Conduct and Ethics 2016


Posted 11/2/16

NO GOOD DEED GOES UNPUNISHED

To avoid anointing Trump, the FBI Director falls into a trap of his own making

     By Julius (Jay) Wachtel. “It’s pretty strange to put something like that out with such little information right before an election. In fact, it’s not just strange; it’s unprecedented and it is deeply troubling.” One day after the FBI Director’s startling reveal about a new trove of emails, Hillary took a swing at the very same official who, in an equally “unprecedented” move, had recently exonerated her from criminal liability. We’ll know in a few days whether Comey’s letter to Congress was indeed the equivalent of running over Hillary’s quest for the Presidency with an “18-wheeler” (as DNC chair Donna Brazile put it) or simply another annoying distraction in a most annoying Presidential campaign.

     Still, there’s little doubt that James Comey’s maneuverings created the perfect storm of a dilemma. We’ll get to that in a moment. For now, let’s address the email scandal of which so much hash has been made.

     When Hillary was anointed Secretary of State she turned up her nose at the thought (horrors!) of a State.gov email address. Instead, America’s chief diplomat continued to use her beloved Blackberry and a personal email account that routed messages through a private server installed at her home. Despite her repeated denials, she used this process for conveying and receiving classified information. Here’s an extract from Director Comey’s initial press release that describes the security status of thirty-thousand work-related emails that Hillary’s lawyers reluctantly turned over to the FBI:

    From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

     Alas, when the scandal erupted Hillary ordered the purge of all “personal” correspondence from the server, so the true extent of the imbroglio will never be known.

     It’s not that our would-be Prez was ignorant of the rules. First ladies and Secretaries of State are extensively briefed about handling classified materials and the techniques used by America’s antagonists to gain unauthorized access (Russians are reportedly terrific at such things.) As a lowly ATF agent and first-line supervisor your blogger was cleared for “top secret” (the scale actually goes well beyond that) but in practice never came across anything marked higher than “confidential,” the lowest rung on the ladder. Even these materials required special handling, and one can only imagine what’s required to safeguard the information that routinely crosses the desk of our nation’s top diplomat.

     Whatever her reasons – a forthcoming Presidential campaign, past experience battling the fires that nearly drove her husband from office, or more simply, a matter of temperament – Hillary clearly sought to keep her trove of official correspondence private. Yet no Government employee is entitled to create a secret stash of official correspondence. Despite her protestations, there is no evidence that she ever officially asked to use a personal email account, nor that doing so was approved. Of course, as a lawyer, Hillary knew better than to request permission that would surely be denied, lest the inevitable rebuke become, if ignored, evidence of criminal intent.

     But didn’t Comey clear her? We’ll let the reader be the judge:

    Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges…In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

     Hillary’s conduct potentially fell within the purview of two Federal criminal statutes, 18 USC 1924, a misdemeanor, and 18 USC 793(f), a felony:

    Title 18 United States Code, sec. 1924: (a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

    Title 18, United States Code, sec. 793(f): (f) Whoever, being entrusted with or having lawful possession or control of any document…relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed….Shall be fined under this title or imprisoned not more than ten years, or both.

     Director Comey mitigated the seriousness of Clinton’s seemingly slam-dunk “mishandling of classified information” by pointing out that her actions weren’t “clearly intentional and willful.” Exactly what does this legal-speak mean? According to the U.S. Attorney’s Manual, “an act is done ‘willfully’ if done voluntarily and intentionally and with the specific intent to do something the law forbids.” As we pointed out, Hillary dodged that trap by simply not asking, then playing dumb. What’s more, neither statute requires proof of willfulness. For example, 18 USC 1924 hews to the far less demanding “knowing” standard, which requires evidence that an accused acted with “knowledge or awareness of the facts or situation, and not because of mistake, accident or some other innocent reason.” In other words, did Hillary really mean to store her Government emails on a private server, or not?

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     Hillary’s absolution doesn’t rest on the cold, hard facts. It’s based, instead, on Comey’s belief that her acts, while perhaps technically illegal, didn’t rise to the level where a “reasonable” prosecutor would feel compelled to press charges. But to our best recollection there has never been anything even remotely comparable to what she did. What other Secretary of State, for reasons of pure selfishness, purposefully circumvented accepted communications protocols, not on a case-by-case basis but for years, keeping critical deliberations out of Government archives while potentially exposing a wealth of highly sensitive material to our nation’s adversaries?

     Separating law enforcement and prosecution accomplishes two things. On the one hand, it insulates cops from political pressure; on the other, it assures that liberty interests are protected by officials who are answerable to the courts and whose duty is to bring justice, not merely convict. Accordingly, charging decisions are typically made and announced by prosecutors. But Comey, a former United States Attorney and Deputy Attorney General, is no longer a prosecutor but the executive of our nation’s premier law enforcement organization. In other words, he’s a top cop. When he stepped out of that role to proclaim that Clinton would not be charged his comments were as stunning for their source as for their content.

     This former Fed – he’s probably not the only one – believes there was abundant evidence to convict Hillary of the misdemeanor. Of course, merely bringing charges would have in effect anointed Trump as our next Commander-in-Chief. That’s presumably something that neither FBI Director Comey nor his boss, Attorney General Loretta Lynch, nor any other senior member of the administration, nor at least half the public could easily stomach. So something had to be done. But the A.G. couldn’t step in. Had Loretta Lynch given Hillary a pass her decision would have been roundly condemned as politically driven, and particularly after the furor raised by her June tête-à-tête with Hillary’s husband. (Lynch insisted that her chat with Bill had nothing to do with the emails.)

     To be sure, Comey is also an appointee. As FBI Director, though, he carries far less political baggage than the A.G. He also enjoys an unimpeachable reputation (check out, for example, his sterling role in keeping White House weasels from strong-arming a bedridden John Ashcroft.) Your blogger can’t be positive that Lynch personally beseeched Comey to clear Hillary. Maybe it was a little bird. But whoever or whatever did it, it probably wasn’t a hard sell.

     Then the other shoe dropped. When more e-mails surfaced, Comey was instantly caught in a dilemma of his own making. Having inappropriately assumed the prosecutorial mantle in “l’affaire qui plombe Hillary Clinton” (thanks, Le Monde,) the nation’s top cop owned the imbroglio, hook, line and sinker. Comey had already testified about the matter before the House Judiciary Committee. He knew full well that not everyone at Justice and the FBI was pleased with his decision to let Hillary off, and undoubtedly worried that word about the new batch would leak. Keeping Congress in the dark, even for an instant, was out of the question. It could make it seem as though he wasn’t an impartial public servant but just another political hack. So of course the man blabbed.

     As one might expect, that badly upset the applecart. Critics quickly accused Comey of purposely meddling in an election, even (horrors!) of favoring Trump. What they missed were the struggles of a proud Government servant straining to protect his reputation after a fundamental misstep. Had Comey kept quiet and stuck to his official role from the very start, responsible for overseeing investigations but not for implementing their findings, he could have simply directed a review of the new stash and, in due course, submitted his agents’ conclusions, leaving further decisions to Loretta Lynch, where they properly belong.

   But Comey had already put on her hat. Imagine the reaction if he and the A.G. managed to suppress word of the emails until after Hillary’s election. Imagine the consequences if the new batch proved significant. Comey was indeed caught between a rock and a hard place. And now, by extension, so is everyone else but Trump.

UPDATE (5/3/17): Staunchly defending his actions, FBI Director Comey testified at a Senate hearing that not revealing that more e-mails were found would have been “an act of concealment.”

UPDATE (4/23/17): The New York Times publishes an in-depth analysis of the FBI/Clinton imbroglio.

UPDATE (11/6/16): In a new letter to Congress, FBI Director James Comey announced that a review of the additional emails does not change his original recommendation against prosecuting Clinton.

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Posted 9/17/16

WORDS MATTER

In a conflicted, gun-saturated land, heated rhetoric
threatens cops’ effectiveness – and their lives

     By Julius (Jay) Wachtel. It’s been another very bad summer.

     On Thursday, July 7, Micah Johnson, 25, opened fire on Dallas police at the end of a demonstration by Black Lives Matter. Johnson, who was armed with an assault-style rifle, shot and killed five officers and wounded nine. He told police negotiators that he was angry about police shootings of black men and was aiming for white officers. A one-time Army private with a checkered service history, Johnson had voiced support on Facebook for the New Black Panther Party, a reportedly anti-white, anti-Semitic hate group. Johnson was ultimately killed by an explosive delivered with a police robot.

     Ten days later, on July 17, Gavin Long, 29, shot and killed three Baton Rouge police officers and wounded three using an assault-style rifle. A former Marine from Kansas City, Long had posted angry online comments about police shootings of black men. According to his mother, Long thought that he was being followed by the CIA. He was shot and killed by police.

     Three days after that, on July 20, unknown persons drove by two NYPD officers on foot patrol, “made a statement about getting them” and opened fire. Neither officer was injured. It was a far better outcome than what took place one and one-half years earlier, when Ismaaiyl Brinsley, 28, walked up to two unsuspecting NYPD officers sitting in a patrol car and shot them dead with a pistol. Brinsley, a mentally troubled man with an extensive arrest record, had posted “I’m Putting Wings on Pigs Today” on Instagram and shot his girlfriend in the stomach. He ultimately committed suicide.

     Three days later, on July 23, an unknown assailant walked up to an Oakland police sergeant sitting in her vehicle and opened fire. A bullet struck the police vehicle but the officer was uninjured.

     One day after that, on July 24, unknown persons fired on Kansas City police officers who were out of their vehicles handling an unrelated call. The officers took cover and were unhurt.

     Five days later, on July 29, officers in Columbia, a small Pennsylvania town, were fired on while responding to reports of gunfire at a cemetery. Police arrested two cousins, Marquell Rentas, 17, and Trenton Nace, 18, for attempted murder. Rentas reportedly admitted that he tried to shoot the officers. His mother blamed it all on Black Lives Matter:

    They are in jail for doing what Black Lives Matter wanted them to do: shoot at cops. The truth is that these are two punk kids following the orders of an irresponsible organization and now they're gonna pay for it.

Her husband agreed. County prosecutor Craig Steadman warned that harsh words directed against the police could encourage violence:

    We as a society need to take a look at what's going on in our country. There's a lot of rhetoric demonizing police. It creates greater a chance to have individuals emboldened to take violent actions out on police.

     Later that day, unknown assailants fired on Emeryville, Calif. police officers on foot patrol. One 9mm. bullet lodged in a wall but no one was injured. No arrests were immediately made.

     Less than a month later, on August 27, participants in a Black Lives Matter march outside the Minnesota State Fair chanted “pigs in a blanket, fry ‘em like bacon.” Their lyrics drew a rebuke from a St. Paul police union official: “I don’t think chanting or singing what’s basically promoting killing police officers is peaceful.” One of the event’s organizers disagreed: “It definitely wasn’t a threat. I don’t know if they would have received it differently if we would have said on a stick. We’re there chanting, using our voices.”

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     That “chant” didn’t take place in a vacuum. A few hours earlier Harris County, Texas deputy sheriff Darren Goforth was shot and killed while fueling his patrol vehicle at a commercial gas station. Police soon arrested Shannon Miles, 30, in what Sheriff Ron Hickman called a “calculated cold-blooded assassination.” Deputy Goforth’s grieving boss laid blame on out-of-control rhetoric:

    We’ve heard Black Lives Matter, All Lives Matter. Well, cops’ lives matter, too. So why don’t we drop the qualifier and say lives matter. I’ve been in law enforcement 45 years. I don’t recall another incident this cold-blooded and cowardly.

A surveillance video reportedly depicted Miles running up to the deputy and continuing to shoot even after his victim was on the ground. According to the indictment, Miles was “retaliating” against police. Goforth left behind a wife and two children.

     Intemperate comments offer a rationale for disturbed, impulsive persons with guns – of whom there are regrettably many – to act out their rage. Episodes of real and alleged police misconduct, of which we have written extensively (see related posts below) have become grist for a mill of desensitizing, anti-cop rhetoric that fuels animosity towards cops and has seemingly become a litmus test of group loyalty. How else to explain recent comments by the leader of the African American Tobacco Control Leadership Council (AATCLC), a public health organization, who felt compelled to smear police officers while being interviewed about a topic as far removed from police misconduct as one can imagine: a campaign to ban menthol cigarettes:

    ...Our children deserve protection from the police. They deserve protection from the deadly silent predator: the tobacco industry...

While the group’s public letter to President Obama didn’t include the “protection from” comment, it nonetheless featured an inflammatory dig against the police:

    While our communities are besieged by the more immediate problems of police violence, racism, and unemployment, you can quickly direct the FDA to issue a new proposed rule…The rule will protect us from our most serious silent predator, the tobacco industry, an industry relentlessly working to seduce and addict another generation of our young people.

     And the carnage continues. Late last night, Friday, September 16, a 25-year old man with a long arrest record walked up to a Philadelphia patrol car and inexplicably opened fire. By the time the incident was over, two officers lay wounded and the suspect and an innocent citizen (whom the suspect shot as he fled) were dead.

     At present, these incidents are, however deplorable, still anecdotes. There is simply insufficient information to tie them to a common cause. Yet there is plenty reason for concern. According to LEOKA, the FBI’s yearly compendium of lethal and non-lethal assaults on police, 255 officers were murdered between 2010-2014, including 38 in ambushes and unprovoked attacks. During the same period 533 officers were injured with a weapon, 26 in ambushes and unprovoked attacks. Perhaps organizations such as Black Lives Matter and the AATCLC could mount a campaign to discourage citizens from harming police. We could then look at the numbers. Maybe rhetoric could be a force for good.

     Cops and citizens have innumerable interactions every day. Most end uneventfully, if not always pleasantly for the bad guys. Labeling officers as a generic threat is a gross distortion that encourages the unhinged and interferes with the public trust and cooperation that officers need to do their job. As we’ve discussed in prior posts, some cops overreact, use excessive force and otherwise treat citizens poorly, and they must be weeded from the ranks. But when supposedly good people promote hostility towards police in general, potentially making the streets even “meaner” and more treacherous, encouraging officers to treat everyone courteously and with care becomes a very tough sell.

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Posted 7/3/16, edited 7/4/16

INTENDED OR NOT, A VERY ROUGH RIDE

A hung jury and two acquittals mar a prosecutor’s crusade against police violence

     By Julius (Jay) Wachtel. By now the name “Freddie Gray” has been burned into the minds, if not the conscience, of most every criminal justice professional in the U.S. Briefly, the facts are as follows. During the morning hours of April 12, 2015 Gray, 25, tried to dodge a police bicycle patrol while walking around inner-city Baltimore. Suspicious cops chased him down and, during a brief but, witnesses say, violent struggle, allegedly found a switchblade in his pockets.

     Gray was handcuffed, dragged into a police van and hauled away. One block later the vehicle pulled over. Gray was supposedly thrashing around, so officers shackled his feet. About forty-five minutes later the vehicle, now hauling a second arrestee, pulled into its destination. Officers found Gray on the floor, non-responsive. He was hospitalized with severe spinal cord trauma and died a week later. (For a timeline of the stops click here.)

     Most everyone agrees that Gray was never buckled in and that he sustained his fatal injury during the van ride. Three things remain in contention: whether cops purposely drove erratically, whether Gray was purposely left unsecured, and whether his pleas for medical attention, made early during the incident, were purposely ignored.

     This isn’t the first time that Baltimore officers have been accused of such things. Yet it’s seemingly a first for what came next. Six cops, including a lieutenant and a sergeant, were quickly suspended. Baltimore city prosecutor Marilyn Mosby then did the unthinkable: she promptly charged each officer with crimes ranging from misconduct in office to, in one case, murder.

     Many welcomed her aggressive posture. After all, only nine days before Gray’s arrest, Baltimore PD issued a policy requiring that officers obtain medical attention for detained persons “when necessary or requested, and that “whenever a detainee is transported in a police vehicle” they be “secured with the provided seat belt or restraining device.” But some observers worried that the cases were seriously overcharged. After all, proving to a criminal certainty that officers were motivated by a depraved purpose is no easy feat.

     So far the concerns have been borne out. Officer William Porter, who was accused of failing to summon medical aid for Gray, was the first to go on trial. Although his involvement was clearly the most peripheral, Officer Porter faced several charges, including involuntary manslaughter. Jurors deadlocked on all counts, and on December 16, 2015 a mistrial was called.

     Since then there have been two more trials, both by the bench, and both with the same outcomes. On May 23, Officer Edward Nero, a bicycle cop who helped detain Gray and place him in the van, was found innocent on all counts, including reckless endangerment and assault. One month later, Officer Caesar Goodson, the van’s driver and the only defendant facing murder charges, was also fully acquitted. When rendering his decision, the judge complained that prosecutors failed to prove that Gray got the “rough ride” prominently featured in their opening argument. “As the trier of fact, the court can’t simply let things speak for themselves,” he scornfully remarked.

     Three more trials are pending – the retrial of Officer Porter, and the trials of Sergeant Alicia White and Lieutenant Brian Rice. Given what’s already happened, there is little expectation that prosecutors will meet their evidentiary burden.

     On the other hand, as Baltimore well knows, civil cases present a much lesser burden of proof. That may be one reason why it settled with Gray’s family in November for $6.4 million. Another is that this wasn’t the first time that Baltimore’s finest have been accused of giving rough rides. More than a decade ago, in November 2005, officers hauled away a man arrested for urinating in public. When Dondi Johnson Sr. was placed in the police van he seemed in good health, but when it arrived at its destination he was paralyzed with a broken neck. Johnson died from complications two weeks later. Before his death, he said that he had been handcuffed but not belted in, and that the officer’s aggressive driving had mercilessly flung him around the van.

     But that was pre-Gray. Despite a standing order that detained persons be belted in during transport, none of the officers involved in Johnson’s arrest were charged. Neither did the city voluntarily settle the family’s claim. At a civil trial, jurors found two cops negligent, a third grossly so, and awarded Johnson’s family $7.4 million. In 2012 an appellate court agreed with the verdict but invoked statutory limitations that reduced the award to $219,000.

     More recently, in June 2012, officers arrested Christine Abbott during an altercation at her residence. Here is an extract from her lawyers’ account of what happened next:

    Officers then forcefully threw Abbott into the back of a police van. Police did not strap or harness Abbott into the back of the police van, nor was a seatbelt used...The Officer controlling the van maniacally drove Ms. Abbott to the police station, during which time Ms. Abbott’s person was violently tossed around the interior of the police van…Abbott sustained physical injuries as well as mental and emotional injuries…She has difficulty expressing the fear and humiliation that she was subjected to by the Police, but says that she felt “less than human” when she was thrown into the police van and “treated like cargo.”

     Abbott’s lawsuit was settled in October 2015 for $95,000.

     And then there’s the disturbing episode of Jeffrey Alston, a 32-year Baltimore man who wound up a quadriplegic in 1997 after Baltimore cops arrested him for drunk driving. Like Freddie Gray, Alston also suffered a broken neck. Unlike Gray, Alston claimed it happened when officers manhandled him during arrest. Police, on the other hand, insist that he self-inflicted his injuries during transport, by purposely head-butting the van’s interior walls. In 2004 a civil jury decided that Alston’s account was correct and awarded him $39 million; he settled for $6 million that December. Alston died from complications less than a year later.

     Back to Freddie Gray. Given the tenor of the times, one might attribute his alleged mistreatment to racial animus. After all, Gray was black. But so are three of the six cops charged in the case, including officers Porter and Goodson. (In 2013, 40.3 percent of Baltimore’s approx. 3,000 cops were black.) Baltimore’s chief prosecutor, Marilyn Mosby, is also black, as is mayor Stephanie Rawlings-Blake. So was police commissioner/chief Anthony Batts, who was fired three months after Gray’s death and replaced with the current head, Kevin Davis (he is white.)

     Still, unless we choose to bury our heads in the sand (actually, ostriches don’t) it’s painfully clear that Baltimore PD has problems. What to do? Shortly after the Gray episode, Mayor Rawlings-Blake asked the Justice Department to look into the troubled agency. DOJ promptly opened a “patterns and practices” investigation. That’s still a work in progress. Meanwhile Baltimore PD just rewrote its use of force policy. It emphasizes “sanctity of life” and the duty to render aid and urges cops to “de-escalate” incidents whenever possible. (For more on that trendy approach click here.)

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     Baltimore has always featured prominently in our blog. During the 2008-09 recession we reported that declines in manufacturing may have led to increased crime in the industrial centers of the Northeast, Baltimore included (click here and here). But while the city’s economy has substantially recovered – its present unemployment rate, 4.3 percent, is actually a notch under the national average of 4.5 – violence remains stubbornly high. According to a Brennan Center analysis of crime in the nation’s thirty largest cities, Baltimore’s 2015 violent crime rate of 1,550.6 was second only to notorious Chicago’s. (And by “second” we mean second worst.) Baltimore also came in number two in the murder sweepstakes, slightly behind homicidal St. Louis.

     Nine years ago one of Police Issues’ first posts addressed problems besetting its hometown agency, LAPD, whose reputation had been thrashed by the Rodney King beating and the Rampart Scandal. Instead of simply turning to the usual correctives (e.g., supervision, training, discipline) we suggested a different approach:

    In fractured Los Angeles, reeling from economic disparity, a large, restless underclass, a decaying infrastructure and grossly underfunded schools and public services, cops face inordinate challenges. And the demands keep piling on…Unreasonable demands set up cops to fail. They also ignore the fact that in most cases it is citizen behavior that needs to be “reformed”. Spend a few months on the street taking calls, and you will be convinced that we might carry Palm-Pilots in our pockets, but we are Cro-Magnons at heart. If we want kinder and gentler cops, we need kinder and gentler citizens.

     While the iPhone has supplanted the “Palm-Pilot,” our entreaty still applies. Given what’s “going down” on the streets of Baltimore, the stresses of policing may well have spawned a culture of disrespect towards anyone not wearing blue. To be sure, the new chief is presumably trying to instill or re-awaken a lost sense of craft (for more about that critical notion click here.) And there are likely some “bad apples” who may need to be culled from the ranks. Yet, as we recently suggested, reforming cops who labor, day in and day out, in an environment of unrequited violence may prove an exercise in frustration:

    But when gangsters rule the streets, restraint – that valuable commodity that cops in more favorable climes exercise every day – goes out patrol car windows. We can threaten, train and reorganize until the cows come home, but reform can’t take hold in an atmosphere of unrequited violence. When officers are enveloped by disorder, the craft of policing is a lost cause.

     When we mentioned “something peaceful yet emphatic, perhaps along the lines of Black Lives Matter but aimed within” we were blogging about Chicago. Imagine our surprise when a comparable approach was proposed by Munir Bahar, a notable Baltimorean and leader of the “300 Men March,” an organization of black residents who regularly stage anti-violence demonstrations in the besieged city. Interviewed soon after the June 25 assassination of Baltimore rapper “Lor Scoota,” his words resonate with the authority that only comes through personal experience:

    Where’s the professional men, where’s the black intellectuals, the educated folks who have degrees? How come you can’t fix your own damn community?

     And to that, what can one add but “Amen!” Still, as we pointed out in “Location, Location, Location,” crime is a matter of place, and that “place” is typically economically disadvantaged. That’s not where “professional men,” “intellectuals” and “educated folks,” black or white, tend to reside. So we need a way for the overwhelmingly decent and law-abiding citizens who do live in these places – these neighborhoods – to take them back from the thugs. Figuring out just how police and others can help remains very much a work in progress.

UPDATE (8/10/16): DOJ’s “patterns and practices” investigation is in, and its findings are grim. In unsparing language, it accuses Baltimore PD of, among other things, targeting African Americans through a pattern of “unconstitutional stops, searches and arrests.” For the report, click here.

UPDATE (7/22/16): In a decision she called “agonizing,” State’s attorney Marilyn J. Mosby dropped all remaining charges in this case. However, agency disciplinary hearings for the six officers are expected to proceed.

UPDATE (7/18/16): Ruling that prosecutors did not prove that the defendant knew that not strapping in Freddie Gray could cause death or serious injury, Baltimore judge Barry G. Williams acquitted Lt. Brian Rice of all charges including involuntary manslaughter.

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Is it Always About Race?     Words Matter     Location, Location, Location     Role Reversal

More Rules, Less Force?     De-Escalation: Cure, Buzzword or a Bit of Both?   The New Normal

A Tale of Three Cities     We Get The Cops We Deserve

RELATED ESSAYS

The Craft of Policing




Posted 5/7/16

ORANGE IS THE NEW BROWN

L.A.’s past sheriff and undersheriff pack their bags for Hotel Fed.

By Julius (Jay) Wachtel. There was a good reason why it only took two hours to find Paul Tanaka guilty. While jurors listened transfixed, an underling recounted, in profane detail, how L.A. County’s former undersheriff reacted when he learned, in summer 2011, that an inmate had been secretly collecting evidence for the FBI:

    He slammed his hands on the table and said, ‘Those mother-f------! Who do they think
    they are? F--- them!’

     Everyone knew that the department’s number two considered the lockups his personal fiefdom. Even if prisoners were being abused, how dare the FBI intrude! Tanaka and his boss, Sheriff Lee Baca, promptly assigned a team of six deputies to foil the Feds’ dastardly plot. In a scheme dubbed “Operation Pandora’s Box,” they sequestered the stoolie in another jail under an assumed name and placed him on around-the-clock watch.

     No matter. Word that the Feds were investigating jail conditions soon leaked to the media. Then the real bombshell struck. It turned out that the FBI’s inside man had been communicating with his handlers in real time, using a cell phone. Worse yet, the device was smuggled in by a corrupt deputy who was paid $1,500 by an undercover agent.

     Sheriff Baca was furious at the breach of etiquette. He insisted that his department made the snitch unavailable for his own protection. Moreover, it was the Feds who broke the law; after all, giving an inmate a cellphone is a crime! That, indeed, is what the deputy team told the FBI agent running the case when they went to her home and threatened her with arrest.

     Your blogger was with ATF, not the FBI. But a Fed is a Fed. In that world, what the deputies did was unforgivable. Suddenly the investigation wasn’t just about prisoner abuse. It took a while, but three years after hiding the stoolie and trying to intimidate the FBI agent, Baca’s magnificent six went on trial for obstruction. “Following orders” proved a poor defense. All were convicted and received Federal sentences ranging from 21 to 41 months.

     Baca promptly retired. But the Federal locomotive was picking up steam. On February 10, 2016, the lawman who presided over the largest Sheriff’s office in the U.S. for one and one-half decades pled guilty in Federal court to lying about his knowledge of the intimidation attempt. He had little choice, as at least one of the deputies was blabbing. That became obvious two months later, when the officer’s graphic testimony, quoted above, led to Tanaka’s conviction for conspiracy and obstruction of justice.

     According to the plea agreement, Baca is expected to get six months. Tanaka will be sentenced in June. Unlike his one-time boss, who cashed in his chips and said he was sorry, the undersheriff played hardball and lost. A stiff term is likely.

     What did the harebrained scheme accomplish? Beyond fitting two big-shots and a handful of deputies with orange jumpsuits, very little. It certainly didn’t discourage the hounds baying at the jailhouse doors. Reports by the ACLU and the L.A. County Office of Independent Review (the county’s top civilian investigative body) revealed a distressing deputy culture in the jails. Confirmed accounts of inmate abuse and maltreatment led to the formation of an official Citizen’s Commission on Jail Violence (click here for their report), a class-action lawsuit (settled with a consent decree in 2014) and, beginning in 2015, monitoring by the U.S. Justice Department. It’s a legacy for which Baca, Tanaka and their cronies will be long (and not fondly) remembered.

     L.A. County wasn’t the first political jurisdiction in Southern California to drag its Sheriff’s department through the mud. That distinction belongs to its southern neighbor, the County of Orange. In 2009 Sheriff Mike Carona, then in his third term, was found guilty on Federal witness tampering. He was released in 2015 after serving 52 months. His conviction stemmed from a meeting with Don Haidl, a wealthy businessman whom Carona had placed in charge of the Sheriff’s reserves. What Carona didn’t know was that Haidl and George Jaramillo, the Sheriff’s former Chief of Operations, had been secretly indicted on Federal tax charges, and were seeking leniency by ratting on Carona, whom the Feds suspected of granting favors in exchange for campaign contributions. Haidl wore a wire and secretly recorded the sheriff advising him to be evasive with the Grand Jury. (For a full account of the improbable case see “Carona Five, Feds One.)”

Click here for the complete collection of conduct and ethics essays

     Of course, police departments have also had their share of corruption and misconduct. One notorious Southern California example is LAPD’s “Rampart Scandal” of the nineties. But Sheriff’s offices may be particularly vulnerable. Police chiefs are civil servants with a “real” boss, a Mayor or City Manager, and are usually appointed through a competitive process. Sheriffs, on the other hand, are typically elected. While that makes them theoretically answerable to the public, in actual practice that can mean no one.

     Prolonged tenures can make things worse. Baca was appointed an L.A. County deputy in 1965. He was elected Sheriff in 1998 and re-elected four times. Carona became Orange County Marshal in 1988 and was elected sheriff ten years later. He was re-elected twice and served another decade before resigning. Proponents of term limits believe that long terms in office can be “intoxicating,” fostering a sense of impunity and creating an ideal setting for corruption. Even where limits are in effect, sheriffs aren’t usually affected, so self-serving climates can form with impunity.

     Earlier posts (see below) commented extensively on the problems of controlling the conduct of elected leaders, so we won’t belabor them here. Happily, there is some good news to report. Jim McDonnell was elected L.A. County Sheriff in 2014. (He was opposed by none other than Tanaka, who thankfully lost.) A career cop who rose to become LAPD’s number two, then served five years as chief in Long Beach, McDonnell was praised by the editorial board of the L.A. Times for “de-Tanakafying” his troubled agency. Most deputies, who presumably want nothing more than the opportunity to do a good job, would likely say “amen.” If there is a problem it may lie in McDonnell’s excessive loyalty to subordinates. Only the other day Tom Angel, his chief of staff, resigned after admitting that he sent emails mocking women and minorities while in his previous role as deputy chief for the Burbank Police Department. McDonnell’s reluctance to censure Angel, supposedly because the incidents didn’t happen on his watch, drew rebukes from community leaders, and one hopes that a lesson was learned.

     Meanwhile, Sandra Hutchens, a retired L.A. County Sheriff’s division chief, is in her first elected term as Orange County Sheriff (she was appointed in 2014 after Carona left.) Hutchens has faced a few controversies, most notably about concealed carry permits, but otherwise manages to keep invisible. Hutchens’ leadership team also received high praise in a 2015 deputy poll, which commended Undersheriff Don Barnes, formerly chief of police services for a suburban community, for his integrity. This suggests that the Hutchens-Barnes team is unlikely to reprise the mistakes of the Carona-Jaramillo-Haidl era.

     Here’s hoping that we’re not proven wrong.

UPDATE (5/12/17): Baca, 74, was sentenced to three years imprisonment, followed by one year of supervised release. Prosecutors had asked for a two-year prison term.

UPDATE (3/15/17): At his retrial Federal jurors convicted Baca of obstructing justice, lying to the FBI and conspiracy. The prosecution’s case was enhanced by new testimony against Baca and by a ruling that barred the defense from claiming that Baca’s mental condition caused some of his behavior.

UPDATES (12/24/16, 1/10/17): Apparently convinced that Baca, as his lawyers insisted, was indeed being tried for the sins of his underlings, Federal jurors hung 11-1 in favor of acquittal. On January 10, 2017 the Feds announced that Baca would be retried.

UPDATE (8/5/16): Federal authorities indicted ex-L.A. County Sheriff Lee Baca on two counts of obstruction of justice and one count of lying to the FBI. Baca had withdrawn a guilty plea to lying after the judge nixed a plea-bargained six-month stretch as a sweetheart deal, inconsistent with the stiff terms that Baca's minions got.

UPDATE (7/18/16): Calling the proposed punishment so lenient that it would “trivialize the seriousness of the offenses,” a Federal judge rejected the plea agreement that would have limited ex-sheriff Lee Baca’s prison term to six months.

UPDATE (6/27/16): Accusing Tanaka of having “exacerbated” rather than corrected problems in the jails, a Federal judge sentenced him to five years in prison. Unlike Tanaka, who went to trial, his former boss Baca pled guilty in an agreement that will get him up to six months.

UPDATE (5/17/16): On May 16, 2016 two L.A. County Sheriff’s deputies (not the ones mentioned below) were convicted in Federal court of beating a jail inmate in 2010 and of filing a false report. One of the deputies is facing another trial for a 2009 jailhouse incident.

UPDATE (5/10/16): On May 9, 2016 two L.A. County Sheriff’s deputies were sentenced to 13 months in Federal prison for lying about a beating they administered to a jail inmate in 2009. (At the hearing, the judge asked prosecutors to explain why, in contrast, the Government was only seeking a six-month term for the deputies’ then-boss, Sheriff Baca.)

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Posted 4/24/16

ROLE REVERSAL

Chicago’s falling apart. Who can make the violence stop?

     By Julius (Jay) Wachtel. Tyshawn Lee was only nine years old when he was viciously gunned down. It wasn’t a stray round. Several weeks ago police arrested Dwright Boone-Doty, a member of the Black P-Stones. He was identified as the triggerman for a three-hoodlum team that lured the child into a South Side alley and executed him last November. One of the killer’s alleged helpmates, Corey Morgan, was previously arrested, and the other is being sought. Boone-Doty was also charged in the unrelated October killing of a woman and the wounding of her companion.

     In the mean streets of Chicago, arrests often mark the beginning of another cycle of violence. Soon after learning of Boone-Doty’s arrest, the dead boy’s father, Pierre Stokes, reportedly tracked down Corey Morgan’s girlfriend and her two nephews. He unleashed a barrage of gunfire; fortunately his aim was poor and no one was struck. Stokes, a member of the rival Gangster Disciples gang and a convicted robber, is now also in jail.

     Why was the child murdered? That, too was reportedly in retaliation, for the gunning down of Corey Morgan’s brother and the wounding of his grandmother a month earlier. In our brave new world of smartphones, robots and space exploration, Chicago seems determined to hang on to the code of the homies. This year, the Windy City recorded 161 murders by April 17, a 64% increase over the comparable period in 2015 and 115% more than in 2014. Shootings have also soared, from 482 to 803, an increase of sixty-seven percent. Days with multiple victims are common, and three or four slain is unexceptional. So far the record was on February 4, when a staggering ten persons were killed, four by bullets and six with knives.

     It’s not a new problem. Last year Chicago topped the thirty largest cities in violent crime. Its rate, 2,377.3 violent crimes per 100,000 population, is more than 50% higher than its closest competitors, Baltimore (1550.6) and Detroit (1508.8). Chicago seems well on track to shatter more records this year.

     Chicago PD has long struggled to earn the confidence of the minority community. Things sank to a new low last November when police were ordered to release a video depicting, in graphic detail, the apparently needless gunning down of Laquan McDonald, a black youth, by officer Jason Van Dyke more than a year earlier. That was the “tipping point” that led to the firing of chief Garry McCarthy and the appointment, by Mayor Rahm Emanuel, of a citizen commission, the “Police Accountability Task Force,” that was charged with studying the troubled agency in depth.

     Its report was just released. In a scathing, no-holds-barred account, it offers four reasons to explain why trust was lost:

  • We arrived at this point in part because of racism.
  • We arrived at this point because of a mentality in CPD that the ends justify the means.
  • We arrived at this point because of a failure to make accountability a core value and imperative within CPD.
  • We arrived at this point because of a significant underinvestment in human capital.

     According to the task force, the department’s own data “gives validity” to “the widely held belief the police have no regard for the sanctity of life when it comes to people of color.” What are the numbers? In a city with approximately equal proportions of whites, blacks and Hispanics, 74% of the 404 persons shot by police between 2008-2015 were black, 14% were Hispanic and 8% were white. “Significant racial disparities” were also found for lesser uses of force, car stops and field interviews. (Nothing was said about the distribution of violent crime, but it is known to be far higher in minority areas.)

     There was other bad news. Reviewers discovered that complaints against officers are perfunctorily investigated by employees who are “under-resourced, lack true independence and are not held accountable for their work.” Even when they recommend discipline, in nearly three out of every four cases arbitrators reverse the decision or mitigate its severity. That’s no surprise. Years ago, in a review of Chicago PD’s disciplinary practices, we reported that the Chicago Police Board – nine citizens who to this day hold the final say on who gets punished – upheld the termination of only twenty-one out of eighty cops recommended for firing by the Superintendent between 2003-2007. Then-chief Jody Weis, a retired FBI executive who had been brought in to clean up the department, lamented that his cops were in effect answerable to no one.

     Apparently the struggle over accountability has continued. A database of complaints against Chicago’s finest paints a distressing picture. Investigators seldom recommend discipline, while officers are rarely punished despite amassing dozens of citizen complaints. One cop accumulated sixty-eight in eighteen years; none were sustained. Scrolling through the entries reveals that this was the norm.

     What can be done? As one might expect, the task force recommended that supervision be greatly enhanced. Reviewers called for the early identification of problem officers, prompt intervention and effective discipline, meaning a process with real teeth. There were suggestions for improvements in community relations and officer training in de-escalation, and a recommendation that external oversight be provided by independent panels that are not dominated, as has been the practice, by former cops. Naturally, taking such steps will require the cooperation of the police union, whose contractual demands have supposedly “turned the code of silence into official policy.”

Click here for the complete collection of conduct and ethics essays

     Even if labor climbs on board, there’s a huge fly in the ointment. Revamping the social compact between cops and citizens doesn’t address flaws in the compact among the citizens, who are gunning each other down with abandon. As we’ve repeatedly pointed out, police behavior is inextricably linked to the environment. Violence, and the threat of violence, inevitably beget the police use of force, justifiable and otherwise. Improvements in hiring, training and supervision are great, but when communities are as violent and socially disorganized as Chicago’s South Side, or Los Angeles’ Rampart Division, simply “fixing the cops” is no solution:

    So-called “aggressive” policing could not have taken place in New York City in the absence of a demand to stem street crime. Abuses at Rampart did not start with a conspiracy between rogue officers. They began with a problem of crime and violence that beset Pico-Union. Into this web of fear and disorder we dispatched officers – members of the ineptly named CRASH – whose mission it was to reclaim the streets for the good folks.

    Did we supply officers with special tools to help them accomplish their task? Of course not, since none exist. Yet our expectations remained high. Police officers gain satisfaction from success. Their work is also judged by superiors, who are more interested in numbers of arrests than in narrative expositions, the latter being difficult to pass up the chain of command and virtually impossible to use in budget fights at City Hall.

     Officers aren’t interested in being occupiers. Most enjoy exercising discretion and making distinctions between the naughty and the nice. But when gangsters rule the streets, restraint – that valuable commodity that cops in more favorable climes exercise every day – goes out patrol car windows. We can threaten, train and reorganize until the cows come home, but reform can’t take hold in an atmosphere of unrequited violence. When officers are enveloped by disorder, the craft of policing is a lost cause.

     Ironically, Chicago’s long-standing crime problems have made the city a laboratory for innovation. Over the years its police have experimented with various of initiatives, from predictive policing to the well-known Project Ceasefire. Four years ago the city announced an extensive set of violence-reduction strategies. Some were cops-only, others involved partnerships with citizens (for the most recent incarnation click here.) Naturally, not everything has worked out. One promising approach, which used former gang members to “interrupt” violence, was reportedly dropped because a few “interrupters” apparently returned to their bad old ways.

     Despite its many efforts, Chicago faces levels of violence not seen since the crack epidemic of the eighties and early nineties. It’s obvious that police are an imperfect solution. Perhaps they shouldn’t try to do it all. What the South Side (and reportedly, the West Side) need is a homegrown remedy, organized and run by residents, that could tamp down the violence wrecking their communities. Something peaceful yet emphatic, perhaps along the lines of Black Lives Matter but aimed within. Recommending what amounts to a role reversal might seem odd, but until Chicago’s embattled residents help secure their own streets, they’ll be safe for no one, including the police.

UPDATE (2/15/17): Three Chicago children ranging from 2 to 12 years of age fell to gunfire between February 11 and 14. So far one suspect, 19, is in custody. ATF has promised to send additional agents to help stem the toll.

UPDATE (12/26/16): Christmas weekend was no holiday in Chicago, with 53 persons shot, eleven fatally.

UPDATE (12/25/16): In the New York Times, a sobering, in-depth account of how gang violence has turned inner-city Chicago upside down.

UPDATE (12/2/16): On November 30 Chicago surpassed 700 homicides, a toll not seen since 1998.

UPDATE (5/10/16): Eight persons were shot dead in Chicago and more than forty were wounded during the weekend of May 6-9. According to Chicago’s new police chief, Eddie Johnson, most were on a list of violence-prone offenders. His remedy? Harsher sentencing. “Until we have real truth in sentencing and hold these offenders accountable, this will be the unfortunate reality in the city of Chicago,” Johnson said.

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RELATED POSTS

Why Do Cops Succeed?     Is Trump Right?     Words Matter     Intended or Not, a Very Rough Ride

De-escalation: Cure, Buzzword or a Bit of Both?     Does Race Matter? Part I Part II

Predictive Policing: Rhetoric or Reality?     The Chase is On

Slapping Lipstick on the Pig I II III     What Does it Take to get Fired?     You Can’t Manage Your Way out of Rampart


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