August 12, 2017 by
Surveillance footage of a May 5 incident on London's Putney Bridge went viral earlier this month after it was released by London authorities. In it, we see a man jogging on the side of the bridge when he suddenly pushes a passing woman to the ground, putting her in the path of a coming bus. Fortunately, the bus swerved and narrowly avoided the woman. According to CBS News, the woman encountered the man again about 15 minutes later, after people had rushed to check on her wellbeing. She said that she saw the same man jogging back across the bridge, but he ignored her calls and jogged away. On Thursday, London's Metropolitan Police announced on Facebook that a "man was arrested on suspicion of causing grievous bodily harm following police enquiries at an address in the Chelsea area on the morning of Thursday, 10 August." That person was later determined to be 41-year-old Eric Bellquist, who NY Daily News describes as a San Diego native who's been working as an investment baker with London's Hutton Collins Partners since 2002. The Guardian reports that he'd also worked for the now-defunct Lehman Brothers. Bellquist, who was later released on bail, has not been charged with a crime in connection with the incident. The investigation is ongoing. The law firm representing Bellquist later confirmed on Friday that he was the man arrested, adding that he wasn't the person who'd attacked the woman on Putney Bridge. They made the announcement on Twitter: Bellquist's profile on Hutton Collins Partners's website is still up. It says he currently represents Hutton Collins for the restaurant chains Byron Hamburgers and Wagamama, and had helmed the firm's investment in Caffè Nero. source

August 12, 2017 by
A South Korean court has for the second time in a week ordered Mitsubishi Heavy Industries Ltd. to pay compensation to Korean victims of wartime forced labor. The Friday ruling compels the Japanese firm to pay four victims a total of 470 million won (about ¥45 million). Kim Jae-rim (center), one of the South Korean plaintiffs in a suit against Mitsubishi Heavy Industries, holds up a sign announcing victory on Friday, after the Gwangju District Court ordered the Japanese company to pay Kim and three other victims of wartime forced labor a total of 470 million won in compensation. The Gwangju District Court ordered the firm to pay 150 million won to Oh Cheol-seok, a younger brother of late victim Oh Kil-se; 120 million won to 87-year-old victim Kim Jae-rim; and 100 million won each to victims Yang Young-soo, 86, and Shim Sun-ae, 87, according to the Yonhap news agency. “Mitsubishi Heavy Industries’ forcible mobilization of the plaintiffs into producing war materials constitutes inhumane illegal activities that are an active involvement in the unlawful colonial occupation and war of aggression,” the court said, according to Yonhap. On Tuesday, the same court found Mitsubishi Heavy liable for damages in a similar ruling, directing the firm to pay 85-year-old Kim Yong-ok and a family member of the late Choi Jong-rye a total of about 123.20 million won. A string of district court rulings have found in favor of those forced to work for Japanese firms following a landmark May 2012 decision by the country’s Supreme Court. Reversing previous court decisions, the top court ruled that the right of former forced workers and their families to seek withheld wages and compensation was not invalidated by a 1965 Japan-South Korea agreement that Tokyo claims settled all postwar compensation claims, prompting plaintiffs to seek damages in South Korea. Japan maintains that all individual compensation claims were settled with that treaty, under which South Korea and Japan normalized their relations. Mitsubishi Heavy has argued in court in South Korea that the plaintiffs’ claims should be rejected on this basis. source

August 11, 2017 by
Louisiana Agency Destroys Man's Business, Refuses To Pay Over $160,000 In Compensation Wielding the power of eminent domain, local and state government routinely seize private property from thousands of owners each year, affecting millions of dollars in real estate. In order to protect property owners from abusive condemnations, the Fifth Amendment only allows eminent domain for “public use” and if the owner is paid “just compensation.” Traditionally, public use was limited to infrastructure projects like roads and bridges. But in 2005, the U.S. Supreme Court weakened that safeguard when it ruled that seizing homes or businesses with eminent domain could be justified by an alleged “public benefit,” like boosting tax revenue. In what quickly became a reviled decision, Kelo v. New London upheld a plan by the city of New London, Conn. to bulldoze an entire neighborhood to build an “urban village” that would accompany a Pfizer facility—a redevelopment plan that never came to fruition. (Feral cats now prowl the vacant lots.) While the “public use” provision has been gutted in federal courts, the case of dirt farmer Chad Jarreau could reinvigorate the Just Compensation Clause. After a Louisiana agency took his land with eminent domain, Jarreau was denied nearly $165,000 in compensation for the damage done to his business. Nor is his story unique: Many government agencies, bureaus and departments don’t have to pay a dime if their condemnations force a business to lose money it would have otherwise earned. Now Jarreau has partnered with the Institute for Justice (which represented property owners in the Kelo case). Together, they filed a cert petition last week asking the Supreme Court to hear Jarreau’s case and end this widespread injustice. For almost a decade, Jarreau extracted and refined dirt on his land in Lafourche Parish, Louisiana. As a dirt farmer, Jarreau first excavated pits of dirt, sometimes as deep as 20 feet, before draining and churning those pits. Ultimately, this process created fine-grained, sandy dirt which he sold through his own business, Bayou Construction & Trucking Co., LLC, to construction projects. But thanks to the South Lafourche Levee District, Bayou Construction was forced to take a dirt nap. In January 2011, the Levee District passed a resolution to “appropriate” land so that it could upgrade and expand levees, as well as remove earth or soil. Almost an acre of Jarreau’s land was caught in this “permanent servitude,” which essentially granted the Levee District full control over that part of his property. The agency wasn’t planning to build a levee on part of Jarreau’s land. Instead, it wanted his dirt. Initially, the Levee District offered Jarreau a mere $1,326.69 for his almost acre. He refused. The Levee District also sent Jarreau also received a letter ordering him to “immediately cease and desist performing any and all activities upon the property as appropriated.” Jarreau, who still had contracts to fulfill, at first ignored the letter and continued farming his dirt. In response, the Levee District slapped Jarreau with a lawsuit and filed an injunction to stop Jarreau from running his dirt farm on that portion. Incredibly, despite offering a pittance for Jarreau’s land, the Levee District had the chutzpah to demand monetary damages for the dirt Jarreau extracted after the cease-and-desist. Jarreau won, at first. When his case went to trial, the court rejected the lowball offer and ruled that the agency had to pay Jarreau an additional $10,542 for appropriating his land. However, the trial court further understood that Jarreau’s land was a valuable business, which had suffered “economic and business losses.” In fact, the appropriation directly forced Bayou Construction to lose at least one supply contract. After calculating the total amount of dirt available on that tract, extraction costs and the price his quality dirt could fetch, the trial court awarded Jarreau $164,705.40 as compensation. Using that same reasoning, the trial court further ruled that Jarreau had to pay the Levee District $16,956 for his “wrongful excavation.” Unfortunately, an appeals court and, ultimately, the Louisiana Supreme Court overturned the compensation for his taken business. Writing for the majority, Justice Marcus Clark claimed that the Fifth Amendment, which guarantees “just compensation” for victims of eminent domain, “does not include lost profits.” Even though Jarreau can no longer farm dirt on this piece of property—which he already invested in—the Louisiana Supreme Court ruled that he did not deserve compensation because he could relocate and “find another site to extract dirt and undertake his dirt hauling operations.” Yet the U.S. Supreme Court rejected a similar argument almost 75 years ago. In Kimball Laundry Co. v. United States, the High Court ruled in favor of a Nebraska laundry business that had been by commandeered by the Army during World War II. The laundry owner had to be compensated for the “diminution in the value of its business due to the destruction of its ‘trade routes,’” which included its customer base. The damage did, however, have to be directly attributed to the government’s use of eminent domain, and not “speculative.” As the Institute for Justice explained in its cert petition: The entire point of Kimball Laundry was that even though the government did not literally take the laundry business, and even though the business was not completely destroyed going forward, the government had nevertheless harmed the business by taking property that was integral to its operation. Even though this sounds like a basic principle of fairness (and it is), courts are surprisingly split on whether or not the government has to pay entrepreneurs if it destroys their businesses with eminent domain. The Supreme Courts of Minnesota, Nevada, New Mexico, and Pennsylvania have all ruled in favor of this form of compensation, while the Louisiana Supreme Court now joins the Federal Circuit and the highest courts in Montana and Wisconsin in opposition. Hearing Jarreau’s case would let the U.S. Supreme Court settle this critical issue. Letting states like Louisiana legally lowball entrepreneurs deprives them of the proper compensation they deserve. But if government officials actually have to consider the damage done to people’s livelihoods, that would present a more accurate picture of eminent domain’s true costs, which may make them more reticent to seize private property. “Allowing government to take property without paying for the damage it causes will just lead to more use and abuse of eminent domain, with the costs borne by innocent business owners,” noted Scott Bullock, president and general counsel of the Institute for Justice. “It is past time the Supreme Court put a stop to these abuses and forced local and state governments to make their victims whole.” source

August 8, 2017 by
The White House is considering Geoffrey Berman, an attorney who practices in New Jersey and New York and one of Rudolph Giuliani’s law partners, to lead the US attorney’s office in Manhattan — one of the most high-profile federal law enforcement jobs in the country. The Trump administration recently proposed a package of potential nominees for New York's federal vacancies to the state's senators. Berman’s name was included as part of a package of proposed candidates for New York judicial and US attorney vacancies sent by the White House in mid-July to New York’s Democratic senators, according to a source familiar with the process. The list offers an early glimpse at the Trump administration’s strategy for filling vacancies in states with two Democratic senators. Berman, who did not immediately return a request for comment, was the only name that the White House proposed for US attorney in the Southern District of New York. In contrast, the administration sent multiple names for other positions, including for federal judgeships and US attorney for the Eastern District of New York. A second source familiar with the process said that the list was intended to spur a dialogue with New York’s senators — Senate Minority Leader Chuck Schumer and Sen. Kirsten Gillibrand — about a compromise package of nominees. The White House historically defers to home state senators to recommend US attorney candidates, but there can be more tension when there’s a difference in party. Senators can hold up judicial and US attorney nominees they don’t approve of via a system known as the “blue slip process,” although it’s rarely used for US attorneys. The majority of US attorney nominees announced by the Trump administration so far are from states with two Republican senators. Negotiating a package of New York nominees would spare the White House a fight with Schumer, who as minority leader has repeatedly sparred with President Trump and was critical of his decision to fire former FBI director James Comey. Representatives for Schumer and Gillibrand’s offices did not return requests for comment on Monday. A White House spokesperson also did not not immediately respond to questions about the list of names. Berman coleads the New Jersey office of the law firm Greenberg Traurig but also practices in New York. He would bring Justice Department experience to the job, having served as an assistant US attorney in the Southern District of New York from 1990 to 1994, according to his law firm bio online. In May, multiple news outlets reported that he was under consideration for the New Jersey US attorney position. The Philadelphia Inquirer reported at the time that New Jersey Gov. Chris Christie, who previously served as US attorney, was backing a different lawyer, Craig Carpenito, for the position; no nominee has been announced yet. Most US attorneys have to live in the district where they serve, but federal law carves out an exception for the US attorneys in Washington, DC, and the southern and eastern districts of New York, who can live within 20 miles of their district. Former Manhattan US attorney Preet Bharara was fired by Trump in March after he refused to resign at the request of Attorney General Jeff Sessions; Sessions had asked the majority of holdover US attorneys from the Obama administration to step down. Bharara had served as Manhattan’s top federal prosecutor since 2009, and since his firing has become an outspoken critic of the president. Acting US Attorney Joon Kim, Bharara’s former deputy, has been leading the office since March. Bharara worked for Schumer in the Senate before becoming US attorney, and the minority leader has lamented his dismissal. Given its jurisdiction over Wall Street, the Manhattan US attorney’s office handles major financial crimes prosecutions, and its alumni have gone on to top jobs at the Justice Department, on the federal bench, and in politics. Giuliani, also a partner at Greenberg Traurig and a top adviser to Trump during the campaign, led the office in the 1980s. Comey served as the US attorney from 2002 to 2003. The White House has yet to announce any nominees for US attorney and judicial vacancies in New York. The list sent to Schumer and Gillibrand in July includes four names for the US Court of Appeals for the Second Circuit, where there are two vacancies: US District Judge Richard Sullivan; Matthew McGill, a partner at the law firm Gibson, Dunn & Crutcher in Washington; Nicholas Quinn Rosenkranz, a professor at Georgetown University Law Center; and Michael Park, a partner at the law firm Consovoy McCarthy Park in New York. The second source familiar with the process who discussed the list with BuzzFeed News said that the White House list included some names that officials thought Schumer and Gillibrand might support, and not just the White House’s top picks. The White House sent two names to the senators for US attorney for the Eastern District of New York, which is also known for handling financial crimes cases as well as terrorism and mob prosecutions, and counts former attorney general Loretta Lynch among its alumni: Edward McNally, a partner at Kasowitz Benson Torres in New York — the firm of Trump’s former lead outside counsel in the Russia investigation, Marc Kasowitz — and Richard Donoghue, a former Eastern District prosecutor who is now at CA Technologies, according to his LinkedIn profile. For the US District Court for the Southern District of New York, the White House in July sent three names: Lewis Liman, a partner at the law firm Cleary Gottlieb Steen & Hamilton in New York; US Bankruptcy Judge Mary Kay Vyskocil, who sits in the Southern District; and Daniel Sullivan, a partner at Holwell Shuster & Goldberg in New York. As of mid-July, there was only one vacant seat in the Manhattan court, but two more seats opened up in August. For the US District Court for the Eastern District of New York, where there are four vacancies, the White House pitched four names: US Magistrate Judge Gary Brown, who sits in the Eastern District; Diane Gujarati, a federal prosecutor; Eric Komitee, a former federal prosecutor in the Eastern District who is now a lawyer for Viking Global Investors, according to his LinkedIn profile; and Rachel Kovner, a lawyer in the US solicitor general’s office. Brown and Gujarati were previously nominated to the Eastern District court by President Obama. The White House proposed nominating the lawyers serving as acting US attorneys in the western and northern districts of New York — James Kennedy Jr. and Grant Jaquith, respectively — for the permanent positions. And in the federal trial courts in the western and northern districts, the White House sent one name for each of the lone vacancies in those courts: John Sinatra Jr. of the law firm Hodgson Russ in Buffalo, for the western district; and John Sarcone III, who runs his own practice in White Plains, New York, for the northern district. source

August 7, 2017 by
Presidio Terrace is a block-long, oval street dotted with 35 megamillion-dollar mansions known for famous residents including Sen. Dianne Feinstein and House Democratic leader Nancy Pelosi. It’s a street known for its exclusivity — a guard is always on duty at the stone-gate entrance, according to the San Francisco Chronicle. But due to a low-profile auction, a South Bay couple now own the street after a payout of just $90,000. And now residents might have to pay up just to park on the road, which had been managed by the homeowners since at least 1905. Tina Lam and Michael Cheng own the street, the sidewalks and all other “common ground,” including garden islands and palm trees. So how did they snag the wealthy, private road for relative chump change? It turns out the homeowners association for Presidio Terrace failed to pay a $14-a-year property tax, something that owners of all 181 private streets in San Francisco must do. So the city’s tax office put the property up for sale at the cost of $994 in an online auction to regain unpaid back taxes, penalties and interest. The couple eventually won the street with a $90,100 bid, outlasting several other bidders. Scott Emblidge, the attorney for the Presidio Homeowners Association, said in a letter to the city that the owners failed to pay because the tax bill was being sent to the address of an accountant who hadn’t worked for the homeowners association since the 1980s. Now the couple, who purchased the road in April 2015, are aiming to cash in. “We could charge a reasonable rent on it,” Cheng said, adding he and his wife could stand to profit from the 120 parking spaces on the street. But residents were left in the dark — they didn’t know their street and sidewalks had been purchased until May 30, when a title search company reached out to ask if any of the residents had interest in buying back the property. “I was shocked to learn this could happen, and am deeply troubled that anyone would choose to take advantage of the situation and buy our street and sidewalks,” said one unnamed homeowner. Residents are now angry that the city did not notify residents of Presidio Terrace about the sale — but Treasurer-Tax Collector Jose Cisneros’ office says everything was done lawfully. “Ninety-nine percent of property owners in San Francisco know what they need to do, and they pay their taxes on time — and they keep their mailing address up to date,” spokeswoman Amanda Fried said. The homeowners have petitioned the Board of Supervisors for a hearing to undo the tax sale, which it has scheduled for October. They also sued the couple and the city, in an attempt to stop the couple from selling the road while the city appeal is still being reviewed. Residents told the San Francisco Chronicle that they believe Lam and Cheng suggested charging rent for parking to push the homeowners association to buy the road back at a high price. But Lam, an engineer in Silicon Valley who was born in Hong Kong, said she wanted to buy the property because she’s “a first-generation immigrant, and the first time I came to San Francisco I fell in love with the city.” “I really just wanted to own something in San Francisco,” she added, “because of my affinity for the city.” source

August 7, 2017 by
For many Americans, the experience of driving on a coastal highway like Interstate 5 in California can be a nightmare of dodging massive trucks hauling cargo between US cities. In Europe, not so much. That’s because for decades, European nations have turned to the sea rather than the road to transport goods across the continent. In fact, over 40% of Europe’s domestic freight is shipped along so-called motorways of the sea. In the US, a measly 2% of domestic freight distributed among the lower forty-eight states travels by water, even though half the population lives near the coast. One big reason why is an obscure law, enacted right after World War 1, called the Jones Act, which preserves a monopoly for US-built, owned and operated ships to transport goods between US ports. The monopoly was designed to support the American merchant marine. It was thought that allowing foreign vessels to move goods between US ports would hurt American shipbuilding and lead to a decline in ship ownership, putting the country at risk during wartime. It was also designed to ensure that the US had ample ships to conduct international trade. The problem is the legal maneuvering didn’t much protect the US shipbuilding industry. The costs are so prohibitively high, the US builds very few ships, having long ago ceded the industry to Korea, China and Japan. In 2011, there were just five public shipyards in the US and 20 private ones. According to a recent study, there are some 171 privately-owned US flagged ships today. Just 93 of them are Jones Act-eligible. But the Jones Act has had an impact, just not the one that was intended, for it made shipping between US ports extremely expensive. So expensive, in fact, that some Hawaiian ranchers still fly cows to the mainland rather than having them loaded and shipped on boats. Those high costs not only make the goods Americans buy more expensive, they’ve pushed ever more freight on to trucks, significantly increasing highways congestion, intensifying air pollution and further degrading the country’s infrastructure. According to a report from Tufts University, the Jones Act restrictions significantly increase the cost of stuff Americans buy, from Florida oranges, to coal from West Virginia and grain for livestock in California. Largely because of the Jones Act, getting oil from Texas to Boston costs three times as much as getting it from Europe. The U.S. International Trade Commission estimated that repeal or amendment of the Jones Act could save the US between $5 and $15 billion. “The Jones Act remains a fundamental roadblock to large scale coastal shipping between US ports,” said Rockford Weitz, Director of the Fletcher Maritime Studies Program and co-author of the Tufts’ study. According to Weitz, there are significant lost opportunities to building coastal shipping routes in the US that would relieve the roads of thousands of trucks. Trucks account for just 10% of vehicle miles traveled on US highways, but they cause over 75% of the total maintenance costs, according to the Federal Highway Administration. For the residents of Hawaii, Alaska and Puerto Rico, all of which depend heavily on shipping, the Jones Act has been particularly burdensome. Puerto Rico recently declared bankruptcy and the Jones Act has played a role in the island’s inability to meet its debt obligations. In Hawaii, a gallon of milk can cost $8 or more, more than three times what it generally costs on the mainland. There have been several efforts over the years to repeal or amend the Jones Act, mostly to no avail. One fierce critic of the act is Arizona Sen. John McCain, who has called it “an antiquated law that has for too long hindered free trade, made US industry less competitive and raised prices for American consumers.” Proponents of the Jones Act, including the American Maritime Partnership, a coalition of interests who benefit from the law, say that it preserves jobs and protects national security. The group, which includes various maritime unions like the International Longshore and Warehouse Union, has proven a formidable force in preventing changes to the Jones Act. “The shipyards of America provide an element of our defense industrial base that we would be a much weaker nation without,” said Tom Allegretti, chairman of the American Maritime Partnership. Opponents of the act, like Sen. McCain, suggest that the group is merely being protectionist. “The power of this maritime lobby is as powerful as anybody or any organization I have run up against in my political career,” said Sen. McCain after his 2014 effort to repeal the act was voted down. But let’s get back to traffic. American commuters spend an extra 6.9 billion hours and purchase an extra 3.1 billion gallons of fuel every year because of traffic congestion. Along the country’s coastal highways like the I-95, I-5, and I-10, the average commuter spends more than 50 hours a year in traffic. Meanwhile, the country’s current infrastructure can barely handle the traffic (both freight and passenger) plying the roads. Roads and bridges groan and crumble beneath the ever-growing burden put on them to haul goods and people up and down the coastal highways. The American Society of Civil Engineers 2017 Report Card said that the nation’s infrastructure, consisting of its roads, dams, airports and water and electrical systems, needs $4.6 trillion of investment to bring it up to twenty-first century standards. They gave the current state of the country’s infrastructure a D+. According to the Tufts study, many of the coastal routes hit hardest by traffic congestion could be circumvented by ships. Shipping is vastly more efficient, safer and less polluting than transport by trucks. According to Weitz, a total repeal of the Jones Act is unnecessary, and, given the power of the various supporters of the act, not politically viable currently. But a single amendment allowing American companies to purchase ships abroad could have a significant impact. There are no similar restrictions on any other form of transportation. Trucks and planes that carry cargo are regularly purchased from other countries. Moving trucks on to the ocean is not a panacea that will solve all of the US’s traffic woes, says Weitz. But the extent to which it can get a significant portion of them off the coastal highway routes, he says, could make a big difference. source

August 6, 2017 by
Mueller’s Russia probe is taking a very hard look at the former Trump official. Michael Flynn, Donald Trump's disgraced national security adviser, is under even deeper scrutiny from the intensifying Russia investigation than we thought. According to a report by the New York Times, special counsel Robert Mueller’s probe into potential collusion between the Trump campaign and Russia has requested records on Flynn, who was an adviser to Trump’s campaign before his brief stint in the national security post, from the White House. That’s the first known request so far for White House records in the investigation. Investigators have also been questioning many potential witnesses about whether Flynn was secretly paid by the Turkish government in the final months of Trump’s presidential campaign. Mueller’s investigation is closely examining the transaction history of the consultancy that Flynn founded, Flynn Intel Group. They appear to be looking into many different transactions tied to the group, but the biggest one relates to a communications campaign they carried out in 2016 targeting a Turkish cleric and intellectual, Fethullah Gulen, an opponent of the current Turkish government. Flynn’s group was paid $530,000 to carry out the campaign, but the big controversy swirls around who actually paid that sum of money. Mueller’s investigations are trying to determine if the Turkish government was the true source of funds, hiding behind Ekim Alptekin, a Turkish businessman who the firm was formally representing in the communications campaign. One big question is whether Flynn’s group was trying to conceal where the money actually came from and paid Alptekin to help, according to the Times report. If Flynn’s firm did in fact hide the source of funding and paid middlemen to help cover the tracks, it would open Flynn up to a variety of criminal charges — including fraud. That’s a big deal, because it expands the already substantial list of things that could open Flynn up to criminal charges. Moving beyond FARA In public discussions over Flynn’s work on behalf of Turkish interests, most of it has focused on his failure to register as a foreign agent. In the US, private citizens have freedom to work on behalf of foreign governments or foreign entities affiliated with the government — but they have to register with the US to disclose that they’re doing so to comply with the Foreign Agents Registration Act (FARA). A failure to register is a felony offense. Even though Flynn’s work on the Turkish campaign dates back to 2016, Flynn only registered retroactively as a foreign agent in March. FARA is typically lightly enforced — the Justice Department tends to bug violators to comply with it rather than taking them to court. But it is a felony if registration is violated intentionally, and it can be punished with prison time. “It’s not something that the government generally tries to criminally enforce, but they could,” Ryan Goodman, an NYU law professor and former senior Pentagon lawyer, told me in an interview in April. But now it seems that Flynn is being investigated for hiding the true origins of payments for his lobbying and funneling the money through a third party. And that’s just the tip of the iceberg. Mueller’s investigation is also looking into whether Flynn misled FBI agents about the nature of his discussions with the Russian ambassador to the US in December. It is illegal to lie to the FBI, and federal prosecutors routinely bring charges in such cases. Some other issues that Mueller’s team is looking into with its interviews of potential witnesses, per the Times report: Flynn’s speaking engagements for Russian companies which he failed to reveal in financial disclosure forms in potential violation of the law Work that his company May have done with the Japanese government, among other clients The relationship Flynn has with the White Canvas Group, a data-mining company founded by a friend of Flynn that was paid $200,000 by the Trump presidential campaign “for unspecified services.” The sheer volume of issues that Flynn and his firm are being scrutinized for can be difficult to follow. But what this line of inquiry tells us is that Mueller takes Flynn’s past actions very seriously, and that he’s seeking real evidence of potential crimes. source Read More: What we know ― and what we don’t ― about Mueller’s grand jury What the Trump-Russia Grand Jury Means

August 6, 2017 by
This is the age of the plea bargain—and millions of Americans are suffering the consequences. It had been a long night for Shanta Sweatt. After working a 16-hour shift cleaning the Tennessee Performing Arts Center, in Nashville, and then catching the 11:15 bus to her apartment, she just wanted to take a shower and go to sleep. Instead, she wound up having a fight with the man she refers to as her “so-called boyfriend.” He was a high-school classmate who had recently ended up on the street, so Sweatt had let him move in, under the proviso that he not do drugs in the apartment. Sweatt has a soft spot for people in trouble. Over the years, she had taken in many of her two sons’ friends, one of whom who had been living with them since his early teens. Shanta Sweatt (left) and her attorney, the public defender Ember Eyster, in Eyster's Nashville office When Sweatt got home that night, early in November of last year, she realized that her boyfriend had been smoking marijuana, probably in front of the kids. She was furious, words were exchanged, and he left. Sweatt finally crawled into bed after midnight, only to be awakened at about 8:30 in the morning by an insistent knock at the door. She assumed that her boyfriend was coming to get his stuff and get out of her life. When she opened the door, police officers filled the frame, and more were waiting at her back door. She could see that squad cars were swarming the parking lot. “There were 12 to 15 cars,” she told me. “For us.” An officer asked whether they could enter. As a resident of public housing, she wasn’t sure whether she had the right to say no. (She did.) But she was certain that if she refused them, they would come back. She had nothing to hide, so she let them in. “I didn’t get smart or give them a rough time,” she said. “I cooperated.” Sweatt, who is black, didn’t know what had led the police to her door. Their report says a complaint had been made about drug dealing from the apartment. After entering, they began systematically searching her apartment. One officer yanked open a junk drawer in her bedroom dresser, and inside he found small baggies of marijuana, containing a total of about 25 grams—a weight equivalent to about six packets of sugar. There was also marijuana paraphernalia in the apartment. When the officer showed the baggies to her, Sweatt immediately knew they had to belong to her boyfriend, who—in addition to having just been smoking in her home—had past drug convictions. Sweatt, 36 years old, left high school in 11th grade, but she has the kind of knowledge of the law that accrues to observant residents of James A. Cayce Homes, a housing project in East Nashville. “I’m the lease owner,” she told me. “Whatever was there, I would get blamed.” It seemed useless to her to say that the drugs must have belonged to her absent boyfriend, who had a common name and no fixed address. She believed that this would result in the police pinning the crime on her sons. Her 17-year-old was at school, but her 18-year-old, who worked on the cleaning crew with her, was home, along with the friend of his who lived with them. Sweatt told me, “I’ve seen that where I lived: The parents said no, so everyone in the house gets charged. I’m not going to let my children go down for someone else’s mistake. A parent should take ownership of what happens in the house.” So she made a quick and consequential decision. To protect her sons, she told the police that the marijuana belonged to her. “I said it was mine, and me and my homegirls were going on vacation to California. I said we were going to take the marijuana with us—I heard it was legal there—and we were going to smoke for a week or two, then come back to normal life.” Sweatt told me this two months after her arrest. She and I were sitting in a conference room at the Metropolitan Public Defender’s Office, in downtown Nashville. She was dressed for work in a black sweatshirt, sweatpants, and sneakers. A large ring of keys attached to her belt bespoke her responsibilities as a janitorial supervisor at the arts center, just a few blocks away. I asked how she had come up with such a specific story on the spot. “It’s a dream,” she said. “I heard California is more lively, more fun, than Nashville. The beaches are pretty. The palm trees.” For a moment she looked as if she could actually see the surf. She was born and raised in East Nashville and has spent almost her entire life within the same few square miles. She had no plans to vacation in California, or anywhere else. “All I do is work and take care of my sons,” she said. The police seemed to believe her story (the arrest warrant noted her upcoming trip) and drove her downtown, where they put her in a holding room. By 1 o’clock that afternoon, her bail had been set at $11,500. To be released, she needed to get $1,150 to a bail bondsman. She contacted a friend, and they each paid half. (“That’s gone,” she says.) She assumed she’d be out in time to get to work that evening, but the money didn’t clear until almost nine, minutes before she was to be sent to jail in shackles. A court date was set for January. Sweatt was facing serious charges with serious consequences, and she was advised to get an attorney. The fallout began even before the court rendered judgment in her case. Under the rules of the housing agency, her arrest prompted her eviction, which scattered her family. Sweatt moved into a cheap motel, and her sons moved in with her mother, although she still managed to see them every day. She tried to get enough money together to hire what she calls “a regular lawyer,” meaning a private attorney, but failed. So in January she turned to the public defender’s office—a choice that many people in her situation make reluctantly. That’s because of the common misperception, I was told by Dawn Deaner, the head of the office, that public defenders are nothing more than “public pretenders” who are “paid to plead [their clients] guilty.” Sweatt’s case was assigned to a lawyer named Ember Eyster. At their first meeting, Sweatt felt reassured. As she put it to me, “Ember wears a dress that says, I’m going to take you down!” During their 75-minute discussion, Eyster asked Sweatt what her goals were, and Sweatt responded with a big one: no incarceration. She couldn’t bear the idea of being away from her boys. At Eyster’s request, Sweatt gathered her time sheets from work and dropped them off at Eyster’s office. Eyster planned to use them as evidence that Sweatt was too busy mopping the floors at the arts center day and night to be a drug trafficker. The next time Eyster and Sweatt saw each other was two weeks later, in court. Sweatt had been charged with a Class D felony, which carried a two-to-12-year prison sentence, and a misdemeanor related to the paraphernalia. Exactly what punishment she would face depended largely on how the district attorney’s office weighed several factors. First, there was her confession. Second, there was the police account of the circumstances of the arrest. Third, there was the fact that she lived within 1,000 feet of an elementary school, which meant it was possible that the charges against her would be “enhanced.” Finally, there was the fact that she already had a criminal history. In years past, she had pleaded guilty to several minor misdemeanors (most for driving with a suspended license) and one felony. The felony conviction resulted from her involvement in a 2001 robbery at a Jack in the Box. As Sweatt tells it, friends had discussed committing a robbery at the restaurant, where she worked, and then surprised her by actually carrying one out. She was arrested and pleaded guilty to a charge of “facilitation,” and in exchange got three years of probation. “I have never gotten into trouble since,” she told me, “except for driving without a license.” She now relies on the bus. Eyster believed that Sweatt was innocent of the drug charges against her. “This is a hardworking woman who lived in a heavily policed community for 10 years,” she told me. “If she were a drug dealer, she would have already been evicted. She doesn’t have a history of drug use.” But the idea of taking this case to trial was a nonstarter. The best path forward, Eyster decided, was to humanize Sweatt to the prosecutor—hence those time sheets—and then try to negotiate a plea bargain. In exchange for a guilty plea, the prosecutor might not recommend a prison sentence. The strategy worked. The prosecutor reduced the charge from a felony to a Class A misdemeanor and offered Sweatt a six-month suspended sentence (meaning she wouldn’t have to serve any of it) with no probation. Her paraphernalia charge was dismissed, and her conviction would result in a fine and fees that totaled $1,396.15. Upon hearing the news, Sweatt embraced Eyster and wept with joy. Then she stood before the judge and pleaded guilty to a crime she says she did not commit. This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ” Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial is avoided, and everybody benefits. But in recent decades, American legislators have criminalized so many behaviors that police are arresting millions of people annually—almost 11 million in 2015, the most recent year for which figures are available. Taking to trial even a significant proportion of those who are charged would grind proceedings to a halt. According to Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law School, the criminal-justice system has become a “capacious, onerous machinery that sweeps everyone in,” and plea bargains, with their swift finality, are what keep that machinery running smoothly. Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration. Shanta Sweatt and her two sons in front of the James A. Cayce Homes, where she was arrested As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.” According to the Prison Policy Initiative, 630,000 people are in jail on any given day, and 443,000 of them—70 percent—are in pretrial detention. Many of these defendants are facing minor charges that would not mandate further incarceration, but they lack the resources to make bail and secure their freedom. Some therefore feel compelled to take whatever deal the prosecutor offers, even if they are innocent. Writing in 2016 in the William & Mary Law Review, Donald Dripps, a professor at the University of San Diego School of Law, illustrated the capricious and coercive nature of plea bargains. Dripps cited the case of Terrance Graham, a black 16-year-old who, in 2003, attempted to rob a restaurant with some friends. The prosecutor charged Graham as an adult, and he faced a life sentence without the possibility of parole at trial. The prosecutor offered Graham a great deal in exchange for a guilty plea: one year in jail and two more years of probation. Graham took the deal. But he was later accused of participating in another robbery and violated his probation—at which point the judge imposed the life sentence. What’s startling about this case, Dripps noted, is that Graham faced two radically different punishments for the same crime: either be put away for life or spend minimal time behind bars in exchange for a guilty plea. In 2010, the Supreme Court ruled, in Graham v. Florida, that the punishment Graham faced at trial was so cruel and unusual as to be unconstitutional. The Court found that a juvenile who did not commit homicide cannot face life without parole. Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me. The result, according to the late Harvard law professor William J. Stuntz, who wrote extensively about the history of plea bargains in The Collapse of American Criminal Justice (2011), is a system that has become “the harshest in the history of democratic government.” To learn more about how plea bargaining works in America today, I went to Nashville, where Shanta Sweatt entered her plea. A blue county in a red state, Davidson County, which includes Nashville, has a population of about 680,000. According to District Attorney Glenn Funk, Nashville–Davidson County handles about 100,000 criminal cases a year, 70 percent of which are misdemeanors, 30 percent felonies. Last year, attorneys in the public defender’s office dealt with 20,000 misdemeanors and 4,900 felony cases. Of all the defendants processed in Nashville–Davidson County last year, only 86 had their cases resolved at trial. During my week in Nashville, I attended hearings at the courthouse on a full range of cases. I sat in on the plea discussions between an assistant district attorney and two public defenders. I observed a public defender in conversation with jailed defendants facing felony charges. I saw justice meted out courtroom by courtroom, often determined in part by the attitude, even the mood, of the prosecutor. My experience may not have been representative, but over the course of five days, I saw few defendants who had harmed someone else. Those who were facing felony charges had been arrested for drug offenses; some were clearly addicts with mental-health problems. I started with the misdemeanor-citation docket, which covers the lowest-level offenses. The defendants on the courtroom benches were white, black, and Latino. Sartorial guidelines were posted on the doors: no “see-through blouses,” no “exposed underwear,” no “sagging pants.” Ember Eyster, Shanta Sweatt’s attorney, was at the courthouse, but very few of the defendants in court that day had requested the services of a public defender or were accompanied by a lawyer. Misdemeanors are lesser offenses than felonies and are supposed to result in limited penalties. In Tennessee, Class A misdemeanors are sometimes referred to as 1129s: convictions that carry a maximum sentence of 11 months and 29 days. Many people convicted of misdemeanors are given probation or a suspended sentence or simply “time served”—that is, the amount of time they spent waiting in jail for their case to be heard because they couldn’t make bond. The most-minor offenses can result in being required to take a class or do community service. Getting put through the system often also means accruing fines, fees, and court costs, which in a single case can run to more than $1,000. The punishments are not designed to be severe, or to create long-lasting consequences. But for many people they do. Nashville–Davidson County’s courthouse, in downtown Nashville Millions of people each year are now processed for misdemeanors. In a 2009 report titled “Minor Crimes, Massive Waste,” the National Association of Criminal Defense Lawyers described a system characterized by “the ardent enforcement of crimes that were once simply deemed undesirable behavior and punished by societal means or a civil infraction punishable by a fine.” In Nashville, I was struck by how many people were in court because they had been picked up for driving with a suspended license. It’s a common practice, I learned, for states to suspend the licenses of people who have failed to pay court costs, traffic fines, or child support. In 2011, for example, Tennessee passed a law requiring the suspension of licenses for nonpayment of certain financial obligations. Both Glenn Funk, who must enforce this law, and Dawn Deaner, the head of the public defender’s office, agree that it’s absurd, in part because the scheme is almost perfectly designed to prevent the outcome it seeks. If people stop driving when their licenses are suspended, they may no longer be able to reliably get to work, which means they risk losing their jobs and going deeper into debt. As a result, many people whose licenses have been suspended drive anyway, putting themselves in constant jeopardy of racking up misdemeanor convictions. It is common for defendants charged with such minor infractions to represent themselves, even if they don’t understand the consequences of pleading guilty, and even if there might be some mitigating circumstances that an attorney could argue on their behalf. Plead guilty to enough suspended-license misdemeanors, and a subsequent charge can be a felony. Funk, who was elected in 2014, has stopped routinely jailing defendants arrested for driving with a suspended license. “Most of the time, driver’s licenses are revoked because of poverty,” he told me. “I want people to have a license. It gives them ownership in society.” Deaner told me that about two-thirds of the people listed on the citation docket are on there because of a driver’s-license violation. And once their names are on the docket, the system strongly encourages them to plead guilty. “It’s a hamster wheel of bureaucracy,” she said, “that does no one any good.” Plea bargains didn’t exist in colonial America. Law books, lawyers, and prosecutors were rare. Most judges had little or no legal training, and victims ran their own cases (with the self-evident exception of homicides). Trials were brief, and people generally knew one another. By the 19th century, however, our modern criminal-justice system was coming into its own: Professional prosecutors emerged, more defendants hired lawyers to represent them, and the courts developed more-formal rules for evidence. Trials went from taking minutes or hours to lasting days. Calendars became clogged, which gave judges an incentive to start accepting pleas. “Suddenly, everybody operating inside the system is better off if you have these pleas,” Penn’s Stephanos Bibas told me. The advantages of plea bargains became even clearer in the latter part of the 20th century, after the Supreme Court, under Chief Justice Earl Warren, issued a series of decisions, between 1953 and 1969, that established robust protections for criminal defendants. These included the landmark Gideon v. Wainwright and Miranda v. Arizona decisions, the former of which guaranteed the Sixth Amendment right to counsel in felony cases (since expanded to some misdemeanor cases), and the latter of which required that police inform those in their custody of the right to counsel and against self-incrimination. The Court’s rulings had the inevitable effect of making trials lengthier and more burdensome, so prosecutors began turning more frequently to plea bargains. Before the 1960s, according to William J. Stuntz, between one-fourth and one-third of state felony charges led to a trial. Today the figure is one-twentieth. The legal system provides few rules and protections for those who take a deal. In what has been described as one of the Court’s earliest plea-bargain decisions, Brady v. United States (1970), the justices found that guilty pleas were acceptable as long as certain conditions were met, among them the following: Defendants had to have competent counsel; they had to face no threats, misrepresentations, or improper promises; and they had to be able to make their plea “intelligently.” This seemed eminently fair. But crime had already started to increase sharply. The rise provoked a get-tough response from police, prosecutors, and legislators. As the rate of violent crime continued to accelerate, fueled in part by the crack epidemic that started in the ’80s, the response got even tougher. By the 1990s, the U.S. had entered what Donald Dripps calls “a steroid era in criminal justice,” which continued even though violent crime peaked by 1992 and began its now-historic decline. In the late 20th century, legislators passed mandatory-minimum-sentence and “three strikes” laws, which gave prosecutors an effective bludgeon they could use to induce plea bargains. (Some “three strikes” laws result in life imprisonment for a third felony; hundreds of people in California received this punishment for shoplifting. California reformed its three-strikes legislation in 2012 to impose such punishments only for serious or violent felonies.) The growth of the system took on a life of its own. “No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?” One morning in Nashville, I sat at the prosecutor’s table with Emily Todoran, an assistant district attorney, and Ryann Casey and Megan Geer, two young public defenders. (Geer has since left for a private criminal-defense firm.) Before us was a two-inch stack of paperwork that included police reports on everyone who had been picked up the night before, for a variety of misdemeanor violations. None of those arrested had made bond (“Basically, it’s all homeless offenses,” Geer said), so everyone whose case was being assessed was waiting in jail. Police officers have wide discretion in deciding whether a person is breaking the law, and they sometimes arrest people for such offenses as sleeping in public and sitting too long on a bench. One case involved a woman whose crime seemed to have been, in the words of the officer who filed the report, “walking down the road around 1:30 a.m.” with “no legitimate reason.” Casey told me before this meeting that she hoped to get all such cases dismissed. “Walking down the street!” she said. “Imagine if it was you.” Ember Eyster told me it’s sometimes possible to get misdemeanor cases dismissed with a bit of investigation. Maybe a trespassing charge doesn’t hold up, for example, because the property owner hadn’t posted a no trespassing sign. But this takes time, and clients who can’t make bond have to sit in jail until the job is done. It’s a choice few are willing to make for the small chance of avoiding a conviction. Many clients tell Eyster as soon as they meet her that they want to plead guilty and get time served. The choice makes sense under the circumstances. But anybody who makes it is incurring a debt to society that’s hard, sometimes impossible, to repay. Those with a conviction in the United States can be denied public housing, professional licenses, and student loans. Many employers ask whether job applicants have been convicted of a crime, and in our zero-tolerance, zero-risk society, it’s rational to avoid those who have. People with a misdemeanor conviction who get picked up for another minor offense are more likely to face subsequent conviction—and that, according to Issa Kohler-Hausmann, an associate professor of law and sociology at Yale, is part of a deliberate strategy. Kohler-Hausmann made this case in a provocative 2014 Stanford Law Review article, “Managerial Justice and Mass Misdemeanors,” about the rise of misdemeanor arrests in New York City, which occurred even as felony arrests fell. Authorities, she argued, tend to pay “little attention” to assessing “guilt in individual cases.” Instead, they use a policy of “mass misdemeanors” to manage people who live in “neighborhoods with high crime rates and high minority populations.” These defendants, she wrote, are moved through the criminal-justice system with little opportunity to make a case for themselves. They are simply being processed, and the “mode of processing cases” is plea bargaining. (This year, New York City settled a federal class-action lawsuit against it for issuing hundreds of thousands of unjustified criminal summonses.) Sitting at the prosecutor’s table that morning, I watched Todoran, Casey, and Geer read from the police reports and make deals. Such a ritual takes place, in one form or another, in the courts of each of the country’s more than 3,000 counties, which make up what the Fordham University law professor John Pfaff has described in his book Locked In as “a vast patchwork of systems that vary in almost every conceivable way.” We know little about what happens in these negotiations. Trials leave copious records, but many plea bargains leave little written trace. Instead, they are sometimes worked out in hurried hallway conversations—or, as I witnessed, in brief courtroom conferences. casey: He was lying across a sidewalk over a vent, because it was cold. todoran: Dismiss it. You’ve got to sleep somewhere. casey: This one is for standing in front of a liquor store. todoran: Dismiss. For so many of these things, a few hours in jail is punishment enough. geer: This defendant was found in a car with marijuana and 0.7 grams of crack. todoran: I guess we’ll do time served. casey: This man was at Tiger Mart. He was warned to leave earlier, and then came back. todoran: Thirty days suspended and stay away from Tiger Mart. casey: This case, an officer heard him yelling and cussing and arrested him by the rescue mission. todoran: Dismiss. geer: This is my favorite—the woman who was walking down the road. todoran: Dismiss. For many of the cases, Todoran was making her decision in less than a minute. I felt I was watching justice dispensed at the pace of speed dating. Critics on the left and the right are coming to agree that our criminal-justice system, now so reliant on plea bargaining, is broken. Among them is Jed S. Rakoff, a United States district judge for the Southern District of New York, who wrote about the abuses of plea bargains in 2014, in The New York Review of Books. “A criminal justice system that is secret and government-dictated,” he wrote, “ultimately invites abuse and even tyranny.” Some critics even argue that the practice should be abolished. That’s what Tim Lynch, the former director of the Project on Criminal Justice at the libertarian Cato Institute, believes. The Framers adopted trials for a reason, he has argued, and replacing them with plea bargains—for convenience, no less—is unconstitutional. But plea bargains aren’t going away, so reformers have practical suggestions for improving them. Bibas wants a “consumer-protection model.” Shoppers, he told me, have more safeguards when making a credit-card purchase than defendants do when pleading guilty. He wants pleas to clearly explain several things: exactly what defendants are pleading to, what obligations (classes, probation) defendants are incurring, what the consequences of their failing to follow through would be, and what potential effects a guilty plea could have on their lives. He has also suggested a “cooling off” period before a defendant takes a plea in serious cases. Stuntz suggested giving those who plead guilty the same protections that are offered in the military system of justice. Before accepting a plea, military judges conduct inquiries to ensure that pleas were not made under duress, and that the facts support them. This, Stuntz argued, would shift some power from prosecutors back to judges and make pleas more legitimate, which in turn would produce “a large social gain.” Ember Eyster believed that Shanta Sweatt was innocent, but the idea of taking her case to trial was a nonstarter No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” Bibas said to me. He’s not alone in asking. Across the country, in red states and blue states, reformist state and district attorneys have recently been elected on platforms of rolling back harsh sentencing, reducing the enforcement of marijuana laws, and knocking down crimes from felonies to misdemeanors. And change is happening. Last year, for example, the New York City Council passed legislation that made offenses such as public drinking and urination civil rather than criminal violations, and thus subject largely to tickets and fines. Paring back our criminal code and eliminating many mandatory minimum sentences will be crucial to reform. In the long-running War on Drugs, the government has regularly prosecuted people for possessing small amounts of illegal substances, or for merely possessing drug paraphernalia. Often, on the basis of no evidence beyond a police officer’s assertion, officials have charged and prosecuted defendants for the more serious crime of “intent to sell.” But during Prohibition, when the manufacture, transport, and sale of alcohol were federal crimes, Americans were not arrested by the millions and incarcerated for drinking. And they certainly didn’t plead guilty to possessing martini glasses and other drinking paraphernalia.   To break the cycle, the United States will need to address the disparity in funding for the two sides of its legal system. According to Fordham’s John Pfaff, of the $200 billion spent on all criminal-justice activities by state and local governments in 2008, only 2 percent went to indigent defense. But the system needs more than just money, says Jonathan Rapping, who in 2014 won a MacArthur genius grant for his work as the founder of Gideon’s Promise, which trains and supports public defenders around the country—including those in Nashville. What’s necessary, Rapping argues, is a new mind-set. Defenders need to push back against the assumption that they will instantly plead out virtually every client, rubber-stamping the prosecutor’s offer. Ember Eyster did ultimately negotiate a plea bargain for Shanta Sweatt, but in doing so she pushed back, using all the tools at her disposal to ensure that Sweatt was not incarcerated. The U.S. should also reform the bail system. We are holding people in jail simply because they lack the funds to secure their own release. The public-housing complex from which Shanta Sweatt was evicted after her arrest. She now lives in a motel, apart from her sons. Making these sorts of changes would allow authorities at the federal, state, and local levels to allocate more resources to the underlying social problems that drive so many arrests. But reform will not be easy. Even though crime rates remain near historic lows nationally, Donald Trump’s administration has professed a desire to return to the days of “law and order.” U.S. Attorney General Jeff Sessions has announced, for instance, that he wants federal prosecutors to use maximum possible charges for crimes and to enforce mandatory minimums, which would result in harsh plea bargains. Almost all crime is handled not by the federal government but by the states, but with both the president and the country’s highest law-enforcement official inflaming public fears, advocates for change worry about the fate of the reform efforts set in motion during Barack Obama’s administration. The United States is experiencing a criminal-justice crisis, just not the one the Trump administration talks about. By accepting the criminalization of everything, the bloat of the criminal-justice system, and the rise of the plea bargain, the country has guaranteed that millions of citizens will not have a fair shot at leading ordinary lives. Before I left Nashville, I visited Shanta Sweatt at the Tennessee Performing Arts Center. It’s an enormous building of glass and concrete with multiple stages. Sweatt gave me a tour that started in the basement. As we made our way to the upper floors and the theaters, she gestured toward the banks of restrooms that she has to keep sparkling. “Thirty-eight stalls for women,” she said. “Thirty-eight stalls for men.” Sweatt is still struggling with the consequences of her arrest. “If it weren’t for my boys,” she told me, “I would have given up a long time ago.” At the time of her arrest, she told her employers about her situation, and they rallied to support her. “They stood behind me. They said, ‘I got prayers for you.’ ” Because she wasn’t incarcerated, Sweatt was able to keep her job, and her dream is that one day she might be able to buy a house, which would allow her to live together again with her sons. In her mind’s eye, the house has three bedrooms, two bathrooms, and a yard, and it promises her and her family privacy and freedom. “Police mess with you in the projects,” she said. “You get off the bus, they follow you. They don’t mess with you in a house. I want to live like an average Joe.” source  

August 5, 2017 by
Martin Shkreli, 34, has confidently courted controversy in recent years, bulldozing his way into Wall Street and the drug industry, raising the price of a lifesaving drug by 5,000 percent overnight, boasting that he would outwit prosecutors in his federal fraud case, and live-streaming and tweeting throughout his five-week trial. But on Friday, after five days of deliberations, jurors convicted him on three counts of fraud in federal court, and he now faces up to 20 years in prison on each of the first two counts, and up to five years on the final count. Mr. Shkreli looked shaken as the judge read the verdict. But not long after, he appeared outside of court and returned to form, saying that he was “delighted, in many ways,” with the verdict. “This was a witch hunt of epic proportions, and maybe they found one or two broomsticks,” he said. Later in the afternoon, he was live-streaming once more, sipping beer and joking about prison life from his Manhattan apartment. At the trial in the Federal District Court in Brooklyn, Mr. Shkreli was accused of securities and wire fraud related to two hedge funds he ran, MSMB Capital and MSMB Healthcare. Prosecutors charged he illegally used a pharmaceutical company he founded, Retrophin, to repay defrauded MSMB investors. And they said he secretly controlled a huge number of Retrophin shares. He never seemed to take his case seriously, meeting with federal authorities without a lawyer, making faces during testimony, calling the prosecution “junior varsity” and reading a book during final statements. Jurors convicted Mr. Shkreli of three of the eight counts: securities fraud in connection with his hedge fund MSMB Capital; securities fraud in connection with MSMB Healthcare; and conspiracy to commit securities fraud related to the Retrophin stock scheme, in which he tried to quietly control a huge portion of Retrophin stock. He was acquitted of counts one and two, conspiracy to commit securities fraud and conspiracy to commit wire fraud regarding MSMB Capital; counts four and five, the same charges with MSMB Healthcare; and count seven, conspiracy to commit wire fraud with regard to defrauding Retrophin by using funds from it to pay MSMB investors. Count seven carried the most weight for sentencing, charging Mr. Shkreli with defrauding Retrophin by creating sham consulting agreements and unauthorized settlement agreements to pay back MSMB investors. It was associated with the biggest loss, which judges take into account when deciding sentences in fraud cases, said Benjamin Brafman, Mr. Shkreli’s lawyer. As Judge Kiyo A. Matsumoto read the verdict, Mr. Shkreli, wearing a black polo shirt and khakis, sat with his arms crossed. He showed outward relief when Judge Matsumoto said he was not guilty on count seven, mouthing “Yes” and patting Mr. Brafman on the back. When she said he was guilty of count eight, the Retrophin securities-fraud conspiracy, he hung his head. After the verdict was read, he gathered in a circle with his lawyers, looking a little shaken, then pulled on a hoodie. By the time he got outside court, where he gave his statements, he was smiling and speaking smoothly. Bridget M. Rohde, the acting United States attorney for the Eastern District of New York, the federal prosecutors’ office in Brooklyn, said she was gratified by the verdict. “Our work is not done: Mr. Shkreli remains to be sentenced, and there’s a co-defendant in the case,” she said, referring to Evan Greebel, Mr. Shkreli’s onetime lawyer, who is scheduled to be tried in the fall. A sentencing date was not set; Judge Matsumoto said she would wait for submissions from both sides on how much money was lost. She set a fall date for those submissions. Mr. Brafman said the defense might ask for no prison time. Martin Shkreli, center, with his lawyers Marc Agnifilo, left, and Benjamin Brafman, right, after the verdict in his fraud trial in Brooklyn on Friday. Jurors, who deliberated for five days and sent only one substantive note in that time, were never deadlocked, according to one juror, who spoke after the verdict on condition of anonymity because he said he did not want to be associated by name with the case. He described the deliberations as methodical and logical and said the jurors had focused on whether Mr. Shkreli had intended to harm investors who gave him money. The jury voted to convict on counts in which they saw fraudulent intent to take money, the juror said. At Mr. Shkreli’s trial, prosecutors, defense lawyers and witnesses provided sharply different takes on the defendant as they described how he rose from an ambitious young hedge fund manager to a notorious pharmaceutical executive. The prosecution brought forth an “avalanche” of evidence, as the prosecutor Jacquelyn Kasulis put it in her rebuttal argument, that Mr. Shkreli illegally used Retrophin to repay the defrauded MSMB investors. The evidence included a threatening letter he sent to the wife of a former employee; statements he sent to MSMB investors showing great returns at the same time he had no money in fund accounts; three versions of a backdated agreement to make it look as if MSMB Capital had invested in Retrophin when it had not; and claims about assets under management that were wildly out of line with his actual fund size. “It’s time for Martin Shkreli to be held accountable,” she said. His lawyers focused on the fact that his investors ultimately made back much more than their initial investments. They said that was proof that Mr. Shkreli had never intended to commit fraud. Instead, they said, he worked hard to get Retrophin off the ground so he could reimburse MSMB investors. “He did it, and it worked, and they got paid,” Mr. Brafman said in his closing statement. “When they got the financing, they started to pay these people, not to loot Retrophin.” However, prosecutors said that paying Mr. Shkreli’s old investors was not the responsibility of Retrophin, a public company, and that Mr. Shkreli had misled his MSMB investors. “Lying to people to get them to invest with you is fraud,” Ms. Kasulis said in her final statement. Mr. Shkreli is the child of Albanian immigrants. He was raised in Brooklyn and attended Hunter College High School, one of the city’s elite public schools. He went to Baruch, one of New York’s city colleges, and landed an internship at Cramer Berkowitz, going on to other money-management jobs. As he recruited investors for his own funds, MSMB Capital and MSMB Healthcare, he was cunning at times, almost a shape-shifter. He told an investor who had not graduated from college that he had not finished college either, according to testimony. To an established Texas investor, he said he had graduated young from Columbia. He told another investor, in an email chain about Steve Jobs, a college dropout, that he had dropped out of Columbia. His lawyers painted him as an oddball who did not brush his teeth and slept in a sleeping bag at his office. Before the trial, Mr. Shkreli was perhaps best known for increasing the price on the drug Daraprim, which treats a parasitic infection, to $750 a tablet from $13.50, when he was the chief executive of Turing Pharmaceuticals in 2015. The public and politicians vilified him for the price increase, and Mr. Shkreli responded by buying another drug and saying he would raise the price on that one, too. Documents entered into evidence throughout the trial showed Mr. Shkreli as devil-may-care. At one point, Mr. Greebel, Mr. Shkreli’s co-defendant and former lawyer, wanted to have a phone call with him about an issue involving lawyer-client privilege, and Mr. Shkreli responded, “Not available by phone ever Sorry.” During his postverdict live-stream, Mr. Shkreli, sipping from a bottle of India pale ale, speculated that his sentence would be “close to nil” and said that he was not anticipating spending time in a maximum security facility, adding “this is not ‘Oz’ or ‘The Wire.’” Rather, he said, he imagined serving in what he termed “Club Fed,” playing basketball, tennis and Xbox, and resurfacing “back out on these streets very quickly.” source

August 2, 2017 by
Prior to the 1970s, a person’s faith had little impact on the way they voted. Make no mistake, however, there have always been those who believed religion should play a larger role in American politics. Colonies were often ruled by strict religious observance prior to the Declaration of Independence. In fact, it could be said, the reason our country implemented the separation of church and state was because of the conflict and dissention caused by the rigorous and divisive theology within the colonies. Fundamentalist Christian “religious freedom” laws allow for sweeping discrimination and removal of federal protections for people who believe differently. Why are Americans allowing this to happen? In New England for example, “the civil government dealt harshly with religious dissenters…whipping Baptists or cropping the ears of Quakers for their determined efforts to proselytize.” A religious revival came through the colonies between the 1730s and 1740s, called the Great Awakening. This movement “challenged the clerical elite and colonial establishment” by appealing to the poor and uneducated. It focused more on an emotional relationship with God than one based in reasoning. The Great Awakening was the basis for what would become the current fundamentalist, evangelical Christian faith. Historian Patricia Bonomi noted that rationalism, nevertheless, remained the predominant religious underpinning and “was often present in the religion of gentlemen leaders by the late colonial period.” As American civilization progressed in scientific discoveries, modernists seamlessly wove their understanding of God and their holy texts together. Fundamentalists, on the other hand, found their beliefs contentiously out of step with rationalism and modernization. Until the 1970s, religious fundamentalists primarily stayed away from politics, believing politics distracted them from their calling to bring people to Christ and deliver the message of salvation. But through the charismatic leadership of people like Jerry Falwell, Pat Robertson, and James Dobson, and savvy political strategists like Paul Weyrich, Christian fundamentalist extremism found a new platform in American politics, unlike any time in history. Most of the popular Republican candidates in the 2016 presidential election claimed God told them to run for president. What they share in common is a brand of Christianity, which is historically racist, homophobic, xenophobic, dangerously nationalistic, and exclusive. It is a form of Christian Sharia law, which forces those who believe differently into strict adherence to their version of “religious freedom.” Fundamentalist Christian “religious freedom” laws allow for sweeping discrimination and removal of federal protections for people who believe differently. For example, Mississippi passed the “Protecting Freedom of Conscience From Government Discrimination Act” in 2016, which said public businesses, social workers, and even public employees cannot be punished for denying services to people who believe that sex should only be reserved between married people in opposite sex relationships. Additionally, if someone’s religious belief is different than those of an adoption agency, the agency can refuse the adoption of a child to that person. In many ways, it is stepping hundreds of years backwards in America’s history. The government isn’t doing the punishing, per se, but laws prohibit it from equally protecting citizens. At the beginning of Trump’s presidency, he initiated an executive ordered called “Establishing a Government-Wide Initiative to Respect Religious Freedom.” Most agree the order was little more than a nod to the fundamentalist Christians that helped elect Trump into office, and it has no teeth. However, the order essentially allows discrimination from the highest offices in the country, letting individuals deny health care, education, employment, government grants and even government contracts to people who believe or behave differently. If someone simply claims a strongly held religious belief, they can discriminate for virtually any reason without retribution. The question is, why are Americans allowing this to happen? Surveys show that much of what Christian fundamentalists represent is out of step with what Americans want. Most Americans oppose Trump’s immigration ban. Most Americans support gay marriage. Most Americans support abortion rights. Americans are religiously diverse, with more and more people disassociating with their evangelical roots. Trump’s election to the White House has splintered evangelicals even further, with many recognizing the blatant hypocrisy of Trump’s Christian supporters. The fundamentalist chokehold on American politics seeks to destroy the religious and cultural plurality on which the country, and the Declaration of Independence, was based. These theological divisions – which pit believers against non-believers, and those who believe correctly against those who don’t – are a major contributor to America’s sharply divided politics. When someone believes he or she holds absolute truth, there can be no compromise, no middle ground, and no discussion. Fundamentalism - Christian, Islam, or any other religious ideology - is the antithesis of progression. Fundamentalism’s dangerous anti-science stance threatens the world’s environment, reduces the efficacy of American education, and leaves citizens unprepared for life in a global economy. Fundamentalism is shrouded in ignorance, backed by authoritarianism, and places an enormous amount of trust in individual leaders. To free us of the religious chokehold, citizens must recognize, and actively vote against the powerful political machine of the Fundamentalist Christian right. source