Defenders, an organization that exemplifies all that is good and right in public defense, drew our attention to a wonderful resource: Reentry.Net. The Bronx Defenders is one of the sponsors of reentry.net, the first ever clearinghouse of materials for attorneys, social service providers, and policy reform advocates on reentry and the consequences of criminal proceedings. The National Library contains various research, national policy, and program information. Reentry.net/NY, the New York-specific Resource Center, contains hundreds of resources including training materials, sample letters, and case decisions in addition to a calendar of relevant events. There are over 2000 members comprised of criminal defense and civil legal aid attorneys, service providers and advocates who have found it to be an extremely valuable resource in their efforts to aid clients with reentry concerns. The NY component is more filled out, and both are valuable information resources. As information grows, it becomes more important to get these resources organized so they are more user friendly. Reentry.net connects the various pieces into a more complete map for client reentry resources. It is added as a permalink here.

Defense Initiated Victim's Outreach

A growing trend, especially in death penalty work, is the Defense Initiated Victim's Outreach or DIVO for short. DIVO has been around for quite a while, but the idea translates to more than just capital cases. In a capital case, it is essential for the defense team to understand the victims' concerns and questions. The information can be useful working on settlement as well as working out mitigation evidence. Traditionally, victims end up "belonging" to the prosecutor and the victim-advocate that is an employee of the prosecutor's office. The DIVO can turn that around by providing the defense team with access and information to the victim to provide a more holistic approach to justice. The DIVO creates an organic relationship between the victims/survivors and the defendant. The defense team is then in a position to deal compassionately with the victims and learn from the victims as well. NACDL has a good overview of DIVO, its creation in the McVeigh case with Richard Burr and Tammy Krause, and resources for a defense team regarding DIVO (available here).

The DIVO works with both the defense and the victim-survivors to bridge the parties and seeks to reduce the trauma to victim-survivors that often results from the adversarial and technical nature of the legal process. The DIVO assists the defense team to access the victim and provide a more active role for homicide victim-survivors without compromising the due process rights of capital defendants. Trained victim outreach specialists help defense attorneys understand the needs and experiences of victim-survivors; conversely, the DIVO can help the victim understand the defendant, the legal process and the crime better.

This idea has primarily been used in capital cases, but can be important in any case where the defense finds themselves wanting to understand and communicate with victims. For a good overview of DIVO, see Understanding "Defense-Initiated Victim Outreach and Why It Is Essential In Defending a Capital Client" authored by Mickell Branham and Richard Burr. For training on DIVO work, see Capital Defense Network and their associated trainings.

Database 101: Information Overload

Feeling like you are trying to climb the information Mt. Everest? You need the tools to cope: a good database might be the way. There are many different ways to build a database on almost any subject. Many databases are used for marketing research but databases can be useful for organizing information. Blogs and websites collect information, but in the information overload, it helps to have a centralized resource. E-How suggests a six step process that begins (appropriately) with step one: map out your site and think about the information your online database will gather. You need to know what type of data you will be presenting to your visitors. Read more

For software, consider Filemaker, Microsoft Access or Zoho. For starters, here is the University of Houston's Criminal Justice Database. More to come.

Cyber War

From 60 Minutes:

Could foreign hackers get into the computer systems that run crucial elements of the world's infrastructure, such as the power grids, water works or even a nation's military arsenal, to create havoc? They already have. Steve Kroft reports.


Watch CBS News Videos Online

Problem Solving Courts: Resources and Information

In 2007, the National Association of Criminal Defense Lawyers to examine the operations of courts such as drug and mental health courts. NACDL’s Task Force on Problem Solving Court was charged with conducting a thorough analysis of these courts, specifically focusing upon the ethical implications for the defense bar and the constitutional implications for society at large. The Task Force conducted hearings throughout the country in San Francisco, Miami, Tucson, New York, Milwaukee, Austin and the District of Columbia. The project's result was a comprehensive report and recommendations that for the first time provide the perspective of the nation’s criminal defense bar regarding problem courts.

The NACDL website has compiled much information related to Problem Solving Courts including reports, mission statement, hearing schedules, witness list and other information related to the task force hearings. Additional information is available that is useful in evaluating these growing approaches to the criminal justice.

A Celebration of Freedom & Justice -- May 18, 2010 -- The Exonerated

Support Holistic Defense Bronx Style

The Bronx Defenders are a leader in holistic public defense work that are supported by grants and donations. This groundbreaking approach is on the tipping point...it is a sustainable defense model to improve our justice system as blogged about here and here. You can help with the Summer Hundred Campaign by donating $100, or whatever you can, to the cause. If you happen to be in the Bronx in July, you can enjoy the cocktail party: a pledge enters you into a raffle. The Bronx Defenders are redefining criminal defense by starting with the principle that an arrest is not just an arrest, it can create a whole host of legal and social problems:

The Bronx Defenders employs a groundbreaking system of holistic defense to fight both the causes and consequences of involvement in the criminal justice system. Located in the heart of the South Bronx, our office has been engaged in a constant dialogue with the community we serve. What we have learned from that dialogue is that our client population has a host of legal and social support needs. As holistic defenders we are committed to providing our clients with seamless access to services to meet those needs. Our interdisciplinary teams of criminal, civil, and family defense lawyers, social workers, parent advocates, investigators, and community organizers work with clients and their families to identify and overcome the challenges they face. Whether addressing the root causes of their involvement in the criminal justice system such as addiction, mental illness, and joblessness or the collateral consequences of their criminal case, our goal is not just to succeed in court but to make a long-term difference in our clients’ lives.

Because at The Bronx Defenders, we know an arrest is never just an arrest.

Iowa Division of Criminal Investigation - Special Agent Position

The Iowa Department of Public Safety is preparing to host its 35th Basic Academy beginning in November 2010. At this time the Department plans to hire qualified applicants to fill the following positions:

Special Agent I (Division of Criminal Investigation - Gaming)
Trooper I (Iowa State Patrol)
Fire Inspector (State Fire Marshal Division).

Test registration forms are currently being accepted through June 25, 2010. Click here to review the minimum hiring qualifications and complete the registration form.

Green Tea Party

The results of an interesting poll were published this week in the LA Times, as reported by Sentencing Law and Policy, regarding the narrow margin of voters that approve of an initiative that would allow citizens to grow and consume marijuana. The poll's findings indicated more than 1 in 3 voters had tried pot and more than 1 in 10 had lit up in the past year.