A wrong has been corrected……will any one have to answer for this injustice?


State’s attorney sets aside convictions in rape, murder


Staff Reporters

Last Modified: Sep 10, 2013 05:31PM

Carl Chatman walked out of the Dixon Correction Center Tuesday afternoon and into the arms of his tearful sisters and brother. His sister Dretha Miller threw her arms around his neck and cried, saying, “It’s over.”

Chatman’s siblings­ — Miller and Theresa and Willie Chatman ­— drove to Dixon to meet their brother after the Cook County state’s attorney’s office officially set aside his conviction for a 2002 rape at the Daley Center. State’s Attorney Anita Alvarez — citing “failures of the past” — also set aside the conviction of Lathierial Boyd, sentenced to 82 years in prison for fatally shooting one man and paralyzing another man outside Wrigley Field in 1990.

“Our work as prosecutors is about seeking justice, even if that measure of justice means that we must acknowledge failures of the past,” State’s Attorney Anita Alvarez told reporters at the criminal courthouse at 26th and California.

“Justice was certainly delayed for Mr. Boyd and for Mr. Chatman, but we are hopeful that with today’s actions, it will not be denied,” Alvarez said.

Read More here:


Contributing: Mary Mitchell

Copyright © 2013 — Sun-Times Media, LLC

How long will Miranda last…..

I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

In response to all of this chaos, I’ve drafted a new and improvedMiranda warning.  Granted, this warning would be a bit more cumbersome for police to deliver, and still wouldn’t answer every possible question.  But it would be an improvement.  Here it goes:

“I first have to read you these rights before you tell me your side of the story, okay?  First, you have the right to remain silent.

  1. Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
  2. But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).
  3. On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you.  This is only fair.  Florida v. Powell, 130 S. Ct. 1195 (2010).
  4. If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense.  So, you might want to talk to me now so you don’t look guilty later.  Jenkins v. Anderson, 447 U.S. 231 (1980).
  5. But, anything you say to me can be used against you in court.  (I’m not sure if this includes the things that you say in order to remain silent.)
  6. You have the right to an attorney.
  7. But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it.  Don’t ask me, for example, “Could I get a lawyer?”  This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you.  However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).
  8. If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line.  Then you might be on your own.
  9. And don’t say “I can’t afford a lawyer but is there any way I can get one?”  As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.”  The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?”

Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) as well as articles on criminal and constitutional law, available here.

The Wire…..

Alafair S. Burke (Hofstra University – School of Law) has posted I Got the Shotgun: Reflections on The Wire, Prosecutors and Omar Little (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The Wire is a show about institutions, the people trapped inside of them, and a society made static by their inaction, indifference, and ineptitude. Whether the series was exploring the drug trade, police departments, city hall, unions, or public schools, the individual actors within those systems were depicted as having little control over either the institutions or their individual fates within them. As a result, the constituencies supposedly served by those institutions continually got the shaft.

To say that The Wire is about the tolls of unmitigated capitalism and inflexible bureaucracies is not to say, however, that the show is silent on, or indifferent to, the criminal justice system that encompasses its main characters. I became especially intrigued by an episode in the first season in which police and prosecutors rely on the testimony of Omar Little in a murder trial, despite doubts about Omar’s first-hand knowledge of the crime. This essay is a reflection on the depiction of law enforcement in The Wire, both generally and with respect to the single scene that first made me a Wire addict.

Is he or isn’t he?

Is Steven Slater a criminal?

Slater: Former JetBlue flight attendant leaves jail after posting bail in New York on Aug. 10.

By Erin Murphy
After years of silently suffering claimed professional indignities, JetBlue flight attendant Steven Slater grabbed two beers and slid to freedom. Or so he thought. Less than 24 hours after his headline-making exit, he was in custody on felony charges of reckless endangerment, trespassing and criminal mischief. His next court hearing is scheduled for this month. But of all the conversations inspired by his actions, one is conspicuously absent: Even those who applaud him seem totally unfazed by the fact that he also is being treated as an alleged felon.
For much of American history, criminal law was driven largely by what is known as the “harm principle” — the idea (inherited from John Stuart Mill) that government should interfere with people’s liberty only when necessary to prevent harm to others. But in this day and age, depending on how you look at it, either every act that could conceivably injure another interest now qualifies as criminally harmful, or the criminal law has become completely unmoored from the harm principle itself.

When it comes to the criminal law, the harm principle is an important restraining mechanism: It’s what keeps the government from punishing aimlessly for conduct unlikely to result in any material injury or danger. Even some behaviors that might result in damage — such as school bullying or illegal downloading — might in many cases be more effectively addressed outside of the criminal justice system. Without the harm principle, we end up in a world in which 7-year-olds are reduced to tears by health inspectors shuttering their curbside lemonade stands, preteens get handcuffed for eating french fries on the Metro, or juveniles are treated like sex offenders for exchanging racy text messages.

Society’s ‘cancer’

Such omnivorous criminalization is not good — not for Slater and not for society. It is bad for Slater because, by all accounts, for almost 20 years he was a solid worker, but now he faces time in prison for a “crime” that the vast majority of people find funny and harmless. Fighting criminal charges can easily deplete a defendant’s finances, and a felony conviction could impair his future employability, deny him civil rights such as the ability to vote or serve on a jury, and cut off access to benefits related to health, housing and education. Slater’s dramatic resignation might be Warholian entertainment now, but it will not be as funny in 10 years if he slips from being a productive member of society to an unemployable, alienated individual hardened by time in prison. The district attorney should justify the decision to take that risk, especially because Slater’s employer, JetBlue, recognized the humor of the situation in a casual news release acknowledging that Slater’s actions might ” feed your inner Office Space.”

Cannibalistic criminalization is also bad for the rest of us. Because harm prevention seems an unconvincing justification for this prosecution, perhaps the district attorney is motivated by another philosophy, such as the desire to deter others from engaging in the same kind of behavior. We are, after all, in the midst of an economic crisis, and the very fact that Slater appears to have tapped such a deep vein of resentment might suggest that failure to punish him would invite others to follow suit.

Disgruntled workers have become a familiar motif in the news cycle. Just a week before Slater theatrically bailed out, Omar Thornton killed eight of his co-workers in Connecticut after he was given the choice of quitting or being fired when he was allegedly caught stealing from his workplace. But does anyone really think prosecution of a Steven Slater would have stopped that? Can prosecutors really not tell the difference? If anything, maybe a few more harmless emergency exits would relieve some of the pressure that matures into genuinely horrifying emergencies borne of anger, frustration and aggression.

The cost, in dollars

Perhaps most significantly, Slater is not the only one who pays a price for labeling his actions criminal. Per capita expenditure on the criminal justice system increased more than 300% from 1982 to 2003, from $158 to $638, and total spending has risen fivefold. There has been a 420% increase in spending on police, a 660% increase on spending for corrections and a 503% increase in spending on the judiciary. Today, the criminal justice system is draining our local governments, which fund half of all justice system expenses, to the tune of roughly $110 billion. States and the federal government spend an impressive $70 billion and $35 billion, respectively. Adjusted for inflation, criminal justice spending at the 1982 rate would amount to $66 billion; instead, we spend three times that.

At the same time, cities and localities are hemorrhaging core services — cutting public transportation, street lighting and school funding, not to mention curtailing police services for actual harm-causing offenses such as burglary or theft. Even if there is some merit in punishing Slater criminally, we should remember that every penny spent investigating, prosecuting and supervising him is a penny taken away from investigating, prosecuting and supervising more serious criminals — not to mention funding education, health, housing and other programs that might actually improve the plight of most individuals.

You know the old aphorism: To a man with a hammer, everything looks like a nail. If we are going to start seeing every transgression as a crime, then, especially in this economy, we should remember that the criminal justice system isn’t free.

Erin Murphy is a professor at New York University School of Law.

So says Lord Black….

A must-read take on American justice courtesy of now-free Lord Conrad Black

As detailed in this news report, “media baron Conrad Black, released from jail this month on a two-million-dollar bond, lashed out at the US justice system Saturday in a column written for Toronto’s National Post.” This first-person column is available at this link under the headline “Conrad Black: My prison education,” and here are choice excerpts from this weekend’s must-read:
In my 28 months as a guest of the U.S. government, I often wondered how my time in that role would end. I never expected that I would have to serve the whole term, though I was, and am, psychologically prepared to do so, now that I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years….

t had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.

And I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody.

Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu. America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency.

Make sure you ask the right questions….

The trial court erroneously failed to ask potential jurors if they understood and accepted four basic constitutional guarantees afforded criminal defendants at trial.
The Illinois Appellate Court, 4th District, has reversed the armed robbery conviction of the defendant, Ahmed A. Yusuf. Champaign County Circuit Judge Thomas J. Difanis presided in the trial court.

In October 2007, Yusuf was convicted of armed robbery. The conviction was affirmed in November 2008. The Illinois Supreme Court denied the defendant’s petition for leave to appeal but issued a supervisory order directing the appeals court to vacate its order affirming the conviction and reconsider the case.

On reconsideration, the defendant argued that the procedure used by the trial court during voir dire failed to allow the venire an opportunity to respond to or be questioned about the juror’s understanding of the four basic constitutional guarantees afforded to criminal defendants at trial.

The appeals court cited a 1984 Supreme Court case, People v. Zehr, 103 Ill.2d 472), holding that a trial court erred during voir dire by refusing defense counsel’s request to ask questions about the state’s burden of proof, the defendant’s right not to testify and the presumption of innocence.

The Supreme Court then amended its Rule 431(b) to assure compliance with its decision in Zehr. The rule provides that a trial judge “shall” ask jurors, “individually or in a group,” if they understand and accept the constitutional guarantees. The rule also provides that the court “shall” provide each juror an opportunity to respond to specific questions about the principles.

During the voir dire in this case, the trial court discussed the constitutional principles but didn’t fully comply with Rule 431(b). “While the court advised the venire en masse of the four Zehr principles, it did not pose the specific questions of whether the jurors understood and accepted all four principles during voir dire,” the appeals court said. “As a result, the court … did not follow the mandate of Rule 431(b) and this failure to comply constituted error.”

The appeals court said the jurors in this case were never asked whether they understood and agreed that the defendant was not required to offer any evidence and that his failure to testify could not be held against him. The appeals court said a defendant’s right not to testify is possibly “the most critical guarantee under our criminal process and is vital to the selection of a fair and impartial jury that a juror understand this concept.”

While the trial court in this case advised the venire en masse or the Zehr principles, it didn’t pose specific questions of whether the jurors understood and accepted any of those principles, the appeals court said.

The appeals court said the trial court’s failure to fully comply with the amended version of Rule 431(b) caused a “complete breakdown of the judicial process that undermines this court’s confidence in the jury’s verdict.” The court’s error was so substantial that it affected the fundamental fairness of the proceeding and denied the defendant a substantial right — a fair trial, the appeals court said.

The appeals court reversed the trial court and remanded the case for a new trial.

People v. Ahmed A. Yusuf, No. 4-08-0034. Justice John T. McCullough wrote the court’s opinion with Justice Sue E. Myerscough and James A. Knecht concurring. Released April 13, 2010.

Maybe someone is listening….

PHILADELPHIA — The new district attorney in violence-weary Philadelphia had vowed not to get tough on crime but to get “smart on crime.” This month, R. Seth Williams began to make good on his word, downgrading penalties for possessing small amounts of marijuana from jail time to community service and fines.

It was an easy decision, said Mr. Williams, who took office in January promising changes that would reduce prosecutions but increase the conviction rate. Now he also spends hours each week visiting schools, exhorting students to graduate.

Philadelphia, after being battered for years by the worst sort of superlatives — the highest murder rate, the lowest conviction rate — seems ready to give Mr. Williams and his ideas a chance.

“This is like a breath of fresh air,” said Ellen Greenlee, chief of the city’s public defenders, who described the previous district attorney’s approach to charging suspects as “throw everything against the wall and see what sticks.”

Mr. Williams, the first black district attorney in the history of Pennsylvania, is a 10-year veteran of the office he is now shaking up. He looks younger than his 43 years and is happy for junior staff members to call him Seth.

In private and public appearances, Mr. Williams repeats practiced lines from a justice-reform movement that has taken hold in places like New York, San Diego and San Francisco and promotes, for lesser offenders, community courts and drug treatment rather than trial and prison.

“Crime prevention is more important than crime prosecution,” he said repeatedly last week as he rode from one event to another. “We need to be smarter on crime instead of just talking tough.”

“I’ve put my money where my mouth is,” he added in an interview, by redirecting his overstretched resources toward a more careful selection of cases and starting a computerized study of prosecutions to see why they so often fail.

But the real test of public support for Mr. Williams’s new directions, Ms. Greenlee and other legal experts said, may come if there is a surge in high-profile killings or the killing of a police officer by a repeat offender. Violent crime has fallen here in recent years, but of the 10 largest cities in 2009, Philadelphia still had the highest murder rate.

“We need to focus on the people who are shooting people,” Mr. Williams said of the newly lenient penalties for marijuana. Senior court officials said the shift would avoid 4,000 costly trials a year.

The only public condemnation came from Mr. Williams’s predecessor, Lynne M. Abraham, who during 18 years as district attorney sounded an increasingly hard line on crime. Ms. Abraham criticized the new marijuana policy, saying that “the drug cartels who import pot from Mexico are thrilled.”

While the drug shift caught the public eye, legal experts said the changes Mr. Williams was making, especially in the unit that decides what charges to file against those who are arrested, are far more important.

Previously, the charging unit included five lawyers, usually junior lawyers who were encouraged to file the widest and harshest charges they could, Mr. Williams said. Now the unit has 18 more experienced lawyers, who spend time considering what charges can realistically succeed. The office is also offering plea bargains earlier in the process, again to clear the courts for more serious cases.

“The new D.A. is one part of a sea change that is occurring in criminal justice in Philadelphia,” said Seamus P. McCaffery, a State Supreme Court justice.

The drive to streamline the justice system became easier, Mr. Williams and Justice McCaffery said, after an investigative series by The Philadelphia Inquirer last December found that the city had failed to obtain convictions in two-thirds of cases involving violent crimes, and that thousands of cases were dismissed because prosecutors were not prepared or witnesses did not appear.

Ms. Abraham, the former district attorney, who is now in private practice, called the articles misleading and said it was wrong to “do justice by the numbers.”

On one recent morning, Mr. Williams spoke to loud applause at the high school graduation at Freire Charter School.

“Why am I spending time here?” he asked. “Of the 75,000 people arrested each year for crimes in Philadelphia, what is the one thing they have in common? They didn’t graduate from high school.”

He described his own origins, saying they could easily have left him a street thug. When he was born in 1967, he went from the hospital to an orphanage; he does not know anything about his biological mother and said he was not interested in learning.

He spent time in two foster homes before being adopted, at 18 months old, by a middle-class black couple whom he credits with instilling a sense of civic duty. His father was a schoolteacher who also worked evenings at a recreation center, and his mother was a secretary.

As he congratulated the graduating seniors, he told them about a personal failure: He got into West Point, but had to leave in his first year when he failed math and chemistry.

He switched to Pennsylvania State University, where he was elected head of the Black Caucus and then the student government. He attended Georgetown Law School and started as an assistant district attorney under Ms. Abraham. Chafing at what he saw as a dysfunctional system, he resigned to run against her, unsuccessfully, in 2005.

The Philadelphia district attorney’s office was a stepping stone for the likes of Senator Arlen Specter and Gov. Edward G. Rendell, but Mr. Williams declined to speculate about his future.

Eugene J. Richardson Jr., one of the legendary Tuskegee airmen of World War II and a retired school principal, said he hoped the changes sought by Mr. Williams would pan out, adding, “So often the new broom comes in and then gets stuck in a corner.”