Thursday, June 13th, 2013 — Good Afternoon, Stay Safe
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Question and Frisk Search
Stop-and-frisk lawsuit may lead to federal monitor for NYPD
Attorney General Eric Holder's office has filed a brief seeking a federal NYPD monitor in the event the court finds the stop-and-frisk policy unconstitutional.
By John Marzulli , Rocco Parascandola AND Larry McShane — Thursday, June 13th, 2013 ‘The New York Daily News’
IN A STUNNING MOVE sure to send daggers through 1 Police Plaza and City Hall, U.S. Attorney General Eric Holder weighed in at the last minute on the federal stop-and-frisk trial, tossing his support behind a federal monitor for the NYPD.
Disputing outright the objections of Police Commissioner Raymond Kelly and City Hall, Holder’s office filed an eleventh-hour brief that could lead to a monitor if the NYPD’s stop-and-frisk policy is deemed unconstitutional.
The last day to file legal briefs in the case was Wednesday — and Holder’s office dropped its bomb shortly before midnight, making good on an earlier vow to get involved in the controversial issue.
The Justice Department declined to weigh in on the question of whether stop-and-frisk is constitutional. But it staked out a clear position in the debate over what should happen if the city loses the civil rights case.
“It is the position of the United States that, should the court find that the NYPD’s stop-and-frisk practices are unlawful, the court has wide discretion to enter injunctive relief,” the strongly worded “Statement of Interest of the United States” declares.
“The injunctive relief may include the appointment of an independent monitor.”
Manhattan Federal Judge Shira Scheindlin, who is deciding the class-action suit, would appoint the monitor.
The naming of a monitor to oversee the stop-and-frisk program would be a slap in the face to Kelly and Mayor Bloomberg.
City lawyers have argued the court doesn’t have the authority to appoint a monitor. They have said a monitor would be unnecessary because the NYPD is already overseen by entities such its own Internal Affairs Bureau, the Civilian Complaint Review Board, state and federal prosecutors and the City Council.
But the Justice Department brief filed Wednesday night — signed by Assistant Attorney General Thomas Perez and others from Holder’s office — argues the opposite.
It insists the court does have the power to appoint a monitor — and makes the case that such a move would be the right one.
The Justice Department cites monitors previously ordered by courts or by the feds in cities such as Los Angeles and Pittsburgh as examples of the move succeeding.
“Monitors continue to provide courts with valuable service in other ... cases in cities large and small across the nation,” including Seattle and Detroit, the brief states.
Further taking on city lawyers — who say court-mandated changes and monitoring could hurt the NYPD’s capacity to combat crime — the brief insists the reverse is true.
“In the experience of the United States, however, reform through a court-ordered process improves public confidence, makes officers’ jobs safer and increases the ability of the department to fight crime,” the Justice Department writes.
Holder’s office argues a monitor wouldn’t duplicate existing oversight because he or she would focus specifically on stop-and-frisk.
“It is neither unusual nor inapt for a monitor to be appointed to oversee implementation of a court order even where other types of oversight already exist,” the brief reads.
Not only would a monitor ensure that court-ordered reforms be made, it also would “be essential to ensuring that the New York City community has confidence in the reform process,” the Justice Department states.
Critics of stop-and-frisk, who claim the law enforcement tool is racially biased, earlier Wednesday welcomed word that the Justice Department planned to back the monitor option.
“The plaintiffs . . . have strongly urged Judge Scheindlin to appoint a monitor to ensure that the NYPD will bring their practices in conformity with what is required by the Constitution,” said Jonathan Moore, a lawyer for the stop-and-frisk foes.
“That the (Justice Department) would agree with the plaintiffs in this regard is further testament to the fact that outside intervention is necessary to remedy the wholesale violations of constitutional rights which are occurring daily in this city.”
Sources told The News that Bloomberg and Kelly were outraged. Neither could be reached Wednesday.
“We haven’t seen any papers yet, but New York is the safest big city in the country — and that’s thanks to the exceptional professionalism of the NYPD,” Bloomberg spokesman John McCarthy said before the filing.
“Their work in cutting crime to record lows and taking illegal guns off the street has saved thousands of lives, and our administration will continue giving them the support and tools they need to do their jobs and keep New Yorkers safe,” he added.
The Center for Constitutional Rights, which brought the class-action suit, echoed Moore’s support of the move.
The city needs to “accept that the kind of significant change necessary to fix the NYPD’s stop-and-frisk practices will require outside monitoring,” center attorneys said in a statement.
The news was also well-received in Brooklyn’s 75th Precinct, where cops made 24,408 stops in 2012 — the most in the city, according to the New York Civil Liberties Union.
“The government should have more control over the decisions of the police,” Angel Rivera, 28, said in East New York.
Perez delivered Holder’s decision one day after Bloomberg and Kelly vigorously objected to the plan in telephone conversations with the attorney general, sources told the Daily News.
The action stunned the Bloomberg administration because the Justice Department showed no interest in entering the case until after Scheindlin began considering her decision.
“It’s a step in the right direction,” said plaintiff David Ourlicht, 25. “It means this is a problem we can fix.”
The two-month trial ended May 20, and the judge has yet to rule — with a chance that no decision could come for months.
The NYPD has contended the racial and ethnic breakdown of those stopped mirrored the breakdown of suspects and crime victims.
With Ryan Sit
Legal Brief Seeking a federal NYPD Monitor
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FORGETTEN NYPD HISTORY:
If This Should Happen, This Will be the Second Time the United States Government Has Directly Interjected Itself into the Internal Affairs of the NYPD.
In October of 1870, President Ulysses S. Grant ordered the United States Army's ‘Eight Infantry,’ doing post ‘Civil War’ duty in Charleston, South Carolina to New York City to stop the NYPD from interfering with the Nov. 8, 1870 general elections.
Furthermore, Grant federalized six (6) regiments of infantry and one (1) cavalry brigade from the New York National Guard and placed them in reserve throughout the city’s many armories to prevent the NYPD from participating in organized election fraud.
Grant's stated reason: “The Preservation of the Purity of the Ballot”
For you see, Tammany Hall needed absolute control of the police and the electoral process to loot the city.
Tammany Boss William ‘Marcy’ Tweed established the NYPD via the ‘Tweed Charter’ on April 16, 1870 for this very purpose. It has to be noted here that one of Tweed's most famous quotes was, “I count the ballots, so what are you going to do about it ? ”
Starting in 1869 the NYS Metropolitan P.D. safeguarded the polling locations, oversaw the voting and counted the ballots at the ‘Central Department of Police,’ 300 Mulberry Street. The NYPD took over these duties in 1870.
And as you know, we still do election duty today.
The NYPD had openly paid and registered fraudulent ‘repeaters’ to vote and made no effort to conceal it.
Furthermore, the President of the Board of Police Commissioners, Henry Smith, was one of the Tweed Ring’s closest cronies and as corrupt as they come. Consequently, Tweed attended most of the clandestine NYPD Board of Police Commissioners meetings.
When a United States Deputy Marshal arrested one of Tweed's cronies (8th Ward politician and a paid city employee) for ‘Fraudulent Registration,’ Tammany goons known as ‘shoulder hitters’ forcibly removed the offending Tammany official from the federal marshals with over a dozen NYPD police officers refusing to take police action and turning a blind eye to the violence in front of the Tombs Police Court.
This so infuriated President Grant that he took the above unprecedented action against the department. - Mike Bosak
U.S. Offers Conditional Support for Police Monitor in Stop-and-Frisk Case
By J. DAVID GOODMAN — Thursday, June 13th, 2013 ‘The New York Times’
The Justice Department on Wednesday waded into a federal trial over the New York Police Department’s stop-and-frisk practices, strongly endorsing a monitor to oversee changes if a judge were to find the practices to be unconstitutional.
But the so-called statement of interest, which the department filed late Wednesday in Federal District Court in Manhattan, stopped short of offering the Justice Department itself as a monitor for the Police Department.
The Justice Department lamented that the court had decided to address questions of fact — whether the department systematically violated New Yorkers’ rights — and the question of remedies at the same time, saying it would have preferred to weigh in only after the former had been decided.
In its carefully worded 21-page statement, the Justice Department took no position on matters of fact in the case. But should the court find against the city, the Justice Department said, it would endorse the use of a court-appointed monitor. “The experience of the United States in enforcing police reform injunctions teaches that the appointment of an independent monitor is a critically important asset,” the department said.
The statement added: “A court-appointed monitor in this case would help the court ensure that, if any pattern or practice is found to exist, it is effectively and sustainably remedied.”
The judge in the case, Shira A. Scheindlin, is set to decide in the coming months whether such violations existed in the Police Department’s tactic of stopping, questioning and frisking New Yorkers.
The trial, which ended in late May after two months of testimony, has emerged as a flash point in the mayoral race, with candidates drawing stark lines over whether they would embrace the tactics, strongly associated with Mayor Michael R. Bloomberg, or seek to end them if elected.
At times during the trial, Judge Scheindlin appeared skeptical of crucial aspects of the city’s defense. In an earlier trial related to a smaller number of police stops in the Bronx, she found widespread constitutional violations.
Should Judge Scheindlin find similarly in this case, Floyd v. City of New York, the next step would be to order the Police Department to make changes.
Wednesday was the deadline for parties in the suit to file their final post-trial motions. Though not a party to the lawsuit, the Justice Department has the standing to offer its views in any federal case, to provide its interpretation of case law and opinion on the best course forward.
Civil rights advocates, as well as some local and federal elected officials, have long called for the Justice Department to get involved in monitoring the practices of the Police Department and its tactics for street stops. Before the Justice Department filed its papers, the mayor’s office echoed statements that had been made throughout the trial, describing New York as “the safest big city in the country,” thanks to the Police Department’s work, and saying that the administration would “continue giving them the support and tools they need to do their jobs.”
The Justice Department challenged the notion, often cited by Mr. Bloomberg and Police Commissioner Raymond W. Kelly, that a court-appointed monitor would diminish the Police Department’s ability to fight crime.
“In the experience of the United States,” the statement read, “reform through a court-ordered process improves public confidence, makes officers’ jobs safer, and increases the ability of the department to fight crime.”
The statement pointed to examples of several other cities in which monitors addressed court-ordered changes, including Seattle, Washington and Detroit. And it dismissed the suggestion that existing oversight mechanisms for the New York police were sufficient, should civil rights violations be found by the court, arguing that the existing structures focused on individual misconduct, not structural changes.
The lawsuit, brought by the Center for Constitutional Rights and others, claims that the Police Department has a policy of stopping and frisking black and Hispanic New Yorkers without suspicion of any criminality. Such stops of minorities are disproportionate to the black and Hispanic population and nearly 90 percent of the time result in no arrest or summons. Lawyers who brought the case argued that those facts provided evidence that the stops were unconstitutionally based on race or ethnicity.
City lawyers have responded that the high number of minority stops reflected the percentage of violent crimes committed by black and Hispanic men and, in some cases, was lower than would be expected based on descriptions of suspects. Mr. Kelly, who did not testify, and Mr. Bloomberg have strongly defended the Police Department’s practices, saying they were an integral part of reducing crime in the city.
Judge Can Impose Monitor over 'Stop and Frisk': Justice Department
By Devlin Barrett — Thursday, June 13th, 2013 ‘The Wall Street Journal’ / New York, NY
The Justice Department weighed in late Wednesday night on New York City's controversial stop and frisk policy, saying that a federal judge overseeing a trial on the issue does have the authority to impose an outside monitor if she finds the NYPD has violated the law.
In the filing by the Justice Department's civil rights division, government lawyers say they take no position on whether the city's stop and frisk practices run afoul of the Fourth Amendment's bar on unreasonable searches, or the Fourteenth Amendment's guarantee of equal protection under the law.
The Justice Department does argue, though, that contrary to the city's claims, the judge can order them to more strictly monitor their officers' conduct.
"Where there exist a pattern or practice of police misconduct, a court has broad discretion to enter injunctive relief aimed at remedying that conduct," the Justice Department filing argues.
In a trial in Manhattan federal court that began earlier this year, lawyers for the city have argued that the stop and frisk practices are lawful. The city has also argued the NYPD should not be required to have additional oversight, since the department already has an internal affairs bureau and a civilian complaint review board.
The Justice Department disputes those claims, saying those entities are poorly equipped to enforce stricter supervision of the department's stop and frisk practices.
"A court-appointed monitor in this case would help the court ensure that, if any pattern or practice is found to exist, it is effectively and substantially remedied," the Justice Department filing says.
A spokesman for Mayor Bloomberg said the city had not seen the court papers but said the NYPD's "exceptional professionalism" made New York the safest big city in the nation.
"Their work to cut crime to record lows and take illegal guns off the street has saved thousands of lives, and our Administration will continue giving them the support and tools they need to do their jobs and keep New Yorkers safe," spokesman John McCarthy said.
Michael Howard Saul contributed to this article
Feds urge an indy stop-frisk monitor
By DAVID SEIFMAN and BRUCE GOLDING — Thursday, June 13th, 2013 ‘The New York Post’
The feds stepped into the fight over the NYPD’s “stop and frisk” policy late last night, urging a judge to appoint an independent monitor if she finds that the department has been illegally targeting minorities for the controversial crime-fighting program.
In an 11 p.m. court filing, the Department of Justice’s Civil Rights Division said the government “takes no position on the fact-dependent first question of whether NYPD’s stop-and-frisk practices violate constitutional standards.”
But it said that if Manhattan federal Judge Shira Scheindlin rules against the cops and orders reforms, “the appointment of a monitor . . . may provide substantial assistance to the court and reduce unnecessary delays and litigation.”
Scheindlin is widely expected to rule against the city after the 10-week nonjury trial at which a dozen minority plaintiffs challenged stop-and-frisk.
She previously found after a related trial that the NYPD “systematically” violated the Constitution when stopping people outside Bronx apartment buildings enrolled in the “Clean Halls” anti-crime program.
In their 21-page “Statement of Interest of the United States,” the feds cite “decades of police reform efforts across the country” during which outside monitors successfully helped address civil-rights complaints.
Court papers note recently closed cases in Pittsburgh and Los Angeles, as well as ongoing efforts in Seattle, Detroit, East Haven, Conn., and the US Virgin Islands.
“In this case, for example, should the court order a remedy, a monitor can assess whether the policies adopted to prevent unconstitutional stops-and-frisks are adhered to in actual practice, and whether any required training is being delivered in a manner that is likely to be effective,” the filing says.
Ten weeks of testimony in the case brought by the Center for Constitutional Rights concluded on May 20.
City officials are worried that the feds’ move will give Scheindlin ammunition to order the toughest remedy.
“I don’t think the judge was going down the road [of naming a monitor]. This gives her the cover to do that,” said one source.
Bloomberg’s office defended the NYPD.
“New York is the safest big city in the country — and that’s thanks to the exceptional professionalism of the NYPD,” mayoral spokesman John McCarthy said last night.
“Their work to cut crime to record lows and take illegal guns off the street has saved thousands of lives, and our administration will continue giving them the support and tools they need to do their jobs and keep New Yorkers safe.”
Stop-and-frisk lawsuit could lead to federal oversight of New York City police -report
By Chris Francescani and David Ingram (Reuters) — Wednesday, June 12th, 2013; 11:49 p.m. EDT
(Reuters) - The U.S. Justice Department notified New York City officials on Wednesday that it plans to ask a federal judge for oversight of the city's police department if she determines its controversial stop-and-frisk policy is unconstitutional, according to a news report.
The New York Daily News report comes after the conclusion of a 10-week federal civil trial on the practice by New York City police of stopping people they suspect of unlawful activity and frisking those they suspect are carrying weapons.
U.S. District Judge Shira Scheindlin is expected to rule in the coming weeks.
Defenders of the tactics, including Mayor Michael Bloomberg, say the practice has helped to reduce crime. Opponents contend that stop-and-frisk targets minorities and violates their Fourth Amendment rights for protection against unreasonable searches and seizures.
A spokesman for the Department of Justice declined to comment. A spokesman for the New York Police Department was not immediately available late Wednesday.
Bloomberg spokesman John McCarthy said the office has not seen any papers yet but the administration continues to support the city's police department.
Overall police stops have shot up sharply during Bloomberg's administration - from 160,851 in 2003, Bloomberg's first year in office, to 685,724 in 2011. About half of the 2011 stops resulted in searches.
The lawsuit was filed in 2008 by the Center for Constitutional Rights on behalf of four black men who said they were stopped based on their race.
The case is David Floyd et al v. The City of New York, U.S. District Court, Southern District of New York, No. 08-1034.
(Editing by Tim Gaynor and Lisa Shumaker)
Opinion: Pro and Con
Eric Holder’s brave and welcome decision
Embattled AG's Justice Department seeks oversight of NYPD, involves administration in stop-and-frisk case
By Alex Pareene — Thursday, June 13th, 2013 ‘Salon Magazine’
The NYPD may soon get some unwelcome federal monitors according to the New York Daily News. The issue is stop-and-frisk, the widespread NYPD minority harassment program, the constitutionality of which U.S. District Court Judge Shira Schiendlin is expected to rule on shortly. If Schiendlin finds the practice prejudicial, the U.S. Department of Justice would like her to grant the Justice Department oversight over the cops.
New York city officials were told of Holder’s decision Wednesday, according to the News. On Tuesday, Mayor Michael Bloomberg and Police Commissioner Ray Kelly reportedly “vigorously objected to the plan in telephone conversations with Holder.”
The News reports that U.S. Attorney General Eric Holder’s office filed a brief yesterday requesting that if the NYPD loses the case and its stop-and-frisk policies are found to be illegal, “the court has wide discretion to enter injunctive relief,” which “may include the appointment of an independent monitor.” You can read the brief, signed by Assistant Attorney General for Civil Rights Thomas Perez here. Mayor Bloomberg is reportedly “outraged.”
The NYPD obviously needs a monitor. The city argues that the department’s own internal affairs bureau is oversight enough, but the IAB has failed to uncover or prosecute an array of recent examples of police misconduct and IAB veterans and plenty of cops who’ve dealt with the bureau say it’s slow, incompetent, and bordering on corrupt. New York’s Civilian Complaint Review Board is independent and thorough, but it also has no authority beyond issuing recommendations to the commissioner. A complete lack of accountability and oversight is part of Bloomberg’s governing philosophy, which holds that he should be able to appoint people who answer only to him, and then those people should be in charge forever. (There are various terms for this approach.)
Eric Holder has been expressing concern about the practices of the NYPD for some time now. In 2011 he said the Justice Department was “actively looking at” the NYPD’s extensive spying operation, though nothing came of the “looking,” possibly in part because Obama counterterrorism adviser (and now CIA director) John Brennan supports such surveillance. In 2012 Holder met with Congressional Black Caucus leaders and made it clear that he was open to a Justice Department investigation of the NYPD’s stop-and-frisk policy.
Holder’s Justice Department has actually had a very impressive record on civil rights cases. His Civil Rights Division, led by Thomas Perez, has not hesitated to investigate police departments for misconduct, and it has forced reforms in cities like in New Orleans. In March of this year, Perez announced an investigation into Cleveland police focusing on excessive force. Thomas Perez is decidedly one of the best things about the Obama administration. That he’d push the Justice Department to weigh in on the NYPD case, over the strong objections of Mayor Bloomberg, is laudable, especially because Obama himself has a strange obsession with winning the mayor’s favor.
What makes this even braver, if we could just this once use the term brave to describe a federal law enforcement brief, is that Perez is in the middle of a confirmation battle in the Senate. Obama nominated the attorney to be his next Secretary of Labor. Republicans have delayed and attempted to block Perez’s confirmation. Harry Reid reportedly won’t bring Perez’s nomination to the floor until July, and Republicans will almost certainly filibuster. The problem Republicans have with Perez is that, as head of the Justice Department’s Civil Rights division, Perez has gone around aggressively enforcing civil rights laws. His work on voting rights has been especially galling to Republicans. (The other problems Republicans have with him are that he declined to treat the New Black Panther Party seriously and also they just don’t want any Obama nominee, especially a properly progressive one, in charge of the Labor Department.)
It’s true that Republicans these days may hate Michael Bloomberg even more than they hate Barack Obama. And they hate him because he is a proud enemy of Liberty. But they mostly all hate him for the dumbest possible reasons — he has various convoluted regulatory plans to combat obesity! — and not because his vast paramilitary police department regularly ignores the Fourth Amendment. That is a thing they basically like about him, because the NYPD spends so much time and money spying on Muslims and because despite supposed rise of libertarianism in the GOP, a healthy authoritarian cop-worship is still the norm. Republicans and many Democrats don’t want anyone attempting to restrain Ray Kelly, even a bit.
Meanwhile, there’s a mayoral election on, and this should lead to some interesting responses. The most prominent Democratic candidates are both broadly pro-Kelly, but also opposed, rhetorically at least, to stop-and-frisk, his signature policy. Christine Quinn has promised to keep him on as commissioner, a promise that all her rivals have attacked her for. Anthony Weiner has staked out a bizarre middle ground position: he would like to keep Kelly but not as police commissioner. (Sanitation commissioner?) The other candidates, all of whom have less name recognition, oppose Kelly and would like to see an independent inspector general with authority to oversee the NYPD. Conservatives would like to see Kelly himself run for mayor, though thankfully he doesn’t seem inclined to do so.
The Justice Department’s request will, clearly, have major political consequences in the U.S. Senate and in the New York mayoral race. Ray Kelly is rarely challenged by anyone with power, and the man has a lot of friends and admirers. It’s also perhaps a reason to be thankful for Eric Holder, who is having quite a bad year so far. If this is part of how he says sorry, I’m all for it.
Thursday, June 13th, 2013 ‘The New York Daily News’ Editorial:
U.S. Attorney General Eric Holder wrongly slams NYPD on stop & frisk
Feds blindside the cops on a sound policing policy
The lawsuit challenging the NYPD’s program of stopping, questioning and sometimes frisking people came to a close at midnight Wednesday after pending for five years, four months and 12 days.
And, suddenly, as the clock ticked down to that final deadline, U.S. Attorney General Eric Holder put Mayor Bloomberg and Police Commissioner Ray Kelly on notice that the Justice Department was going to intervene in the case.
In phone calls that stunned both men, Holder said Tuesday that his civil rights lawyers would file papers telling the presiding judge that the feds favored putting the Police Department under a federal monitor should the judge find stop-and-frisk unconstitutional.
Holder offered the mayor of America’s largest city and the country’s most respected law enforcement professional no fair opportunity to respond. After listening to their strenuous objections, he decided only to delay a decision overnight, purportedly for further thought.
Of course, there really was none. Assistant Attorney General for Civil Rights Thomas Perez notified City Hall on Wednesday that the feds would go ahead exactly as planned and enter into the record a brief that, obviously, had been long in secret preparation.
Without consulting Kelly about the wisdom of stripping the police commissioner of authority over crimefighting strategies.
Without extending to Bloomberg the courtesy of a fair hearing on any topic he might find relevant, not least a mayor’s responsibility for maintaining public safety.
Without due regard for the very real danger that, in constraining perfectly valid police tactics, an aggressive monitor could place the city on a bloody trajectory of rising crime.
Holder’s imperious discourtesy toward Bloomberg and Kelly was breathtaking, and his sudden last-minute interest in the case smacks of raw politics rather than law.
Civil rights activists filed the stop-and-frisk suit way back on Jan. 31, 2008. A total of 1,959 days passed before Perez told City Hall that, indeed, Justice would step in.
That long span of time included the production of mountains of police records, expert analyses, numerous pre-trial rulings and a two-month trial that generated a 7,000-page transcript.
And not a peep from Holder.
Far from the courtroom, however, New York elected officials, critics of stop-and-frisk, lobbied Holder on the matter.
They got the hearing Holder denied to Bloomberg and Kelly.
An attorney general has broad power to present the government’s view to a judge if the U.S. has a substantial interest in a matter. Under that authority, Holder’s papers would go to Manhattan Federal Judge Shira Scheindlin, who’s had the case from the start.
Scheindlin has made no secret of her discomfort with the NYPD’s strategy. Still, she is charged with deciding whether the evidence actually meets the standards necessary for a constitutional violation.
While this is not a close call — the answer is that the proof fell far short — Scheindlin’s pronounced sympathies could lead her to conclude otherwise. In that event, she would order fixes, including possibly the appointment of a monitor.
In saying he would call on Scheindlin to appoint an overseer if the judge ruled against the NYPD, Holder set the stage for doing so on the verge of the judge’s midnight deadline for submitting arguments. He followed through after 11 p.m., thus denying Bloomberg and Kelly any chance of response in a clear abuse of process.
Thursday, June 13th, 2013 ‘The New York Post’ Editorial:
Holder cops out
You might think a US Attorney General who has so much to investigate in his own backyard — e.g., the IRS targeting of conservatives, or Justice’s own targeting of reporters as criminals — would be too busy or self-conscious to go after an enterprise as successful as the NYPD. Then again, a last-minute game-changer may be just what President Obama’s politics demands.
New York learned yesterday that Eric Holder’s Justice Department will be intervening on the side of those challenging the Police Department’s stop-and-frisk policy in federal court. The thinking is, correctly, that Justice’s intervention will give Judge Shira Scheindlin the cover to impose a monitor on the NYPD that the case itself hasn’t produced.
We won’t rehash here the arguments against such a monitor, which would essentially establish a rival authority to Police Commissioner Ray Kelly. Even in her own courtroom, with Judge Scheindlin energetically trying to help the plaintiffs prove otherwise, the police did a good job of explaining why stop-and-frisk is especially valuable for law-abiding citizens in minority communities, as well as discrediting key witnesses against the policy.
Yet while the feds’ case may be weak on substance, on the politics it helps the Obama administration with its liberal base. With even loyal bastions such as The New York Times now turning on the administration over its spying, this intervention gives the Gray Lady something to applaud.
Which would sure explain why the president keeps Eric Holder around.
Brooklyn North Homi: Allegations of Serious Serial Flaking
Several Murder Confessions Taken by Brooklyn Detective Have Similar Language
By FRANCES ROBLES — Thursday, June 13th, 2013 ‘The New York Times’
As the Brooklyn homicide detective Louis Scarcella told it, the suspect in a ruthless home invasion that left one man dead and two more people in a coma started talking after just a few minutes of questioning.
“You got it right,” the suspect, Jabbar Washington, said. “I was there.”
The phrase was straightforward and damning, introducing the central piece of evidence that sent him to prison for 25 years to life. At the 1997 trial, Mr. Scarcella told the jury that it was the easiest confession he had obtained in more than two decades working for the Police Department.
But if the interrogation was unique for him, the wording was not. In at least four more murder cases, suspects questioned by Mr. Scarcella began their confessions with either “you got it right” or “I was there.”
Mr. Scarcella, 61, was a member of the Brooklyn North Homicide squad who developed a reputation for eliciting confessions when no other detective could. But questions about his credibility have led the Brooklyn district attorney’s office to reopen all of his trial convictions.
The similarity of the confessions, which was discovered in a review of cases by The New York Times, raises new doubts about the statements that Mr. Scarcella presented and that the prosecutors used to win convictions in dozens of murder cases. One of the men, David Ranta, who had spent more than two decades arguing that he never made the confession attributed to him that began “I was there,” has already been released from prison.
Defense lawyers fighting the convictions say the resemblance of statements attributed to inmates who shared nothing in common makes it more likely that Mr. Scarcella fabricated evidence, laying the groundwork for cases to be dismissed and millions to be paid in wrongful conviction lawsuits.
“It’s sort of beyond belief that it would be coincidental,” said Steven Banks, chief lawyer for the Legal Aid Society, which is reviewing 20 cases handled by Mr. Scarcella.
Mr. Scarcella, a 26-year veteran who retired in 1999, stood by his record, saying he was one of the best detectives in the department. As for the similarities, he said: “I honestly don’t know what you’re talking about. I will say this again: I have never fabricated a confession in my life.”
In a previous interview, Mr. Scarcella said that because of Mr. Ranta’s recent exoneration, inmates now considered him a “get-out-of-jail-free key.”
However, records show that in many cases, the allegations of misconduct and manufactured confessions are not new.
Mr. Washington, who is still in prison for the 1995 killing of Ronald Ellis, took the stand in his trial and testified that Mr. Scarcella provided the script for the confession. The detective, he said, grabbed him by the neck and testicles and forced him to sign his name to a document the detective wrote. “He always said the cop fed him what to say,” said Mark Pollard, who was Mr. Washington’s lawyer at the trial.
Mr. Washington, who was 23 during the trial, had an alibi, and the survivors of the shooting were unable to identify him in court, leaving the confession as the crux of the prosecution’s case. Mr. Washington’s claim of a forced confession was undermined, prosecutors wrote in response to his appeal, by a video of the confession that showed he did not appear to be looking to Mr. Scarcella for cues.
“The D.A. broke the confession down and tried to show it was extemporaneous,” Mr. Pollard said. “But I would not accept these similarities as coincidence. It definitely doesn’t smell right.”
By then the language had already appeared in several other cases. One of them centered on a 1994 arson in Williamsburg in which two people died. The suspect, Hector Lopez, had been entangled in a dispute with his former girlfriend and her new boyfriend, both of whom survived, and was accused of setting the man’s building on fire.
After about 12 hours in custody, Mr. Scarcella said that Mr. Lopez began to weep and said: “You guys got it right.”
Mr. Lopez, who was confronted with other evidence like a gas can in his car, is serving 25 years to life at the Sullivan Correctional Facility in Fallsburg, N.Y. But his lawyer, William Loeb, wrote in an appeal that discrepancies between the confession and evidence suggested “the disturbing likelihood” that Mr. Scarcella had made up the confession.
Pierre Sussman, Mr. Ranta’s lawyer, said that was precisely what Mr. Scarcella did with Mr. Ranta, who in 1990 was an unemployed drug addict when the detective questioned him for the killing of a Hasidic rabbi. Mr. Scarcella testified that he was at central booking with Mr. Ranta when his prisoner did an about-face and decided to come clean about the robbery and shooting.
Mr. Scarcella said he scribbled the man’s exact words on the back of a manila envelope, starting with “I was there.”
Mr. Ranta, who has frequently said he never confessed to the detective, was exonerated in March after 23 years in prison. “If you take a look at statements given to Detective Scarcella, and they start out the same way — ‘I was there’ — and then follow with a narrative, that’s a huge problem,” Mr. Sussman said. “It’s a sign that it may be Scarcella’s words, and not the suspects’.”
Scholars who study police interrogations say it is not uncommon for confessions to include traces of the detective’s speech, particularly law enforcement jargon the suspect was unlikely to have used without prompting. In addition, sometimes a detective will prompt a person to admit being present at the crime scene, while still playing down the role in the crime, a technique known as minimizing, which has been cited as sometimes leading to false confessions.
“It’s hard to imagine all five people used the same exact words,” said Richard Leo, a University of San Francisco law professor who specializes in confessions. “It almost sounds like a template.”
The phrases still seemed etched in Mr. Scarcella’s memory. Even in spontaneous retellings of various confessions in recent years, he has reached for those exact words.
In an interview with The New York Post last month, he said he still remembered Mr. Ranta’s confession from a quarter century earlier: “I said: ‘You come from 66th Street. I come from 66th Street. We’re both Italian. Why don’t you tell me the truth?’ So he says, ‘Yeah, you’re right. I was there.’ ”
And talking about a different case during an appearance on the “Dr. Phil” television program in 2007, where he discussed the tactics he used to get suspects to admit their misdeeds, Mr. Scarcella recalled a similar conversation with a suspect. “He says to me, ‘Louis, you were right. I was there, but he kicked me, and I shot him by accident.’ I said, ‘Don’t you feel better now?’ And he’s now doing 37 ½ years to life.”
Charles J. Hynes, the Brooklyn district attorney, has declined to publicly identify the 50 cases that are under review by the office’s Conviction Integrity Unit. So it is unclear how many more may have featured such language.
“We are looking for certain patterns,” said Jerry Schmetterer, a spokesman for the office. The wording “may be a pattern.”
An earlier examination by The Times also showed that Mr. Scarcella used the same crack-addicted prostitute as a witness in a series of unrelated murder cases.
The Legal Aid Society was informed by the office that 20 of the cases under review involved the agency’s clients. At the request of The Times, the organization’s lawyers reviewed those cases and found two with similar wording at the start of the confession. They declined to reveal the names but said both defendants served about 14 years in prison for shootings that took place in the 1990s, six years apart.
“One of the confessions includes ‘I was there’ and the other says, ‘I want to tell you the truth: you are right,’ ” Mr. Banks said. “Given the patterns that are emerging, clearly that gives great concern about the detective’s techniques.”
NYPD $$ Lawyer Lotto $$ Jackpot Bonanzas:
Oct. 2003 Police Pervert of the Month: Former 123 PDS Det. Richard Vecchio
Fired detective who took XXX pics of David Bowie's stepdaughter Stacia Lipka sues to keep pension
Lewd photos of David Bowie’s stepdaughter, who had been raped, were found in Richard Vecchio's locker along with a bottle of whiskey, a porno magazine and photos of Britney Spears.
By Corky Siemaszko AND Barbara Ross — Thursday, June 13th, 2013 ‘The New York Daily News’
What’s wrong with this picture?
A former detective who was canned for allegedly taking sexually explicit photos of rocker David Bowie’s stepdaughter after she had been raped — and a photo of another, topless woman in police custody — is suing the New York Police Department to get his pension.
Richard Vecchio claims he would have racked up over 20 years on the job had he not been fired for official misconduct.
“His retirement benefits should not have been diminished in any way as a result of that termination,” his suit in Manhattan Supreme Court states.
And Vecchio is suing even though a state appellate court last year upheld the NYPD’s decision to fire him for “the criminal offense of official misconduct.”
The charges that Vecchio “violated several provisions of the Patrol Guide by, among other things, improperly taking and possessing nude photos of an arrestee and a rape victim are supported by substantial evidence,” the court ruled.
There was no immediate comment from the NYPD.
Vecchio was told to turn in his gun and badge in 2004 after prosecutors accused him of taking 15 naked pictures of then 25-year-old Stacia Lipka, whose mother was Bowie’s ex-wife.
The photos of Lipka were taken at a Staten Island hospital room. Vecchio and his partner, Detective John Holbert, were investigating Lipka’s rape.
Vecchio was also accused of snapping lewd photos of then 20-year-old Kristina Sellers after she had been stopped because police thought she left the scene of a 2003 accident. She was later cleared of that.
The sick snaps were later found in Vecchio's locker at the 123rd Precinct along with an X-rated magazine, a bottle of whiskey, and pictures of Britney Spears.
Vecchio was acquitted in a bench trial, but his two accusers went public and sued. The city wound up settling, paying $80,000 to Lipka and another $70,000 to Sellers.
Meanwhile, the NYPD fired Vecchio in September 2008 after he was found guilty of 11 out of 19 disciplinary charges and partially guilty of four others in a departmental trial.
Vecchio appealed. But it wasn’t until April 2012 that the appellate division ruled on the case and upheld all but two of the charges for which he was found guilty.
The court also said Vecchie was a highly decorated cop with an otherwise spotless record whose family should not be penalized for his “aberrant” behavior.
Armed with that plug, Vecchio in January wrote the NYPD demanding back pay and restoration to duty.
Two months later, the NYPD said no and fired him again — effective 2008.
Ex-cop who kept naked photos of rape victim suing NYPD for back pay & retirement benefits
BY JULIA MARSH — Thursday, June 13th, 2013 ‘The New York Post’
A former NYPD detective tossed from the force for keeping naked photos of a rape victim in 2008 -- who happened to be rocker David Bowie's stepdaughter – is now suing the NYPD for back pay and full retirement benefits.
Richard Vecchio, a married Staten Island father, won a victory last spring when an appeals court found that his termination without a pension would have a “devastating financial impact” on his family.
But the Appellate Division left his reinstatement up to Police Commissioner Ray Kelly. The top cop promptly reaffirmed Vecchio’s ouster in March and denied his request for a full pension.
Vechhio had served four years short of the required 20 for full benefits when he was canned in 2008. Kelly also rejected his plea for back pay from 2008, the time that his original wrongful termination suit was winding through the legal process.
In his suit, Vecchio argues that “there was no substantial evidence of his guilt and the penalty imposed of his termination from the NYPD was an abuse of discretion.”
Now he wants his retirement date to coincide with Kelly's second firing of him -- so he'll qualify for a full pension. He’s due the money “as someone with over 20 years of credible service,” the tarnished cop claims in court papers.
The appeals court only dismissed two of 11 departmental charges against the 19-year veteran, for leaving work early and falsifying records.
But it upheld the most serious violations including his harboring of 15 nude snapshots of Stacia Lipka, the daughter of Bowie’s former wife Angela, which were taken at a city hospital after she’d been raped.
A second sustained infraction also related to a photo—this time it was the bare, pierced nipple of a female suspect.
A spokeswoman with the city’s law department said, “We think this petitioner was correctly fired on both occasions and that his latest claim lacks merit.”
48th Precinct Sergeant Agy Peña
NYPD Mobilizes For Cancer-Stricken Sgt. Facing A $30,000 Medical Bill
By Unnamed Author(s) — Wednesday, June 12th, 2013 ‘Fox News Latino’
New York police officers are rallying around one of their own who racked up around $30,000 in medical bills after being treated for Stage 3 brain cancer in October.
Agy Peña, 30, said she went to the doctor in October to address her problem of frequent headaches and fainting episodes, but came out with worse news than she was expecting.
“I had been getting headaches too many times,” Peña told the New York Post a mere two weeks after reclaiming her ability to speak, which she lost after surgery. “The doctor sent me for an MRI. A few hours later, I went to take the disc to the doctor. He called me inside and told the horrific news – that I had a brain tumor on the left side. It was terrifying.”
Her tumor was classified as anaplastic astrocytoma. Two days after her diagnosis, Peña, accompanied by her mother and boyfriend, went to the North Shore Long Island Jewish Hospital to undergo surgery.
The doctors removed 95 percent of the tumor from the sergeant’s brain, leaving the remaining 5 percent in order to avoid permanent brain damage and loss of motor skills. However, despite the care and precision used to remove most of the cancerous growth, Peña had to face physical and speech therapy because she was unable to talk and very weak when she woke up.
“When they do surgery on the left side of the brain, your right side gets weak,” she told the Post. “I couldn’t grasp anything on my right side.”
She has since gone through different kinds of rehabilitation as well as chemotherapy so that she can regain her old life. Peña has returned to the gym with her sights set on eventually being able to participate in a Zumba workout.
She finally completed speech therapy in May, but she said it wasn’t an easy process.
“I could think of it all in my head, but I couldn’t speak it,” Peña said, according to Metro newspaper in New York. . “My brain was kind of going like a hundred miles an hour.”
Radiation lasted until mid-January for the nine-year veteran of the force, and she continues to undergo chemotherapy for five continuous days with 28 days off for recovery. Although the tumor has shrunk, an unidentifiable source has produced liquid in Peña’s brain.
The medical bills associated with the procedure and treatments have been challenging for the homeowner, especially since her insurance won’t cover around $22,000 of her tab.
She has been able to keep up with payments, but in order to assist their “sister in blue,” Peña’s best friend, Sgt. Alexandra Sarubbi, in addition to several other officers, organized a fundraiser to take place at the end of June.
Peña said her family and friends have been supportive from the very beginning.
“I was by myself,” she told Metro. “I didn’t know what to do. I called my mom right away, and my boyfriend, and everyone was so supportive.”
Peña is currently on indefinite sick leave and looks forward to eventually getting back to work at the 48th precinct in the Bronx. She refuses to leave the force on disability because can’t imagine what she would do otherwise.
“I thought [being a cop] was the most exciting thing that I could do,” she told Metro. “I didn’t want to have a job that I would wake up to and, you know, go to an office everyday and sit there.”
New York considers crackdown on counterfeit luxury
By VERENA DOBNIK (The Associated Press) — Thursday, June 13th, 2013; 2:49 a.m. EDT
NEW YORK — Bargain hunters from around the world flock to Manhattan's Chinatown for legally sold bags, jewelry and other accessories bursting onto sidewalks from storefronts along Canal Street.
But hidden around the city are goods labeled "Prada" or "Louis Vuitton" or some other luxury brand — counterfeits sold for a pittance. In some cases, handbags going for $2,000 on Fifth Avenue can be had downtown for, say, $20.
They're seductive fakes.
And until now, the law enforcement focus has been on catching the sellers.
If a proposed bill passes the City Council, customers caught buying counterfeits also could be punished with a fine of up to $1,000, or up to a year in prison.
On the street, day after day, a hard-sell routine is repeated.
"Rolex! Chanel!" a man on a street corner whispers to a passerby.
"Get this before the police do!" he adds with a grin.
Buyers are walked to a designated spot where they're quietly shown photos of the desired goods. Choices are then signaled to another person who disappears to an undisclosed location — a vendor's back room, a nearby apartment, the back of a van.
The item arrives within minutes, and cash exchanges hands.
A City Council public hearing was scheduled for Thursday to examine the age-old counterfeit business. Council member Margaret Chin, who introduced the bill, said counterfeits deprive the city of at least $1 billion in tax revenue a year that could support community improvements. The Democratic lawmaker expects a vote sometime in the coming months.
For years in Chinatown, logo-bearing items were openly displayed, spread across sidewalks in burlap scooped up by vendors who'd run if police appeared.
Only the most daring do that now, since Mayor Michael Bloomberg and the police stepped up well-organized raids in recent years that have resulted in eliminating whole blocks of shops and demolishing a building that served as a warehouse.
The New York legislation, if passed, would be the first in the United States to criminalize the purchase of counterfeits, Salembier said. "I support it completely, it is absolutely necessary."
NYPD Communications Div 911 Computer Dispatch System
NYC’s 911 dispatch system ‘just doesn’t work,’ firefighter union leader says
‘They had too many problems not to admit it,’ said Steve Cassidy, firefighter union head. He also blasted city officials who blamed a lone EMS worker for a four-minute delay in getting an ambulance to the scene of an upper West Side crash that killed 4-year-old Ariel Russo.
By Ryan Sit , Kerry Burke AND Ginger Adams Otis — Thursday, June 13th, 2013 ‘The New York Daily News’
New York City has “flushed hundreds of millions of dollars down the toilet” on a 911 computer dispatch system that doesn’t work, firefighter union head Steve Cassidy charged Wednesday.
Cassidy, speaking to the Daily News during a massive labor rally outside City Hall, said the expensive upgrade of 911 software was another failed Bloomberg initiative.
“They had too many problems not to admit it,” Cassidy said. “The system doesn’t work.”
“A little honesty, a little sunlight would be helpful,” said the union leader, who has challenged the FDNY in the past on the accuracy of its response-time data.
Cassidy compared the bloated Emergency Medical Service overhaul costs — well over budget at $2 billion — to the CityTime project
He also blasted city officials who blamed a lone EMS worker for a four-minute delay in getting an ambulance to the scene of an upper West Side crash that killed 4-year-old Ariel Russo.
“They are so tin-eared when it comes to criticism. Instead of saying, ‘We’re going to figure this out,’ they blame a [911 operator] with a 23-year unblemished record,” Cassidy said.
The FDNY has maintained that human error was behind the delay June 4, but promised a thorough investigation, including interviewing employees under oath. Ariel was semiconscious at W. 97th St. and Amsterdam Ave., as cops repeatedly asked for an ambulance. She was hit by an SUV driven by a 17-year-old unlicensed driver.
As first reported by The News, Sofia Russo, the little girl’s mother, has filed a notice of claim and plans to sue the city for $40 million.
A spokeswoman for the city Law Department called it a “terribly tragic” case.
“The city’s thoughts are with Ariel’s family. We haven’t been served yet but will review the claim. The Fire Department is also conducting an investigation into the matter,” the spokeswoman said.
Police Commissioner Raymond Kelly said that to the best of his knowledge, the 911 call was passed from the NYPD operator to EMS in the “normal” amount of time.
“Somehow it wasn’t dispatched in a timely fashion. It’s now an issue for the Fire Department,” Kelly said.
But the unions that represent NYPD and EMS operators have said the pricey new 911 computer dispatch system — called ICAD — has caused all kinds of technical glitches since it was installed late last month.
Brooklyn D.A. Charles J. Hynes
Brooklyn Prosecutor to Testify in Suit Against Him Amid Re-election Bid
By MOSI SECRET — Thursday, June 13th, 2013 ‘The New York Times’
The Brooklyn district attorney must testify about allegations of misconduct in his office, just weeks before the Democratic primary, in which he is running for re-election, a federal magistrate judge ruled on Wednesday.
The ruling came in the case of Jabbar Collins, who has filed a civil rights lawsuit against the office of District Attorney Charles J. Hynes.
Mr. Collins won his release after serving 16 years in prison for a murder he said he did not commit. He is seeking to prove not only that there was misconduct in his case, but also that Mr. Hynes’s office was engaged in widespread abuses that tainted other cases over a 20-year period.
The judge, Robert M. Levy, ordered Mr. Hynes to testify in a deposition the week of Aug. 19; the primary is scheduled for Sept. 10.
A lawyer for the city, Arthur G. Larkin, argued that the judge should order Mr. Collins’s lawyer, Joel B. Rudin, to give Mr. Hynes notice of which cases he intended to ask questions about so that Mr. Hynes could refresh his memory.
“There has to be some mechanism in place to protect the office from the misuse of those kinds of questions and answers,” Mr. Larkin said, adding that they would be used by Mr. Rudin “to embarrass” Mr. Hynes.
But Judge Levy said, “I don’t think it’s the court’s role to stifle speech in that way.”
Judge Levy also ordered the deposition of Michael F. Vecchione, a top deputy in the district attorney’s office who has also been accused of wrongdoing.
Mr. Collins said he would face Mr. Hynes at the deposition for the first time since he was released from prison.
“I think it’s finally vindication to confront him,” Mr. Collins said, “and have him answer questions under oath about why he permitted the horrendous misconduct in my case to occur.”
Group: More LI cops qualify for 6-figure pension
By PATRICK WHITTLE — Thursday, June 13th, 2013 ‘New York Newsday’ / Melville, L.I.
One out of every six police officers and firefighters who retired from state and local agencies outside New York City last year qualified for an annual pension of greater than $100,000, according to a report released Wednesday.
The ratio was even higher in Nassau County, with 75 of 133 retirees qualifying, and Suffolk County, where 43 of 126 did, according to the report by Empire Center for New York State Policy. Statewide, 202 of 1,225 retirees qualified for pensions greater than $100,000.
The statewide figure also is an increase from 2011, when it was one in 10, said representatives from the organization, a wing of the Manhattan Institute for Policy Research, a conservative think tank.
Empire Center released the data in part to show that the percentage of six-figure pensions among police and firefighters is much greater than for municipal workers in the larger Employee Retirement System, said Tim Hoefer, director of the Empire Center. Less than half a percent of 17,156 first-time ERS retirees qualified for six-figure pensions in 2012, he said.
"The defined pension system, is, in the long run, unaffordable," Hoefer said, adding that "the Nassau and Suffolk ratios blow the statewide ratio out of the water."
Police union officials on Long Island, including Suffolk PBA president Noel DiGerolamo, criticized the Empire Center report, saying police and firefighters retire with six-figure pensions only after working for decades.
"Pensions are not given out like candy -- they are earned, and they are earned over a period of 20, 30 and sometimes 40 years," DiGerolamo said.
James Carver, president of the Nassau PBA, said the rise in six-figure pensions is tied to the increase in departmental overtime, which was spurred by staffing reductions.
Nassau's overtime bill rose 14.7 percent to $97.5 million last year, compared with $85 million in 2011. Nassau police staff decreased from just over 2,700 in January 2009 to just over 2,200 now, Carver said. "This is a trend that is becoming more frequent due to the fact that police departments are not staffed to the point they used to be," he said.
Overtime currently plays a role in determining pension payments. But a new set of pension benefits for new employees, called Tier 6, increases the retirement age and the number of years an employee needs before becoming vested in the system, calculates final average salary over more years and prohibits the use of overtime to calculate annual pension benefits.
Empire Center also released the total values of the maximum allowable pension benefits for police and firefighters for state and local agencies around New York. The Empire Center retirement values are the maximum allowable benefits and not necessarily what a retiree will collect. Actual benefits can be less if a retiree withholds funds for their survivors.
Nassau County paid 3,484 retirees up to $226.1 million -- the highest figure in the state -- in fiscal 2012-2013, the center said, while Suffolk County was third, with 2,612 retirees earning up to $160.4 million.
With Yancey Roy, Paul LaRocco and Robert Brodsky
Police Agencies Are Assembling Records of DNA
By JOSEPH GOLDSTEIN — Thursday, June 13th, 2013 ‘The New York Times’
Slowly, and largely under the radar, a growing number of local law enforcement agencies across the country have moved into what had previously been the domain of the F.B.I. and state crime labs — amassing their own DNA databases of potential suspects, some collected with the donors’ knowledge, and some without it.
And that trend — coming at a time of heightened privacy concerns after recent revelations of secret federal surveillance of telephone calls and Internet traffic — is expected only to accelerate after the Supreme Court’s recent decision upholding a Maryland statute allowing the authorities to collect DNA samples from those arrested for serious crimes.
These local databases operate under their own rules, providing the police much more leeway than state and federal regulations. And the police sometimes collect samples from far more than those convicted of or arrested for serious offenses — in some cases, innocent victims of crimes who do not necessarily realize their DNA will be saved for future searches.
New York City has amassed a database with the profiles of 11,000 crime suspects. In Orange County, Calif., the district attorney’s office has 90,000 profiles, many obtained from low-level defendants who give DNA as part of a plea bargain or in return for having the charges against them dropped. In Central Florida, several law enforcement agencies have pooled their DNA databases. A Baltimore database contains DNA from more than 3,000 homicide victims.
These law enforcement agencies are no longer content to rely solely on the highly regulated network of state and federal DNA databases, which have been more than two decades in the making and represent one of the most significant developments in the history of law enforcement in this country.
The reasons vary. Some police chiefs are frustrated with the time it can take for state crime labs to test evidence and enter DNA profiles into the existing databases. Others want to compile DNA profiles from suspects or low-level offenders long before their DNA might be captured by the state or national databases, which typically require conviction or arrest.
“Unfortunately, what goes into the national database are mostly reference swabs of people who are going to prison,” said Jay Whitt of the company DNA:SI Labs, which sells DNA testing and database services to police departments. “They’re not the ones we’re dealing with day in day out, the ones still on the street just slipping under the radar.”
The rise in these local databases has aroused concerns among some critics, worried about both the lax rules governing them and the privacy issues they raise.
“We have been warning law enforcement that when public attention began to focus on these rogue, unregulated databases, people would be disturbed,” said Barry Scheck, a co-director of the Innocence Project, which seeks to exonerate wrongfully convicted prisoners. “Law enforcement has just gone ahead and started collecting DNA samples from suspects in an unregulated fashion.”
For their part, law enforcement officials say that the crime-solving benefits of local databases are dramatic.
“Our take is that it’s good for law enforcement and good for the community,” said Doug Muldoon, police chief of Palm Bay, a city of about 100,000 in Central Florida, about its database, which has produced 1,000 matches. He said his officers could now use DNA to address the crime conditions “in our community — property crimes and burglaries.” State crime labs can take months to analyze evidence from low-level felonies like that, he said.
As local authorities devise their own policies, they are increasingly taking DNA from people on the mere suspicion of a crime, long before any arrest, and holding on to it regardless of the outcome. Often detectives get DNA samples simply by asking suspects for them.
Other times, investigators take DNA surreptitiously, from discarded trash. Or the DNA might originate from a warrant issued in a specific case, authorizing the authorities to compare it against crime scene evidence — with the resulting profile then stored in a database for future use.
In some jurisdictions, it is not only suspects whose DNA goes into the database, but occasionally victims, too.
“If an officer goes to your house on a burglary, they will swab a door handle and then they will ask, ‘Can we get a sample from the homeowner so we can eliminate them as the source?’ ” Chief Muldoon said. “They say, ‘Sure.’ ”
The homeowner’s sample goes into the database, too, Chief Muldoon said. In many jurisdictions, so would samples from others even briefly considered potential suspects.
“That’s so profoundly disturbing — that you would give DNA to the police to clear yourself and then once cleared, the police use it to investigate you for other crimes, and retain it indefinitely,” said Stephen B. Mercer, the chief attorney of the forensics division of the Maryland public defender’s office and one of the lawyers involved in the case that resulted in the recent Supreme Court decision on DNA. “If that doesn’t strike at a core value of privacy, I don’t know what does.”
The Supreme Court’s decision last week, in Maryland v. King, was its first to squarely address DNA collection and databanking. While that decision said nothing explicit about the authority of local law enforcement to keep DNA databases, it could well encourage local jurisdictions to push ahead, several experts said.
“In light of the Supreme Court decision, more and more organizations are going to be doing this,” said Frederick Harran, the public safety director in Bensalem Township, a Philadelphia suburb that is aggressively building its own DNA database.
The court’s decision readily accepted the utility of DNA collection as a routine station house booking procedure, comparing it to fingerprinting.
“King is a green light,” said Erin E. Murphy, a New York University law professor who has written about DNA databases and DNA profiling. “It’s a ringing endorsement of DNA testing, and many law enforcement agencies would see this as a dramatic opportunity to expand DNA collection.”
It is not clear how many local jurisdictions maintain DNA databases. DNA SI Labs provides databanks for nine police departments, including those in Bensalem and Palm Bay, Mr. Whitt said, and has contracts with a dozen other departments to build more.
Palm Bay shares its database of 15,000 profiles with nearby departments, creating a regional pool. It is more common for prosecutors, the police and local crime labs to maintain their own DNA data, typically from suspects, which may be ineligible for upload to the national database.
Few states have laws regarding local DNA databases. Alaska prohibits them. California and Hawaii are explicit in not precluding them. In many states, including New York, the law is silent on the issue. And there is little consensus about what DNA retention policies are appropriate at the local level.
“There really are no rules as to what you can specifically keep,” said Jill Spriggs, who runs the Sacramento district attorney’s crime lab. “The forensic community is all over the board.”
The issues raised by these local databases include what type of DNA testing should be permitted. In Denver, which keeps a local database, the district attorney, Mitchell R. Morrissey, is a leading proponent of familial DNA searching. The technique uses special software not to identify matches, but for clues as to whether a relative of a person whose DNA is on file may be the source of crime scene DNA.
Because local databases operate without the stricter rules governing federal and local ones, local authorities have been able to set the pace for how DNA is collected and used in criminal investigations. That pace, experts say, could accelerate if rapid DNA testing devices capable of quickly developing DNA profiles from samples are deployed in station houses.
The ability to very quickly generate DNA profiles, experts say, could provide a greater incentive for local authorities to build and maintain their own database.
Mentioned in last week’s Supreme Court opinion, such technology is not yet generally in the hands of law enforcement, although the Palm Bay Police Department is field testing one such device.
Eyewitness Identification: 84% of All U.S. Police Agencies Have No Written Eyewitness ID Policies
Eyewitness rules ignored, wrongful convictions result
By Kevin Johnson — Wednesday, June 12th, 2013 ‘USA Today’
WASHINGTON — More than four out of five police agencies in the U.S. have no written policies for handling eyewitness identifications despite long-standing federal guidelines, according to a report obtained by USA TODAY.
The findings in the National Institute of Justice report, come as flaws in eyewitness identification represent the single greatest cause of wrongful conviction, contributing to 75% of convictions overturned through DNA testing, according to the Innocence Project, which uses DNA testing to challenge criminal convictions. More than 300 people have been exonerated since 1989 through post-conviction DNA testing.
The report, which was produced for the Justice Department's research arm by the Police Executive Research Forum, is the first national assessment of eyewitness identification standards. In it, 84% of police agencies reported that they had no written policy for conducting live suspect lineups, and slightly more than 64% said they had no formal standard for administering photo displays of potential suspects.
Though witnesses always have been an integral part of criminal investigations, there has been "growing recognition" that eyewitness identifications are often unreliable, according to the NIJ report. Some of the problems have been associated with faulty memories of specific incidents and unwitting or undue influence exerted by authorities investigating the crimes.
"When the credibility of the criminal justice system is being subject to legitimate questions, this is one issue we really need to get right," said Chuck Wexler, executive director of the research forum whose group compiled data from 619 police agencies over 15 months. "The procedure (for eyewitness identification) clearly hasn't received the rigorous study that it needs."
Police agencies reported the lack of standardization despite 1999 National Institute of Justice guidelines that urged law enforcement to improve policies for how witnesses are used to identify suspects.
The guidelines emphasized the benefit of "blind" testing in lineups — that is, lineups conducted by administrators who do not know the identities of the suspects, avoiding improper influence. But the report found that nearly 70% of police agencies still use officers with knowledge of the suspects in photo lineups, and 90% of agencies use "non-blind" administrators in live lineups.
The problems, according to the report, are especially persistent in small agencies. But even in large agencies — with 500 or more officers — 25% reported no policies for conducting photo lineup presentations, and fully half of the responding agencies had no policies for live lineups.
"It is important for police and other justice system officials to exercise caution when using eyewitness identification evidence, particularly in cases were an eyewitness identification is the sole evidence of guilt," the report concluded.
Barry Scheck, co-director of the Innocence Project, characterized the findings as "extremely disturbing."
"These findings are actually worse than we thought they would be," Scheck said, adding that at a minimum, law enforcement agencies should ensure that lineups are being administered by officers who do not know the identity of the suspect to guard against intentional or unintentional influence.
"When you don't know who the suspect is, you are going to get a better answer," he said. "All of the major police organizations have agreed that these best practices not only protect the wrongfully convicted, but they also protect the police."
For lineup standards advocates, David Wiggins' wrongful conviction in 1989 in the sexual assault of a 14-year-old child represents a real-life casualty of a flawed system.
Detained on an unrelated case, Wiggins volunteered to participate in a live lineup, believing that he could "clear up any confusion and everything would be all right."
"That ain't the way it went," said Wiggins, who spent 23 years in prison for the crime before he was exonerated last October.
While viewing a photo array, the young victim, whose face was covered during much of the attack, said Wiggins looked familiar. Wiggins was placed in a live lineup, the only potential suspect included in the live lineup from the previous photo display.
Wiggins' attorney did not challenge the lineup procedures, which were not administered under "blind" conditions, according to the Innocence Project. The attorney did not offer expert testimony to question the identification.
"At trial, they (prosecutors) made it look so good, I felt guilty," said Wiggins, who was later exonerated with the assistance of DNA testing.
"I don't blame her," said Wiggins, who has met with the victim since his release. "She said, 'I feel guilty.' I told her it was all right and that it didn't change the fact that she was a victim."
U.S. officials push cellphone makers to add theft deterrents
By Karen Freifeld (The Associated Press) — Thursday, June 13th, 2013; 9:16 a.m. EDT
NEW YORK (Reuters) - U.S. state and city officials are banding together to pressure cellphone makers to adopt technology, including a "kill switch" to disable stolen phones, that would deter rampant theft of the devices.
Authorities have criticized cellphone carriers and handset makers for their perceived unwillingness to make changes to technology to combat the problem.
A new coalition slated to be announced on Thursday by New York Attorney General Eric Schneiderman and San Francisco District Attorney George Gascon will analyze patterns behind the thefts and work with Apple Inc and other smartphone makers to create "kill" switches that would render devices inoperable if they are stolen.
Cellphone theft has become an escalating and increasingly violent problem, according to law enforcement authorities. About half of San Francisco's robberies last year, for instance, involved stolen mobile devices, according to Gascon. One study found that lost and stolen cellphones cost consumers $30 billion last year.
The initiative to combat what has been dubbed "Apple-picking" was expected to be announced before a meeting in New York on Thursday with Schneiderman, Gascon and representatives of Apple, Samsung Electronics Co, and Google Inc's Motorola Mobility and Microsoft Corp.
"This nationwide coalition of leaders is committed to doing everything in our power to encourage industry to be good corporate citizens and take responsible steps to ensure the safety of our consumers," Schneiderman said in a statement obtained by Reuters.
Aside from New York and San Francisco, the new coalition includes attorneys general from Illinois, Massachusetts, Delaware, Minnesota, Connecticut, Nebraska and Hawaii, and district attorneys, police and other officials from cities including Philadelphia, Boston and Chicago.
Amid pressure from authorities, Apple announced on Monday that it would add a new "activation lock" feature in its new mobile software.
The new feature, available with the launch of i0S 7 this autumn, will require a legitimate owner's ID and password before an iPhone can be wiped clean or re-activated after being remotely erased.
(Editing by Barbara Goldberg and Maureen Bavdek)
Smartphone security: Law enforcement to issue call for help from tech companies
By Unnamed Author(s) (CBS News - New York) — Thursday, June 13th, 2013; 10:06 a.m. EDT
(CBS News) In the U.S., one-third of robberies involve the theft of a mobile device. Top law enforcement officials from New York and San Francisco will ask for help on Thursday from the companies that make those devices. They want smartphone makers to be smarter about security.
More than half of all Americans now carry smartphones and that makes them potential targets for thieves. According to Consumer Reports, 1.6 million Americans had their smartphones stolen last year. In San Francisco, District Attorney George Gascon says nearly half the robberies in 2012 targeted cell phones, and many of the thefts were violent.
Gascon said, "It could be at gunpoint, it could be a knife, it could be a punch. ... A lot of people being hurt. We had one tourist who actually got stabbed."
When Gascon and New York Attorney General Eric Schneiderman meet with smartphone makers Apple, Google, Samsung and Microsoft, they will be looking for details on how companies plan to fight the crime wave.
In a presentation this week, Apple said the so-called "kill switch" technology will be part of iPhone software available in the fall.
Craig Federighi, senior vice president of software engineering at the tech company, said, "Now with activation lock, if a thief tries to turn off 'find my iPhone' or if they even wipe the device entirely, they will not be able to reactivate it."
But CNET editor Molly Wood found Apple's announcement short on details. "We don't know very much about this feature," she said. "Presumably this would let you send a signal to that phone wherever it was so that it would deactivate the phone, and only the owner could get in with some sort of a passcode or maybe a biometric. We're not exactly sure what mechanism."
An iPhone stolen on the streets of San Francisco can quickly end up for sale on the black market half-way around the world. Now the question is, can a kill switch kill what's become a huge criminal enterprise?
The technology could be a game-changer, according to CBS News senior correspondent John Miller, a former New York Police Department deputy commissioner.
"You've got to remember, since 1994 crime has been steadily decreasing across the country because of new police strategies and techniques. The only thing we've seen go up across the country -- you saw the spike in New York, Washington, and Milwaukee, and San Francisco, was suddenly robbery and larceny. And they looked at [it] and said, 'What is driving this?' and it was all smartphone thefts, and the bulk of it was iPhone thefts and other Apple products. ... Every time there was a new iteration there was another spike because, of course, everybody wanted to get the new phone, so for police this is a big problem."
However, phone companies have historically been resistant to increasing security measures because, according to Miller, it's about the company's bottom line.
"The phone companies, the developers, the Apples, the Samsungs, and the Motorolas, they're all very good when they figure out something that's either making them lose money -- of fixing that so it stops -- or something that's going to make them money. They can move very quickly. But in this case, it was kind of another thing. Not only were they not losing money from the phone thefts, but everybody who had their phone stolen had to go out and do what? Had to go out and buy a new phone, so it's not a matter of urgency."
City officials and politicians advocated for tech companies to make the cell phones completely inactive if they're stolen. Miller explained, "(They said,) 'The minute you make the smartphone a dumb phone, a paper weight once it's stolen, the thefts stop.' Because if the thief can't sell it, it's no good.
"Why do they not break into cars every night and steal radios out of them? Because the people who make cars and radios made it so when you rip radio out, it won't work again."
Obama's Assault on the 2nd Amendment
White House Makes Moves to Bolster Gun Safety
By JENNIFER STEINHAUER — Thursday, June 13th, 2013 ‘The New York Times’
WASHINGTON — Six months after the mass shooting in Newtown, Conn., and with no major gun legislation on the horizon in Congress, the White House is quietly moving forward on an executive package of gun safety measures.
The package, which includes 23 executive actions announced by President Obama earlier this year, is intended to bolster the nation’s database used for background checks and make it harder for criminals and people with mental illnesses to get guns.
Among other things, the executive orders relax health care privacy regulations that some state executives say prevent them from putting the names of those Americans with mental health records into the database. The orders also give states more money to help them add data to the system and compel federal agencies to share more mental health data on workers. The goal is to add thousands of new people into the database — those with a history of mental illness, for example — who would not legally be allowed to buy a gun under current law.
Gun control groups said that they admired the efforts, but that they would never carry the weight of legislation to expand the number of gun buyers who are subjected to the background check system. “Everything they have done helps,” said Mark Glaze, the director of Mayors Against Illegal Guns. “They are important and significant and will make a big difference, but the biggest reduction in gun violence will come when every American gets a background check.”
This week, families from Newtown visited Capitol Hill to press for new legislation, while B. Todd Jones, Mr. Obama’s choice to head the embattled Bureau of Alcohol, Tobacco, Firearms and Explosives, endured a testy nomination hearing.
“We’ve only just finished round one in our fight to get Congress to pass common-sense measures to save lives, and we will continue to join 90 percent of Americans in calling on them to close loopholes in the background check system,” Denis McDonough, Mr. Obama’s White House chief of staff, said Wednesday in an e-mail. “But in the meantime, we are doing everything in our power without them — including strengthening the existing background check system.”
The administration’s progress enrages some Republicans and the National Rifle Association, which has aggressively fought any changes to gun laws. “The reason President Obama is using executive actions is to circumvent the will of the people and to bypass Congressional oversight,” said Andrew Arulanandam, a spokesman for the group.
The National Instant Criminal Background Check System, known as NICS, is a database made up of law enforcement, mental health and other records maintained by the F.B.I. to screen out prohibited firearms purchasers, including people with a record of felonies, those with active domestic violence protection orders lodged against them or those who have been involuntarily committed. The background check database contains more than 10 million active records, but states have been lax in some cases about uploading records to the system, particularly ones related to mental health.
Without an act of Congress, the administration is unable to significantly expand the number of gun buyers who are subject to background checks, nor curb certain types of weapons and clips, both central to Mr. Obama’s gun agenda. Those efforts failed in April on the Senate floor and have yet to be revived.
The executive orders also direct the Centers for Disease Control and Prevention to begin research into gun violence, which administration officials and gun control groups say will help make the case for new gun safety regulations. During the gun debate this past spring on Capitol Hill, there was little available data about the reasons for gun violence, buying patterns and other gun-related public health issues. The reason is that Congress, under pressure from the gun lobby in the 1990s, redirected money that had been allocated for gun research by the C.D.C. and wrote legislation that was interpreted as a ban on government-financed studies of gun violence.
The Institute of Medicine, an independent nonprofit organization, released a 69-page report this month that recommended research on the characteristics of firearm violence, preventive strategies, gun safety technology and the role of video games and other popular media on gun violence. The Centers for Disease Control is now moving to study some of these areas.
Gun control groups say that the administration’s actions are the closest thing they have to rolling back two decades of an expansion in gun rights in both state legislatures and on Capitol Hill. “The simple act of saying we are no longer going to prohibit agencies from doing basic research on what happens when guns fall into the wrong hands and kill people is a sea change,” Mr. Glaze said. He also said that states had responded well when they had been given the resources and historically tended to respond well when they faced the risk of losing scarce funds. “There are a lot of people who are not in the system who should be,” Mr. Glaze said. Administration officials say that a few states, like Pennsylvania, have already started to increase entries in the database.
“As a group these efforts work in tandem,” said Sarah Bianchi, the director of economic and domestic policy for Vice President Joseph R. Biden Jr. “But among the most important was expanding the background check system. There are different reasons some states don’t send all their records: resources, confusion about the law. We wanted to do everything we could to strengthen the system.”
Senator Marco Rubio, Republican of Florida, expressed dismay at the recent developments. “President Obama abused his power by imposing his administration’s policies through executive action instead of working with Congress and allowing the issue to be debated,” he said. “As a strong defender of the Second Amendment, I will continue to oppose the president’s attempts to undermine Americans’ constitutional right to bear arms.”
Next week Mr. Biden will speak to gun groups, his first public event on gun control since the failure of the Senate bill.
Medical Groups Push Back at Gun-Law Change
By JOE PALAZZOLO — Thursday, June 13th, 2013 ‘The Wall Street Journal’ / New York, NY
An Obama administration proposal to speed the flow of mental-health records into the national gun background-check database has run into opposition from medical groups and state authorities, threatening another element of the flagging effort to strengthen federal gun controls in the wake of the Newtown, Conn., school shootings.
The debate involves a plan by the Department of Health and Human Services to amend a federal privacy rule. The amendment would expressly allow state mental-health authorities to transmit records of anyone who has been declared mentally unfit by a court or other authority to the National Instant Criminal Background Check System, or NICS, maintained by the Federal Bureau of Investigation.
The proposal is aimed at easing reluctance to supply such records among authorities in states that haven't specifically allowed it, as well as clarifying that the related federal privacy law doesn't interfere with the production of mental-health information in states that have.
Doctors' groups and others contend the proposal is unnecessary and could lead to a breakdown in doctors' relationship with patients, who may come to fear that their medical information is no longer guarded.
They argue that most records showing a person is prohibited from owning a gun for mental-health reasons, such as being found incompetent to stand trial or not guilty by reason of insanity, can be reported by courts or criminal-justice authorities.
The National Association of State Mental Health Program Directors, the representative for state mental-health agencies, said in a June 7 letter to HHS that the proposal would only serve "to exacerbate the stigma faced by people with mental illnesses and could potentially have a significant chilling effect" on their resolve to seek help.
The American Psychiatric Association, the American Medical Association, and the American Psychological Association expressed similar reservations in separate letters. All are the largest professional organizations in their respective fields.
Federal gun laws prohibit dealers from selling guns to people deemed be "mentally defective." But few states have contributed the mental-health records needed to make that prohibition meaningful.
Part of the reason is the Health Insurance Portability and Accountability Act of 1996, according to a July 2012 report by the Government Accountability Office. The privacy law makes it illegal for health-care providers, health-care clearinghouses and health plans to disclose patient information absent a state law authorizing such disclosure.
Under some state laws, doctors have legal authority to commit people to inpatient treatment against their will when they present a danger to themselves or others.
Courts are split on whether such commitments, without due process, would disqualify someone from purchasing a firearm. In those cases, only a state mental-health agency—not doctors treating patients—should be permitted to report the information to the federal database, the medical groups said.
A spokeswoman for HHS, Rachel Seeger, said the agency doesn't support broad disclosure by health-care providers. "While we do not expect that providers are reporting on their patients directly to NICS," she said, doctors may need an exemption from the privacy law to report involuntary commitments to state mental-health authorities, which can then pass the records to the FBI database.
The proposal says that HHS would only lay aside privacy restrictions for agencies that order people committed involuntarily, perform "relevant mental-health adjudications," or are designated as repositories for such records.
Ms. Seeger said HHS will consider medical groups' views as it weights its next move in the coming months. Any regulatory change wouldn't require congressional approval.
Debates over the need for gun-law change were rekindled by the shootings at the Sandy Hook Elementary School in Newtown, Conn., which killed 20 young children and six adults. But the shooter, Adam Lanza, used weapons that had been purchased by his mother.
Report: D.C. police need guidance to avoid unlawful home entry
By Andrea Noble — Thursday, June 13th, 2013 ‘The Washington Times’ / Washington, DC
D.C. police officers need a refresher on when it’s legal to enter a home without a warrant, according to a report issued Wednesday by the city’s Police Complaints Board.
The board said it routinely receives complaints about officers entering homes — the complaints comprise nearly 14 percent of all those received since 2009 — and recommends the department should write a general order clarifying the exigent circumstances that would justify a warrantless search.
“Providing better training and developing a general order on warrantless entries for officers will aid them in carrying out their duties all the while protecting the rights of the public,” said Philip K. Eure, director of the Office of Police Complaints.
The board does not believe the problem is systemic, however, noting that only a small number of complaints, 12 in all, appeared to “raise valid concerns about unlawful entries into private homes” by police. The agency annually receives hundreds of complaints, and in fiscal 2012 saw 574 formal complaints filed.
A police spokeswoman said the Metropolitan Police Department does not agree with the findings and recommendations of the report and provided a copy of police Chief Cathy L. Lanier’s written response to a draft of the report.
“The MPD most certainly supports all efforts to reduce incidences of police misconduct; however MPD believes the OPC report inaccurately depicts a systemic problem, and that current policy and procedures are sufficient to prevent warrantless entries into private homes,” Chief Lanier stated in the letter.
Of the 12 cases mentioned, the department noted that the office of police complaints has upheld five, with another three still under investigation. One case was deemed unfounded, one settled in mediation, one referred back to D.C. police and another withdrawn by the complainant.
The police union similarly condemned the report with Chairman Kristopher Baumann highlighting the relative few cases at issue that are among the millions of interactions police have with people every year.
Under the Fourth Amendment, police officers are not allowed to search a home without either the resident’s permission or a search warrant unless under some sort of exigent circumstance. As far as what type of circumstances would qualify, the report states that “MPD appears to provide little guidance to its officers on the specific exceptions.”
In one of the complaints described in the report, four police detectives searched a woman’s home after it was disclosed a phone number they were tracking formerly belonged to the woman’s daughter. The complaint was upheld and the officers involved each received letters of dereliction in their files.
The board noted that all the officers involved believed their actions had been justified.
While Chief Lanier wrote in her response that recruits attend a 46-hour course on search and seizure law which includes “lengthy reviews” of exigent circumstances, the report calls the training “a cursory overview” summarized on a one-page document that specifies only general categories of circumstances — such as danger to a third party or while in hot pursuit. It also noted the most recent case cited in training materials is from 2006, with two significant Supreme Court rulings on exigent circumstances issued in the meantime.
Police departments in three cities mentioned in the report — Seattle, Minneapolis and Tucson, Ariz. — all outline exigent circumstances in their general orders.
In addition to training and clarification in the general orders, the report suggested that training be required of officers disciplined for violating the Fourth Amendment, and that officers be required to document all entries into homes based on exigent circumstances.
Chief Lanier said that recommendation will be included as the department’s general order on search warrants is reviewed.
Cleveland police offer pursuit training for officers, but critics say it isn't enough
By John Caniglia — Thursday, June 13th, 2013 ‘The Cleveland Plain Dealer’ / Cleveland, OH
CLEVELAND, Ohio -- It has been more than six months since 60 patrol cars were involved in a chase and fatal shootout, and critics say the department has not done enough to make sure that it won’t happen again.
The day after 11 Cleveland police supervisors were disciplined for their roles in the deadly pursuit Nov. 29, officials said they have begun focusing on training in police chases as part of officers in-service work.
As for other issues that arose during the pursuit, such as officers using cell phones instead of radios, the city says policies have been in place and it is up to the officers to abide by them.
"This department is poorly trained, if it is trained at all," said Patrick D’Angelo, the attorney for the Cleveland Police Patrolmen’s Association. "Police chases are a complicated issue that require comprehensive training for police officers to do their jobs... The city has the time to do it, and if it doesn’t, it should find the time."
The issue came up a day after city officials announced the firing of Sgt. Michael Donegan, the demotion of two other officers and the suspensions of eight sergeants for their role in the police chase that crisscrossed the city more than six months ago. It ended in a middle-school parking lot in East Cleveland.
As the pursuit ended, officers fired a 137 shots into the car, killing driver Timothy Russell and passenger Malissa Williams. The pair did not have a weapon on them at the time of the shooting.
A 12th officer, Sgt. Brian Chetnik, is expected to have a hearing before Safety Director Martin Flask within the next several days.
The discipline came after an administrative review that focused solely on the supervisors involved in the chase. A panel’s results were forwarded to Police Chief Michael McGrath and Flask, who then determined the discipline for the administrative charges.
Flask and Deputy Police Chief Tim Hennessy told The Plain Dealer on Wednesday that the chase has placed a greater emphasis on pursuit training during officers’ 40 hours of annual in-service training, which also includes training in firearms, cultural diversity, vehicle stops, ethics and use of force.
Third District Commander Patrick Stephens teaches now three hours of pursuit training, with a written test for officers.
The class had not been offered in the recent past.
"I am happy that they’re doing training," said Ohio Attorney General Mike DeWine. "We said they needed the training, and we’re glad they’re doing it."
State agents investigated the chase and shooting, and DeWine’s office was critical of the police department’s handling of the chase and shooting, calling it a "systemic failure" of the department.
"You have to take a look at the big picture when you have a tragedy like this," DeWine said in an interview. "You have to look at what other cities have done. What you will find is that cities have added training and changed some policies."
Samuel Walker, a professor emeritus of criminal justice at the University of Nebraska at Omaha and an expert on police accountability, called the department’s emphasis on pursuit training is a good idea, but he stressed the city can do better.
"They ought to tell the public that," he said. "They have a community-trust problem."
When told that Stephens, an officer from within the department, was handling the training, Walker became silent.
"That’s a problem; you want to bring in someone from outside the department," he said.
Geoffrey Alpert, a professor of criminal justice at the University of South Carolina who has studied police chases, said the issues in the chase need to become transparent.
"This is bigger than Cleveland," Alpert said. "These issues span 17,000 to 18,000 police departments in the country."
D’Angelo, the union attorney, said police chases are such a regular occurrence that officers need as much training as possible.
"The lack of training has revealed itself throughout this whole case," he said.
Also Wednesday, Lt. Brian Betley, the president of the Fraternal Order of Police — the union that represents supervisors — questioned the firing of Sgt. Donegan, saying he had never been disciplined and had worked recently as a fill-in lieutenant. Told of Betley’s comments, Flask appeared to bristle.
"I will be ready, willing and able to defend this decision," Flask said.
N.S.A. Chief Says Phone Logs Halted Terror Threats
By DAVID E. SANGER, CHARLIE SAVAGE and MICHAEL S. SCHMIDT — Thursday, June 13th, 2013 ‘The New York Times’
WASHINGTON — The director of the National Security Agency told Congress on Wednesday that “dozens” of terrorism threats had been halted by the agency’s huge database of the logs of nearly every domestic phone call made by Americans, while a senator briefed on the program disclosed that the telephone records are destroyed after five years.
The director, Gen. Keith B. Alexander, who heads both the N.S.A. and United States Cyber Command, which runs the military’s offensive and defensive use of cyberweapons, told skeptical members of the Senate Appropriations Committee that his agency was doing exactly what Congress authorized after the attacks of Sept. 11, 2001.
General Alexander said he welcomed debate over the legal justification for the program because “what we’re doing to protect American citizens here is the right thing.” He said the agency “takes great pride in protecting this nation and our civil liberties and privacy” under the oversight of Congress and the courts.
“We aren’t trying to hide it,” he said. “We’re trying to protect America. So we need your help in doing that. This isn’t something that’s just N.S.A. or the administration doing it on its own. This is what our nation expects our government to do for us.”
But in his spirited exchanges with committee members, notably Senator Patrick J. Leahy, Democrat of Vermont, General Alexander said he was seeking to declassify many details about the program now that they have been leaked by Edward J. Snowden, a former N.S.A. contractor who came forward to say he was the source of documents about the phone log program and other classified matters.
Senator Dianne Feinstein, the California Democrat who is chairwoman of the Senate Intelligence Committee, was the first to disclose that the records are eventually destroyed. She said that she planned to hold a classified hearing on Thursday on the program. But at the Wednesday hearing, where testimony about the government’s planned $13 billion spending on cybersecurity was largely swept aside for a discussion of the surveillance program, Ms. Feinstein also revealed that investigators had used the database for purposes beyond countering terrorism, suggesting it might have also been employed in slowing Iran’s nuclear program.
Analysts can look at the domestic calling data only if there is a reason to suspect it is “actually related to Al Qaeda or to Iran,” she said, adding: “The vast majority of the records in the database are never accessed and are deleted after a period of five years. To look at or use the content of a call, a court warrant must be obtained.”
In a robust defense of the phone program, General Alexander said that it had been critical in helping to prevent “dozens of terrorist attacks” both in the United States and abroad and that the intelligence community was considering declassifying examples to better explain the program. He did not clarify whether the records used in such investigations would have been available through individual subpoenas without the database. He also later walked back the assertion slightly, saying the phone log database was used in conjunction with other programs.
In his testimony, General Alexander said he had “grave concerns” about how Mr. Snowden had access to such a wide range of top-secret information, from the details of a secret program called Prism to speed the government’s search of Internet materials to a presidential document on cyberstrategy. He said the entire intelligence community was looking at the security of its networks — something other government officials vowed to do after the WikiLeaks disclosures three years ago.
Under the Prism program, the N.S.A. collects information from American Internet companies like Google without individual court orders if the request is targeted at noncitizens abroad. That program derives from a 2008 surveillance law that was openly debated in Congress.
As part of the review from the fallout of leaks about Prism and the phone program, intelligence agencies will seek to determine whether terrorist suspects have increased their use of code words or couriers, have stopped using networks like Facebook or Skype, or have “gone silent” and can no longer be found, current and former senior American officials said separately from the hearing.
The review, which will most likely last for months to determine the long-term impact of the disclosures by Mr. Snowden, will also include a “cost benefit analysis” of the programs.
“Now that it’s out there, it will be looked at in a different way,” one of the current officials said. “Everyone’s raising questions about whether they have been compromised and whether to continue with them at the same pace. They are wondering whether or not they are going to continue to yield good information.”
While senior intelligence officials — including James R. Clapper Jr., the director of national intelligence — have asserted that the disclosures have significantly damaged the government’s intelligence capabilities, the current and former officials were far less sure of the lasting impact.
Philip Mudd, a former F.B.I. deputy director for national security, said that there could be some short-term impact on the programs but that terrorists would find it very hard to function without using electronic communications. “Good luck trying to communicate in this world without leaving a digital exhaust — that’s not going to happen,” he said.
Representative Peter King, Republican of New York, called for the prosecution of journalists who published the classified information in the documents leaked by Mr. Snowden. Mr. King told Fox News he was specifically talking about Glenn Greenwald, the columnist for The Guardian, whom he accused of threatening to release the names of covert C.I.A. agents.
On Twitter, Mr. Greenwald said it was a “lie” that he had made such a threat, and shot back with a reference to Mr. King’s past support for the Irish Republican Army: “Only in America can a renowned and devoted terrorism supporter like Peter King be the arbiter of national security and treason,” he wrote.
Public opinion, judging by two polls with differently worded questions that yielded different results, is divided over the government’s tracking of the communications of Americans. In a Pew Research Center/Washington Post poll conducted June 6-9, 56 percent of Americans said the N.S.A’s program tracking the phone records of “millions of Americans” was an acceptable way to investigate terrorism, while 41 percent said it was unacceptable. But a CBS News poll conducted June 9-10, which instead asked about collecting phone records of “ordinary Americans,” found that just 38 percent supported it and 58 percent opposed it.
FBI director defends surveillance programs
By PETE YOST (The Associated Press) — Thursday, June 13th, 2013; 11:02 a.m. EDT
WASHINGTON (AP) -- FBI Director Robert Mueller is defending the government's collection of millions of U.S. phone records, emails and other information that people transmit online as vital to the nation's national security.
In his last appearance as FBI director before the House Judiciary Committee, Mueller said the Foreign Intelligence Surveillance Court has approved the surveillance programs and they have been conducted in compliance with U.S. law and with oversight from Congress.
The revelation that the National Security Agency is collecting millions of U.S. phone records along with digital communications stored by nine major Internet companies has touched off a national debate over whether the Obama administration, in its efforts to thwart terrorism, has overstepped proper bounds by using intrusive surveillance methods.
THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.
FBI Director Robert Mueller is nearing the end of his 12 years as head of the law enforcement agency that is conducting high-profile investigations of the Boston Marathon bombings, the attacks in Benghazi, Libya, that killed four Americans and leaks of classified government information.
On Thursday, Mueller was to undergo questioning by the House Judiciary Committee on these and other issues in what will be his final appearance before the panel. His last day on the job is Sept. 4.
The committee's chairman, Rep. Bob Goodlatte, R-Va., said when it comes to national security leaks, it's important to balance the need to protect secrecy with the need to let the news media do their job.
The Justice Department revealed last month that it had secretly gathered phone records of The Associated Press and emails of Fox News journalist James Rosen in an effort to crack down on leakers of classified information.
In the past week, a 29-year-old contractor leaked National Security Agency documents on the agency's collection of millions of U.S. phone records and the NSA's collection of emails and other information that people transmit online to and from foreign targets.
That has touched off a national debate over whether the Obama administration, in its efforts to thwart terrorism, has overstepped by using intrusive surveillance methods.
"Over the past few years, we have witnessed troubling national security leaks and have learned that the Obama administration seems to be bending the rules in place that protect the freedom of the press in its investigations," Goodlatte said.
On Benghazi, Republicans accuse the administration of misleading the public about an act of terrorism in the heat of the presidential campaign by saying the Sept. 11, 2012, assaults on the U.S. diplomatic post grew out of spontaneous demonstrations over an anti-Muslim video. In the immediate aftermath, U.N. Ambassador Susan Rice described it as a "horrific incident where some mob was hijacked, ultimately, by a handful of extremists." The White House says Rice reflected the best information available while facts were still being gathered.
Goodlatte said the committee planned to find out more about the status of what the congressman called the FBI's "stalled investigation" in Libya.
GOP lawmakers also have questioned why the military couldn't get aircraft or troops to Benghazi in time to thwart a second attack after the first incident that killed U.S. Ambassador Chris Stevens. Four Americans, including Stevens, died in the attacks that took place several hours apart.
Regarding the Boston Marathon bombings, committee members want to know whether there was a breakdown in information-sharing between federal agencies, preventing the FBI from thwarting the explosions that killed three people and injured more than 260.
Russia's internal security service, the FSB, sent information to the FBI about now-deceased bombing suspect Tamerlan Tsarnaev in 2011. The Russians told the FBI that Tsarnaev, an ethnic Chechen Russian immigrant living in the Boston area, was a follower of radical Islam and had changed drastically since 2010. Because of a subsequent FBI inquiry, Tsarnaev's name was added to a Homeland Security Department database called TECS that is used by U.S. officials at the border to help screen people coming in and out of the U.S.
In January 2012, Tsarnaev traveled to Russia and returned to the U.S. in July. Three days before he left for Russia, the TECS database generated an alert on Tsarnaev. That alert was shared with a Customs and Border Protection officer who is a member of the FBI's Boston joint terrorism task force. By that time, the FBI's investigation into Tsarnaev had been closed for nearly six months because the FBI uncovered no evidence that he was tied to terror groups.
Tsarnaev died after a shootout with police four days after the April 15 bombings. His brother, Dzhokhar, was charged in the bombings and is recovering from gunshot wounds at a federal prison hospital in central Massachusetts.