Keep Your Eyes Out for Eyewitness ID Ruling: Argument This Week

The Supreme Court will hear the case of Perry v. New Hampshire on November 2, 2011. The issue presented is whether an eyewitness identification should be excluded when the circumstances make the identification unreliable even where the police did not create the circumstances. The Supreme Court last considered eyewitness identification in 1977 in Manson v. Brathwaite where the Court held that eyewitness identification should not be excluded if the circumstances are reliable.

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia. A number of groups have written amicus briefs for the Court to consider in Perry including the National Association of Criminal Defense Lawyers, the Innocence Project, and the American Psychological Association. All briefing is available on Scotus. Stay tuned.

New Report from ACLU on "Sneak and Peek" Warrants Permitted by Patriot Act

The ACLU reports that between October 1, 2009 and September 30, 2010 federal judges permitted government "sneak and peak" warrants permitted by the Patriot Act. The ACLU contacted the Administrative Office of the U.S. Courts to obtain up-to-date numbers on how frequently the government uses the "sneak and peek" searches (also called delayed-notice searches), a government surveillance tool authorized by the Patriot Act. The report (available here) shows that in 2010, sneak and peek warrants were issued more than twice as often as in 2009, and more than three times as often as in 2008.

Google Refuses to Take Down Videos of Police Brutality

Google refused the request of a U.S. law enforcement agency earlier this year to remove a YouTube video showing police brutality, it has been revealed.

The web giant did not give details about the contents of the video, not pictured, but said it turned down the petition for it to be taken down between January and June this year.

'We received a request from a local law enforcement agency to remove YouTube videos of police brutality, which we did not remove,' Google wrote in its Transparency Report. The Google Report delineates content removal requests by party requesting the removal, the reason for the removal, and whether the request was complied with.

Full article here.

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Collateral Consequences of Criminal Record: NACDL to Start Task Force

NACDL released today that they will be holding an inaugural hearing in Chicago, Ill. this Thursday and Friday to address the issue of the criminal record syndrome. It goes something like this: Potential Employer: Have you been convicted of a felony? Potential Applicant: Yes, as a juvenile. The collateral consequences of a criminal conviction are far reaching and NACDL proposes to address the issue starting this week in Chicago for two days of hearings from

Press Release(Oct. 17, 2011) – It has been reported that as many as one in four American adults have a criminal record, some 65 million people. The National Association of Criminal Defense Lawyers (NACDL) is a leading national voice calling attention to this matter of significant public concern -- the vast expansion in recent decades of the criminal law and its intended and unintended consequences in American society. In addition to its ongoing work in our courts, legislatures and the public square to combat the overcriminalization of conduct in U.S. society, NACDL is also focused on the consequences of conviction – specific legal barriers, generalized discrimination, and social stigma – which have likewise become more numerous and severe, more public, and more permanent. They affect jobs and licenses, housing, public benefits, judicial rights, parental rights, interstate travel, and even volunteer opportunities. To this end, NACDL recently established the national Task Force on Restoration of Rights and Status After Conviction to undertake an inquiry into how legal mechanisms for relief from the collateral consequences of conviction are actually working, in state and federal systems, and develop comprehensive proposals for reform. The co-Chairs of the Task Force are attorneys Rick Jones of New York City and Vicki Young of San Francisco. The Task Force will be holding its inaugural hearing in Chicago, Ill., this Thursday and Friday, Oct. 20 and 21, 2011. Approximately two dozen witnesses over the course of two full days will testify before the task force providing a range of personal and professional experiences, perspectives and expertise on the important practical issues surrounding barriers to re-entry and the collateral consequences of a criminal record. Witnesses will include Judge Paul Biebel, Presiding Judge, Cook County Circuit Court, Criminal Division and John Schomberg, General Counsel, Office of the Governor of Illinois, as well as individuals who themselves confronted barriers to re-entry and other stakeholders.

DNA Training Resources One Stop Shopping

The National Institute of Justice has gathered all of the animations and videos from the training courses on DNA.gov. The NIJ encourages people to use these as resources in teaching or other work and ask only that acknowledgment is given to DNA.gov and NIJ as the source. Here is a link to everything that is available. A list of topics include: Forensic DNA for Officers of the Court; DNA: A Prosecutor's Practice Notebook; Collecting DNA Evidence at Property Crime Scenes; Laboratory Orientation and Testing of Body Fluids and Tissues for Forensic Analysis; DNA Amplification for Forensic Analysts; Amplified DNA Product Separation for Forensic Analysts; STR Data Analysis and Interpretation for Forensic Analysts; Population Genetics and Statistics for the Forensic Analysts; Communication Skills, Report Writing and Courtroom Testimony for Forensic Analysts; and Advanced and Emerging DNA Technologies and Techniques.

The Revolution Will Not Be Televised: Steve Jobs..."How To Live Before You Die"

Steve Jobs

Barry Scheck Interview: Public Defenders, "Liberty's Last Champion"

Here is an interesting profile of Barry Scheck on New York 1 where he addresses Troy Davis's recent execution, DNA exoneration, the O.J Simpson case, his early career as a public defender in the Bronx and how it all led to the birth of the Innocence Project.

Millions in complex assets mishandled or lost while under US Marshals Service care

From the International Association for Asset Recovery:

A new audit report from the Department of Justice Inspector General largely supports allegations made by a contract forfeiture support whistle-blower, detailing wasteful procedures and undervaluation of complex assets.

The Justice Department’s top internal investigator released a scathing audit report last Tuesday confirming many of the allegations made by a former government contractor who accused the US Marshals Service, its director and his employer of improprieties 10 months ago. The report, from the Office of the Inspector General, not only calls into question the leadership and oversight of the Marshals’ Complex Assets Group from 2005 to 2009, it also portrays an asset management strategy that allowed the unit to mishandle, undervalue and ultimately lose millions of dollars that might have gone to restitution for victims of financial crimes.

The report exonerates former Complex Assets Group leader Leonard Briskman of wrongdoing, while exposing significant deficiencies in asset management practices during his tenure. His group, operating under the service’s Asset Forfeiture Program and forfeiture director Eben Morales, handles intricate, high-dollar assets such as financial instruments or interests in partnership businesses. The value of these complex assets, according to the report, ranges from $1 million to $49 million. The OIG found that the group disposed of $136 million between 2005 and 2010.

Whistleblower’s lawsuit sparked investigation

Briskman brought to the position a wealth of experience in managing retail and other properties in the private sector. But in 2009, Brian Aryai, a certified public accountant working for the largest government forfeiture contractor, Forfeiture Support Associates (FSA), began to notice irregularities in the valuation of assets handled by the Complex Assets Group. In a federal court complaint filed in November 2010, Aryai claims some assets were sold for significantly less than they were worth, often to buyers who got the inside track on the sales, which were not opened to public auction. Audit trails, he alleged, were nonexistent or obscured.

Briskman, Aryai suggested, was operating a fiefdom in which he was the ultimate arbiter of the value and the seller of these instruments, and no one else in the Marshals’ Asset Forfeiture Division was overseeing his activities.  

While other employees of the service were in no position to question Briskman’s expertise – according to the audit, Morales says his staff was not well versed in these types of assets – Aryai was better qualified to render judgment. A longtime US Treasury agent and fraud examiner, Aryai has worked in complex financial fraud and assets investigations throughout his career. The undervaluation of assets was immediately apparent to him, he claims.

In his 2010 complaint, filed in the Southern District of New York, Aryai says Briskman’s decisions “were not supported by a process whereby independent valuations were secured” to ensure a better sale price. Briskman, Aryai claims, would place low values on items and then negotiate with buyers – who were often his personal contacts – to sell the items without public notice.

Aryai says he approached his bosses at the contractor, FSA, about what he discovered. But during the March 2010 disposition of a minority interest in the so-called Delta Fund – another asset Aryai says he found to be vastly undervalued and undersold by Briskman – Aryai received an e-mail from his FSA supervisor, Yolanda Lopez.

“Brian. Be careful,” the e-mail said. “Len is the Senior USMS for Business and Complex assets. We are contractors and must cover for him, present a united front. US Attorneys should not get the impression that we are in differing levels.”

But that is exactly what did happen. From the Inspector General’s report:

“According to the AUSA [Assistant U.S. Attorney] who is working on the Madoff case, the Complex Asset Team’s lack of transparent disposition procedures in part undermined her confidence in the Complex Asset Team’s ability to manage and dispose of complex assets effectively.”

Further investigation led Aryai to suspect that Briskman was operating his own private assets valuation firm, Asset Valuation Advisors LLC. On various websites, AVA claimed to be working assets valuation cases that were actually Marshals Service forfeiture matters – an ethical grey area for professionals in the public sector. According to a cached historical page stored on the American Society of Appraisers website, Briskman as recently as 2009 listed AVA as his employer. Tax documents filed with the state of Maryland show that AVA shares a Rockville, Md., address with Briskman. In several professional associations and on other private websites, Briskman did not disclose his work for the Marshals Service.

Briskman cleared of wrongdoing, but his unit’s practices ripped

While Tuesday’s report does not explicitly credit Aryai, it was he who got the ball rolling. Before litigating, he took his concerns to Barbara Ward, an assistant US attorney for the Southern District of New York, who the report says alerted the Inspector General to the problems.

The resulting investigation found Briskman had not used his position to funnel business to his private business, but Aryai claims otherwise. His complaint describes Briskman’s LinkedIn profile, which he says describes disposed assets credited to AVA’s efforts but were remarkably similar to assets handled by the Marshals Complex Assets Group.

Briskman has since been reassigned. Reached by e-mail on Wednesday, he said he could not comment on the report. [In the interest of full disclosure, Briskman is an IAAR member, and FSA is a frequent sponsor of IAAR events.]

“This report … fully validates the legitimate concerns [Aryai] had with the manner and means in which Leonard Briskman operated and controlled the Complex Assets Group,” said Joshua L. Weiner, Aryai’s attorney. His whistleblower case is currently before the Southern District of New York.

Full article can be found here.

Making Yourself Indispensable

From the Harvard Business Review by John H. Zenger, Joseph R. Folkman, and Scott K. Edinger

A manager we’ll call Tom was a midlevel sales executive at a Fortune 500 company. After a dozen or so years there, he was thriving—he made his numbers, he was well liked, he got consistently positive reviews. He applied for a promotion that would put him in charge of a high-profile worldwide product-alignment initiative, confident that he was the top candidate and that this was the logical next move for him, a seemingly perfect fit for his skills and ambitions. His track record was solid. He’d made no stupid mistakes or career-limiting moves, and he’d had no run-ins with upper management. He was stunned, then, when a colleague with less experience got the job. What was the matter?

As far as Tom could tell, nothing. Everyone was happy with his work, his manager assured him, and a recent 360-degree assessment confirmed her view. Tom was at or above the norm in every area, strong not only in delivering results but also in problem solving, strategic thinking, and inspiring others to top performance. “No need to reinvent yourself,” she said. “Just keep doing what you’re doing. Go with your strengths.”

But how? Tom was at a loss. Should he think more strategically? Become even more inspiring? Practice problem solving more intently?

It’s pretty easy and straightforward to improve on a weakness; you can get steady, measurable results through linear development—that is, by learning and practicing basic techniques. But the data from our decades of work with tens of thousands of executives all over the world has shown us that developing strengths is very different. Doing more of what you already do well yields only incremental improvement. To get appreciably better at it, you have to work on complementary skills—what we call nonlinear development. This has long been familiar to athletes as cross-training. A novice runner, for example, benefits from doing stretching exercises and running a few times a week, gradually increasing mileage to build up endurance and muscle memory. But an experienced marathoner won’t get significantly faster merely by running ever longer distances. To reach the next level, he needs to supplement that regimen by building up complementary skills through weight training, swimming, bicycling, interval training, yoga, and the like.

So it is with leadership competencies. To move from good to much better, you need to engage in the business equivalent of cross-training. If you’re technically adept, for instance, delving even more deeply into technical manuals won’t get you nearly as far as honing a complementary skill such as communication, which will make your expertise more apparent and accessible to your coworkers.

In this article we provide a simple guide to becoming a far more effective leader. We will see how Tom identified his strengths, decided which one to focus on and which complementary skill to develop, and what the results were. The process is straightforward, but complements are not always obvious. So first we’ll take a closer look at the leadership equivalent of cross-training.

The Interaction Effect

In cross-training, the combination of two activities produces an improvement—an interaction effect—substantially greater than either one can produce on its own. There’s nothing mysterious here. Combining diet with exercise, for example, has long been known to be substantially more effective in losing weight than either diet or exercise alone.

In our previous research we found 16 differentiating leadership competencies that correlate strongly with positive business outcomes such as increased profitability, employee engagement, revenue, and customer satisfaction. Among those 16, we wondered, could we find pairs that would produce significant interaction effects?

Full article can be found here.  

Little Red Rules App

Congratulations to the design team behind the Little Red Rules App Evidence Quick Reference App now available on the I-Tunes Store. The minds from the Federal Defenders of Eastern Washington and Idaho are pleased to announce the new app that contains the Federal Rules of Evidence, Drug Quantity and Sentencing Charts, select US Constitution Amendments, and selected annotations to case law. A handy reference tool for court, the jail, and where ever you may find yourself asking, "Is this hearsay?". Available for both I-Phone and I-Pad, stay tuned for Droid App.

Colin Powell: A Leadership Primer

LESSON ONE

"Being responsible sometimes means pissing people off."

Good leadership involves responsibility to the welfare of the group, which means that some people will get angry at your actions and decisions. It's inevitable if you're honourable. Trying to get everyone to like you is a sign of mediocrity: You'll avoid the tough decisions, you'll avoid confronting the people who need to be confronted, and you'll avoid offering differential rewards based on differential performance because some people might get upset. Ironically, by procrastinating on the difficult choices, by trying not to get anyone mad, and by treating everyone equally "nicely" regardless of their contributions, you'll simply ensure that the only people you'll wind up angering are the most creative and productive people in the organization.

LESSON TWO

"The day soldiers stop bringing you their problems is the day you have stopped leading them. They have either lost confidence that you can help them or concluded that you do not care. Either case is a failure of leadership."

If this were a litmus test, the majority of CEOs would fail. One, they build so many barriers to upward communication that the very idea of someone lower in the hierarchy looking up to the leader for help is ludicrous. Two, the corporate culture they foster often defines asking for help as weakness or failure, so people cover up their gaps, and the organization suffers accordingly. Real leaders make themselves accessible and available. They show concern for the efforts and challenges faced by underlings—even as they demand high standards. Accordingly, they are more likely to create an environment where problem analysis replaces blame.

LESSON THREE

"Don't be buffaloed by experts and elites. Experts often possess more data than judgment. Elites can become so inbred that they produce hemophiliacs who bleed to death as soon as they are nicked by the real world."

Small companies and start-ups don't have the time for analytically detached experts. They don't have the money to subsidize lofty elite, either. The president answers the phone and drives the truck when necessary; everyone on the payroll visibly produces and contributes to bottom-line results or they're history. But as companies get bigger, they often forget who "brung them to the dance": things like all-hands involvement, egalitarianism, informality, market intimacy, daring, risk, speed, agility. Policies that emanate from ivory towers often have an adverse impact on the people out in the field who are fighting the wars or bringing in the revenues. Real leaders are vigilant—and combative—in the face of these trends.

LESSON FOUR

"Don't be afraid to challenge the pros, even in their own backyard."

Learn from the pros, observe them, seek them out as mentors and partners. But remember that even the pros may have leveled out in terms of their learning and skills. Sometimes even the pros can become complacent and lazy. Leadership does not emerge from blind obedience to anyone. Xerox's Barry Rand was right on target when he warned his people that if you have a yes-man working for you, one of you is redundant. Good leadership encourages everyone's evolution.

LESSON FIVE

"Never neglect details. When everyone's mind is dulled or distracted the leader must be doubly vigilant."

Strategy equals execution. All the great ideas and visions in the world are worthless if they can't be implemented rapidly and efficiently. Good leaders delegate and empower others liberally, but they pay attention to details, every day. (Think about supreme athletic coaches like Jimmy Johnson, Pat Riley and Tony La Russa). Bad ones—even those who fancy themselves as progressive "visionaries"—think they're somehow "above" operational details. Paradoxically, good leaders understand something else: An obsessive routine in carrying out the details begets conformity and complacency, which in turn dulls everyone's mind. That is why even as they pay attention to details, they continually encourage people to challenge the process. They implicitly understand the sentiment of CEO-leaders like Quad/Graphic's Harry Quadracchi, Oticon's Lars Kolind and the late Bill McGowan of MCI, who all independently asserted that the job of a leader is not to be the chief organizer, but the chief dis-organizer.

LESSON SIX

"You don't know what you can get away with until you try."

You know the expression "it's easier to get forgiveness than permission?" Well, it's true. Good leaders don't wait for official blessing to try things out. They're prudent, not reckless. But they also realize a fact of life in most organizations: If you ask enough people for permission, you'll inevitably come up against someone who believes his job is to say "no." So the moral is, don't ask. I'm serious. In my own research with colleague Linda Mukai, we found that less effective middle managers endorsed the sentiment, "If I haven't explicitly been told 'yes,' I can't do it," whereas the good ones believed "If I haven't explicitly been told 'no,' I can." There's a world of difference between these two points of view.

LESSON SEVEN

"Keep looking below surface appearances. Don't shrink from doing so (just) because you might not like what you find."

"If it ain't broke, don't fix it" is the slogan of the complacent, the arrogant or the scared. It's an excuse for inaction, a call to non-arms. It's a mindset that assumes (or hopes) that today's realities will continue tomorrow in a tidy, linear and predictable fashion. Pure fantasy. In this sort of culture, you won't find people who proactively take steps to solve problems as they emerge. Here's a little tip: Don't invest in these companies.

LESSON EIGHT

"Organization doesn't really accomplish anything. Plans don't accomplish anything, either. Theories of management don't much matter. Endeavours succeed or fail because of the people involved. Only by attracting the best people will you accomplish great deeds."

In a brain-based economy, your best assets are people. We've heard this expression so often that it's become trite. But how many leaders really "walk the talk" with this stuff? Too often, people are assumed to be empty chess pieces to be moved around by grand viziers, which may explain why so many top managers immerse their calendar time in deal-making, restructuring and the latest management fad. How many immerse themselves in the goal of creating an environment where the best, the brightest, the most creative are attracted, retained and-most importantly-unleashed?

LESSON NINE

"Organization charts and hence titles count for next to nothing."

Organization charts are frozen, anachronistic photos in a workplace that ought to be as dynamic as the external environment around you. If people really followed organization charts, companies would collapse. In well-run organizations, titles are also pretty meaningless. At best, they advertise some authority—an official status conferring the ability to give orders and induce obedience. But titles mean little in terms of real power, which is the capacity to influence and inspire. Have you ever noticed that people will personally commit to certain individuals who on paper (or on the org chart) possess little authority—but instead possess pizzazz, drive, expertise and genuine caring for team-mates and products? On the flip side, non-leaders in management may be formally anointed with all the perks and frills associated with high positions, but they have little influence on others, apart from their ability to extract minimal compliance to minimal standards.

LESSON TEN

"Never let your ego get so close to your position that when your position goes, your ego goes with it."

Too often, change is stifled by people who cling to familiar turfs and job descriptions. One reason that even large organizations wither is that managers won't challenge old, comfortable ways of doing things. But real leaders understand that, nowadays, every one of our jobs is becoming obsolete. The proper response is to obsolete our activities before someone else does. Effective leaders create a climate where people's worth is determined by their willingness to learn new skills and grab new responsibilities, thus perpetually reinventing their jobs. The most important question in performance evaluation becomes not, "How well did you perform your job since the last time we met?" but, "How much did you change it?"

LESSON ELEVEN

"Fit no stereotypes. Don't chase the latest management fads. The situation dictates which approach best accomplishes the team's mission."

Flitting from fad to fad creates team confusion, reduces the leader's credibility and drains organizational coffers. Blindly following a particular fad generates rigidity in thought and action. Sometimes speed to market is more important than total quality. Sometimes an unapologetic directive is more appropriate than participatory discussion. To quote Powell, some situations require the leader to hover closely; others require long, loose leashes. Leaders honour their core values, but they are flexible in how they execute them. They understand that management techniques are not magic mantras but simply tools to be reached for at the right times.

LESSON TWELVE

"Perpetual optimism is a force multiplier."

The ripple effect of a leader's enthusiasm and optimism is awesome. So is the impact of cynicism and pessimism. Leaders who whine and blame engender those same behaviours among their colleagues. I am not talking about stoically accepting organizational stupidity and performance incompetence with a "what, me worry?" smile. I am talking about a guns ho attitude that says "we can change things here, we can achieve awesome goals, we can be the best." Spare me the grim litany of the "realist"; give me the unrealistic aspirations of the optimist any day.

LESSON THIRTEEN

"Powell's Rules for Picking People"—Look for intelligence and judgment and, most critically, a capacity to anticipate, to see around corners. Also look for loyalty, integrity, a high energy drive, a balanced ego and the drive to get things done."

How often do our recruitment and hiring processes tap into these attributes? More often than not, we ignore them in favour of length of resume, degrees and prior titles. A string of job descriptions a recruit held yesterday seem to be more important than who one is today, what she can contribute tomorrow or how well his values mesh with those of the organization You can train a bright, willing novice in the fundamentals of your business fairly readily, but it's a lot harder to train someone to have integrity, judgment, energy, balance and the drive to get things done. Good leaders stack the deck in their favour right in the recruitment phase.

LESSON FOURTEEN

(Borrowed by Powell from Michael Korda): "Great leaders are almost always great simplifiers, who can cut through argument, debate and doubt, to offer a solution everybody can understand."

Effective leaders understand the KISS principle, or Keep It Simple, Stupid. They articulate vivid, overarching goals and values, which they use to drive daily behaviours and choices among competing alternatives. Their visions and priorities are lean and compelling, not cluttered and buzzword-laden. Their decisions are crisp and clear, not tentative and ambiguous. They convey an unwavering firmness and consistency in their actions, aligned with the picture of the future they paint. The result? Clarity of purpose, credibility of leadership, and integrity in organization

LESSON FIFTEEN

Part I: "Use the formula P=40 to 70, in which P stands for the probability of success and the numbers indicate the percentage of information acquired." Part II: "Once the information is in the 40 to 70 range, go with your gut."

Powell's advice is don't take action if you have only enough information to give you less than a 40 percent chance of being right, but don't wait until you have enough facts to be 100 percent sure, because by then it is almost always too late. His instinct is right: Today, excessive delays in the name of information-gathering needs analysis paralysis. Procrastination in the name of reducing risk actually increases risk.

LESSON SIXTEEN

"The commander in the field is always right and the rear echelon is wrong, unless proved otherwise."

Too often, the reverse defines corporate culture. This is one of the main reasons why leaders like Ken Iverson of Nucor Steel, Percy Barnevik of Asea Brown Boveri, and Richard Branson of Virgin have kept their corporate staffs to a bare-bones minimum. (And I do mean minimum—how about fewer than 100 central corporate staffers for global $30 billion-plus ABB? Or around 25 and 3 for multi-billion Nucor and Virgin, respectively?) Shift the power and the financial accountability to the folks who are bringing in the beans, not the ones who are counting or analyzing them.

LESSON SEVENTEEN

"Have fun in your command. Don't always run at a breakneck pace. Take leave when you've earned it. Spend time with your families." 

Corollary: "Surround yourself with people who take their work seriously, but not themselves, those who work hard and play hard."

Herb Kelleher of Southwest Air and Anita Roddick of The Body Shop would agree: Seek people who have some balance in their lives, who are fun to hang out with, who like to laugh (at themselves, too) and who have some non-job priorities which they approach with the same passion that they do their work. Spare me the grim workaholic or the pompous pretentious "professional;" I'll help them find jobs with my competitor.

LESSON EIGHTEEN

"Command is lonely."

Harry Truman was right. Whether you're a CEO or the temporary head of a project team, the buck stops here. You can encourage participative management and bottom-up employee involvement, but ultimately, the essence of leadership is the willingness to make the tough, unambiguous choices that will have an impact on the fate of the organization I've seen too many non-leaders flinch from this responsibility. Even as you create an informal, open, collaborative corporate culture, prepare to be lonely.