Category Archives: Access to Justice

Progressive prosecutors scored big wins in 2020 elections, boosting a nationwide trend

by Caren Morrison, Georgia State University

Despite the broad political polarization in the United States, the 2020 election confirmed a clear movement across both red and blue America: the gains made by reform-minded prosecutors.

Running on progressive platforms that include ending mass incarceration and addressing police misconduct, candidates defeated traditional “law-and-order” prosecutors across the country.

Elected prosecutors – often called state’s attorneys or district attorneys – represent the people of a particular county in their criminal cases. Their offices work with law enforcement to investigate and try cases, determine which crimes should be prioritized and decide how punitive to be.

After decades of incumbent prosecutors winning reelection based on their high conviction rates or the long sentences they achieved, advocates for criminal justice reform began making inroads into their territory a few years ago. They did so mainly by drawing attention to local races and funding progressive challengers.

Despite criticism during her first term, progressive prosecutor Kim Foxx won reelection as Cook County state’s attorney by a 14-point margin. Scott Olson/Getty Images

 

Birth of a movement

During her 2016 run for state’s attorney for Cook County, Illinois, Kim Foxx vowed to bring more accountability to police shootings and reduce prosecutions for nonviolent crimes.

She won, becoming the first Black woman to serve as state’s attorney in Chicago. It was also the first high-profile sign that this progressive prosecutorial approach was working.

Her victory was followed by the 2017 election of Larry Krasner as district attorney in Philadelphia. Krasner, a former civil rights attorney, had never prosecuted a case when he ran for office – a move that the city’s police union chief called “hilarious.”

But Krasner’s campaign platform – addressing mass incarceration and police misconduct – responded to a city saddled with the highest incarceration rate among large U.S. cities, nearly seven out of every 1,000 citizens. Krasner won with 75% of the vote.

As a criminal procedure professor and a former federal prosecutor, I have watched the desire for reform only grow since then.

Progressive candidates have pledged to transform a criminal justice system that has bloated prisons and disproportionately targeted people of color.

Black Lives Matter protests have also focused attention on how prosecutors make decisions – whom they prosecute and how severely, particularly in police violence cases.

Movement gains steam

Despite criticism of her first term – including her decision to drop the charges against actor Jussie Smollett for faking a hate crime – Foxx won reelection on Nov. 3 by a 14-point margin. It was a sign, according to the Chicago Sun-Times, that Cook County “doesn’t want to go backward on criminal justice reform.”

That sentiment is echoing across the country.

In Orlando, criminal justice reformer Monique Worrell beat a law-and-order “independent conservative” in the race for state attorney.

In Detroit, Karen McDonald won her race for Oakland County prosecutor by promising “common-sense criminal justice reform that utilizes treatment courts and diversion programs, addresses racial disparity, and creates a fair system for all people.”

And in Colorado, Democratic prosecutors flipped two large Colorado districts that had been held for decades by Republicans.

“I think people are starting to realize, ‘Why don’t I know who my DA is?‘” said Gordon McLaughlin, the new district attorney for Colorado’s Eighth Judicial District, who campaigned on alternatives to incarceration for nonviolent offenders. “It’s brought criminal justice into the main conversation.”

Police accountability

One prominent issue on voters’ minds is how prosecutors’ offices choose to handle police violence.

In Los Angeles, George Gascón, a former police officer, ousted Jackie Lacey. Lacey was the target of sustained criticism from BLM activists, who protested in front of her office every Wednesday for three years.

George Gascón, candidate for Los Angeles district attorney, speaks during a drive-in election night watch party at the LA Zoo parking lot on Tuesday, Nov. 3, 2020. Myung J. Chun/Los Angeles Times via Getty Images

They complained that, during her eight years in office, Lacey criminally prosecuted only one of the approximately 600 officer-involved shootings. They added that Lacey, a Black woman, sent 22 people of color to death row.

Gascón vowed to hold police accountable for officer-involved shootings. During the campaign, he pledged to reopen high-profile cases, including two where people were shot for not complying with an officer’s directions.

Mass incarceration and cash bail

Progressive prosecutors are likely to have the most impact by diverting people away from the criminal justice system in the first place.

Many have been motivated by what they see as “the criminalization of poverty” – a phenomenon in which the poor compile criminal records for minor offenses because they cannot afford bail or effective legal counsel.

Alonzo Payne, the new district attorney for San Luis Valley, Colorado, was outraged that poor people were forced to stay in jail because they couldn’t afford to post bond.

“I decided I wanted to bring some human compassion to the DA’s office,” he told the Denver Post.

Reforming the cash bail system and reducing mass incarceration is a goal shared by all of the newly elected prosecutors this election cycle, including Jose Garza, an immigrant rights attorney, in Austin, Texas.

Looking ahead

It seems that progressive policies are here to stay in some of the nation’s largest cities, but reformers didn’t enjoy success everywhere.

Candidates Zack Thomas in Johnson County, Kansas, and Julie Gunnigle in Maricopa County, Arizona, lost their races. And incumbents withstood reformist challengers in Cincinnati, Ohio, and Charleston, South Carolina.

Nonetheless, progressive prosecutors are increasingly winning races – and staying in power – by using the criminal justice system in more equitable ways.

Worrell, in Orlando, is a good example. She ran the Conviction Integrity Unit in the district attorney’s office, investigating innocence claims from convicted defendants.

Her reform message resonated a lot more with voters than the message of her opponent, Jose Torroella, who pledged to be “more old-fashioned” and more “strict.” Worrell won the race with nearly 66% of the votes.

“Criminal justice reform is not something people should be afraid of,” Worrell said. “It means we’re going to be smart on crime, rather than tough on crime.”The Conversation


Republished with permission under license from The Conversation.

Kimberly Gardner and MLK the Impossible Dreamers

by Randall Hill, Court.rchp.com

I can't think of a more fitting tribute on Dr. Martin Luther King Day than the example being demonstrated by Kimberly Gardner! Just like King, Gardner dares to dream big. Just like King, Gardner's statements are being distorted, her actions vilified and forces have mobilized to discredit her.

Most people can't imagine the sacrifice required to fight a powerful system. Systems are created to protect the self-interest, wealth and power of those who create them. As we predicted three years ago, the system is fighting against Ms. Gardner's reform efforts. System benefactors especially powerful ones will do whatever is required to protect themselves. This is true of virtually all systems, banking, education, political, labor and legal.

Fortunately, systems are not perfect, so there are ways to penetrate systems to create unintended consequences and use them to our advantage. From its inception, the United States was designed to exclude black people from benefiting, however, the Fourteenth Amendment was an unintended consequence. 

St. Louis Circuit Attorney Kimberly Gardner is the lastest impossible dreamer and she is using the Fourteenth Amendment in her fight against a corrupt system. She challenged a governor, a racist police department and the justice system and those with self-interest involving our continued oppression are fighting back. Ms. Garner earns more than $167,000 as circuit attorney and could have easily gone along with the status quo, however, she put not only her position and salary on the line to fight for us, but her life as well. 

Below is an inspirational video that I'm dedicating to Kimberly Gardner: "The Impossible Dream" sung by Luther Vandross. Some dreams, while being highly desirable seem unattainable or impossible, but even seemingly impossible situations have been overcome by dedicated and determined people.

Kimberly Gardner, the first black St. Louis Circuit Attorney filed a civil rights lawsuit in St. Louis Federal Court, case number 4:20-cv00060, on Monday, January 13, 2020, alleging a racist conspiracy to prevent her from doing her job. Below is a video from CBS morning news the morning after the lawsuit was filed

On Tuesday, January 14, 2020, black female prosecutors from around the country came to St. Louis in a show of solidarity to support Ms. Gardner. It was a wonderous sight to behold these women standing in support of their fellow freedom fighters. Below is the video of that rally.

The Ethical Society of Police, who did not endorse Gardner when she ran for office, stated: "That lawsuit is legitimate because there is a climate in the St. Louis Metropolitan Police Department… that is accepting of racism, discrimination, corruption. And some of those entities are within the St. Louis Police Officers Association."

King's dream has not been fully realized, but we are much closer to that dream than we were when he announced it to the world. Unfortunately, the dream has lost some ground in the Trump era, however, that does not mean the dream is unattainable. We must each do our part to make that dream a reality. Oppression is a form of injustice that occurs when one social group is subordinated while another is privileged. Oppression is maintained by a variety of different mechanisms, however, in the United States, the law has by far been the single most effective perpetrator of oppression. Laws allowing slavery, peonage, unequal education, substandard housing, mass incarceration, and a variety of other social injustices helped shaped current reality.

Unlike Kimberly Gardner, when you or I go against the system, we don't have others rallying behind us. Each of us individually must arm ourselves with as much knowledge as possible. Waiting on organizations or others to do for us what we can do for ourselves will most certainly delay the dream. As Ella Baker stated, "strong people don't need strong leaders". Obama's stepfather gave the following advice; “Better to be strong,' he [Lolo] said … 'if you can't be strong, be clever and make peace with someone who's strong. But always better to be strong yourself.”

When I first began representing myself in court with no formal legal training, my friends and family thought my quest was an impossible dream until I started winning! Over a period of several years, I made dozens of court appearances and I did not witness another self-represented person win. Most lost because they lacked the most basic understanding of the rules of court. The legal profession, which restricted the number of African Americans entering its ranks, creates barriers to finding and understanding legal information and resources. 

Court.rchp.com reveals what the legal profession seeks to hide and provides free legal information and resources. We also reveal many of the lies of history that were taught to use in organized misinformation and miseducation campaign. Make yourself stronger by increasing your knowledge of the law. Once you've done so, the next time a landlord, business, or institution treats you unfairly you'll be better equipped to respond properly and fight back if necessary. Often, a simple letter quoting a federal or state statute and how it applies to the situation gets the desired result. 

When your adversary believes you are uninformed they are more likely to continue abusing your rights. Once you put someone on notice that you understand the law and how to apply, they are less likely to mistreat you and risk a legal challenge. 

Black and white bail judges show bias against black defendants

By Denise-Marie Ordway

study of bail judges in the Miami and Philadelphia areas suggests that both black and white judges show bias against black defendants.

The study, in The Quarterly Journal of Economics, finds that black defendants are 2.4 percentage points more likely than white defendants to be detained while they await their court hearings. The average bail for black defendants is $7,281 higher than for white defendants.

It appears that bail judges rely on racial stereotypes to predict which defendants will commit another crime if released, the researchers explain. In reality, some white defendants are much more likely than black defendants to get arrested again after their release, the team’s analysis suggests.

“We find suggestive evidence that this racial bias is driven by bail judges relying on inaccurate stereotypes that exaggerate the relative danger of releasing black defendants,” write the authors of the paper, David Arnold and Will Dobbie of Princeton University and Crystal S. Yang of Harvard Law School.

Generally speaking, after an arrest, defendants who seem less risky are released on their own recognizance, meaning they are free to go after promising to appear in court for upcoming proceedings, or they are released if they meet certain conditions such as paying a bail amount or posting a bail bond to guarantee their presence in court. Some defendants are not released because they cannot meet bail.

For the study, researchers examined 162,836 court cases representing 93,914 defendants in Philadelphia County from 2010 to 2014 as well as 93,417 cases from 65,944 defendants in Miami-Dade County between 2006 and 2014.

The findings are consistent with another study published in 2018 that uses machine learning techniques to show that bail judges make mistakes in predicting what a defendant would do if released. That study indicates judges make significant prediction errors for defendants of all races.

Some other key findings of this study include:

  • Racial bias is higher among bail judges in Miami-Dade than in Philadelphia.
  • Racial bias is higher among inexperienced judges and part-time bail judges. Experienced judges are better at predicting defendant behavior. The scholars find that judges in Miami who are considered to be experienced have 9.5 years of experience working in the bail system, on average. Miami judges considered to be inexperienced have an average of 2.5 years of experience.
  • “If racially biased prediction errors among inexperienced judges are an important driver of black-white disparities in pretrial detention, providing judges with increased opportunities for training or on-the-job feedback could play an important role in decreasing racial disparities in the criminal justice system,” the researchers write. “Our findings also suggest that providing judges with data-based risk assessments may also help decrease unwarranted racial disparities.”

Looking for more research on criminal courts? Check out our write-ups on criminal restitutionearly release for good behavior and how defendants’ education levels could impact sentencing decisions.


Republished with permission under license from Journalist's Resources.

Why the federal government isn’t prosecuting the officer who choked Eric Garner

Editorial note by Randall Hill: 

Systems, including the legal system, are created to protect the wealth, power, and self-interest of those who create them.

White slave owners created our legal and other systems still in use today. Eric Garner, Mike Brown and more were casualties of rigged systems.

Can you name a single system that does not fail black people in general? Education, banking, political, and just about every other system you can think of has extraordinary obstacles or traps targeted against us. We are de facto slaves because of our misguided trust in or lack of understanding about the systems that govern us. 

Unless we are prepared to make monumental sacrifices nothing will change. Tomorrow we will learn about another unarmed black person killed by police, get upset and frustrated, possibly march or protest but nothing will change. We will also hear about another black person being gunned down not by the police but by another black person. The police chief and mayor will talk about plans to reduce crime, community leaders will offer prayers and vigils, "We must stop killed each other" signs may go up, but nothing will change because the systems that caused the problems in the first place will not change. 

When we become successful, our success does not look like white success. For the most part, they own and we go to work for them. Two years ago, one in seven white families were millionaires and according to Credit Suisse, there are over 17 million millionaires in the U.S.

White people, for the most part, don't have entire systems designed to work against them, therefore as a group, they have better access to education, employment, housing, capital, and every other meaningful institution and system. Until we figure out a way to disrupt their systems the status quo will remain. What are you prepared to do? If the answer is nothing, nothing will change.

"Give me liberty or give me death"

Most Americans are familiar with the famous freedom quote articulated so eloquently by Patrick Henry, a man who owned 67 slaves at the time of his death. Many have never heard the full speech, a video reenactment is below.

As a slave owner, Patrick Henry knew he did not want to become a slave himself. He understood probably better than most that freedom isn't given, it must be taken. 


Article by Caren Morrison, Associate Professor of Law, Georgia State University

The Justice Department won’t file federal charges against the New York City police officer who put Eric Garner into the chokehold that led to his death. With the statute of limitations having run out, the case, legally, is closed.

Gwen Carr, Eric Garner’s mother, says the federal government should have filed charges. 

The decision, announced almost exactly five years after Garner was pronounced dead following a confrontation with police officers in Staten Island on July 17, 2014, has sparked renewed objections from his relatives, activists and politicians.

Every officer involved has remained on the force, and no criminal charges have been filed. Daniel Pantaleo, the officer caught on video with his arm around Garner’s neck, was assigned to desk duty, but has stayed on the department’s payroll and even received an increase in his overtime pay.

Garner’s death was brutal, but as a former federal prosecutor and a criminal procedure professor who studies how prosecutors handle police violence cases, the lack of federal charges doesn’t surprise me.

According to criminal justice professor Philip Stinson, local prosecutors are often reluctant to prosecute the officers they work with to investigate cases. Reporting by the Marshall Project suggests they may not want to anger the police unions they often count on for political support. And existing law gives the police the benefit of the doubt in most situations. Based on my research, it seems that this is just how the justice system works.

New York City police officer Daniel Pantaleo allegedly used a banned chokehold in the July 2014 death of Eric Garner.

Obstacles to prosecution

The case’s basic details are not contested. Pantaleo, who is white, was among a group of officers who approached Eric Garner, who was black, during a routine arrest for selling untaxed, loose cigarettes.

The encounter, which a bystander shot using his phone and the city’s medical examiner ruled a homicide, soon turned contentious. It culminated with Pantaleo taking Garner down to the pavement with his arm wrapped around his neck. Pantaleo is seen shortly afterward on the video pressing down on Garner’s head as other officers crowded around him.

A few months after Garner’s death, the Staten Island district attorney announced that he had presented the case to the grand jury, but did not obtain an indictment.

A public outcry ensued. Garner’s dying words, “I can’t breathe,” became a rallying cry at #BlackLivesMatter protests.

But the fact is that it is extremely difficult to bring charges against on-duty cops for excessive force.

The Supreme Court ruled in 1989 that in police use-of-force cases, allowance must be made “for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”

Ever since, few juries have found police officers guilty of using excessive force. Since 2005, only 35 officers have been found guilty of charges related to killing civilians.

A sign and plaque near where Eric Garner had a deadly encounter with the police in the Staten Island borough of New York City.

Federal civil rights

Because of the Constitution’s protection against double jeopardy, which prevents anyone from being charged twice for the same crime, people aren’t usually prosecuted more than once for a single incident. But because U.S. law considers the states and the federal government to be legally independent jurisdictions, the Justice Department can indict an officer who has previously been charged under state law, even if he was acquitted.

When excessive force prosecutions against police officers don’t result in a conviction at the state level, the local U.S. attorney’s office may indict the officers for violating a person’s civil rights. This happened most notably in 1991 in the case of Rodney King, the black motorist who was beaten by Los Angeles police officers, and recently after the South Carolina mistrial of police officer Michael Slager, for shooting Walter Scott, another unarmed black man, in the back.

But the type of proof needed to bring a federal civil rights case is much more demanding than for a state criminal case. While there are numerous state charges that might be brought against an officer who causes the death of a civilian, from murder to manslaughter to reckless endangerment to assault, there is only one route for a civil rights case.

In those cases, prosecutors must prove that officers used excessive force against a person, generally defined as force that was clearly unreasonable in the circumstances. In addition, they have to prove that the officer’s actions were “willful.”

And willfulness is “the highest standard of intent imposed by law,” as the U.S. Attorney in Brooklyn, Richard P. Donoghue, said in his public statement about Pantaleo. “An officer’s mistake, fear, misperception or even poor judgment does not constitute willful conduct under federal criminal civil rights law.”

A narrow path

Many news outlets reported that the decision to close the Garner case happened once U.S. Attorney General William Barr ordered the case dropped, overruling the Civil Rights Division in his own department.

Activists have questioned Barr’s civil rights record, noting that while serving as President George H.W. Bush’s attorney general, Barr released a report titled “The Case for More Incarceration.” Barr’s predecessor, Jeff Sessions, quashed the Justice Department’s attempts to reform policing.

Still, I’m not sure the outcome would have been different with someone else in the White House.

In fact, disagreements on whether the case could be successfully prosecuted in federal court also snarled proceedings during the Obama administration. And there was only ever a narrow path to prosecution.

When Donoghue gave a detailed explanation for his decision, he took an unusual step. Most of the time, when officers don’t get charged, the reasons are shrouded in secrecy. Instead, Donoghue gave a painstaking explanation of the ambiguities in the video, the conflicting medical expert reports, and the reasons he believed the high standard of intent could not be proved beyond a reasonable doubt.

I once served in the United States Attorney’s Office for the Eastern District of New York, which Donoghue now runs. I hate the fact that many people will never feel that justice was done in Eric Garner’s tragic and avoidable death.

Yet I’m not sure that I could have reached a different conclusion myself.The Conversation


How Eric Garner's Death Changed New York And The NYPD

The sad reality is, that unless your oppression negatively impacts your oppressor, they have no incentive to change.  Even New York Police Commissioner, James P. O'Neill, whose comments begin at 2:26 in the timeline, acknowledges how the protest over no indictments being issued in Eric Garner's death, culminated in the death of two police officers, which was the moment the police department realized they needed to make a change.


Republished with permission under license from The Conversation. The editorial note preceding the article and the video and comments at the end were not part of the original.

A Lawsuit Over Ferguson’s “Debtors Prison” Drags On

The federal class-action claims thousands of people in Missouri were jailed because they couldn’t pay off fines. Four years after the suit was filed, the plaintiffs are still waiting, and wondering if the deck is stacked against them.

By Topher Sanders

In January 2014, Tonya DeBerry was driving through an unincorporated area of St. Louis County, Missouri, when a police officer pulled her over for having expired license plates.

Allison Nelson in Jennings, Missouri. Her mother, Tonya DeBerry, was jailed over outstanding traffic tickets from three jurisdictions. After paying St. Louis County, she was handed over to Ferguson and Jennings, and in each, she was told she’d be released only after paying a portion of the fines.

After discovering that DeBerry, 51, had several outstanding traffic tickets from three jurisdictions, the officer handcuffed her and took her to jail.

To be released, she was told, she would have to pay hundreds of dollars in fines she owed the county, according to her account in a federal lawsuit. But after her family came up with the money, DeBerry wasn’t released from custody. Instead, she was handed over to the municipalities of Ferguson and Jennings, and in each city, she was told she would be released only after she paid a portion of the fines she owed them, according to the lawsuit.

It was as if she were being held for “ransom,” her lawyer would later say.

The Supreme Court ruled almost 50 years ago that a person can’t be jailed for not being able to pay a fine. But like so many people in Missouri, DeBerry had ended up cycling through a succession of jails for that very reason, caught up in what critics have called modern-day “debtors prisons,” used by towns to keep fines flowing into municipal coffers.

“It’s a cat-and-mouse game,” said her daughter, Allison Nelson, who has also spent time in jail for not being able to pay traffic fines.

If DeBerry and her family were exasperated by the heavy-handed collection efforts, they would learn how hard it would be to hold the authorities accountable, especially in Ferguson, even after the killing of Michael Brown later that year drew national attention to the city’s troubled criminal justice system.

The city slowly stopped jailing people for not being able to pay fines as the news media showed the victims were primarily black and the Justice Department made clear that what Ferguson had been doing was wrong. But four years after a federal class-action suit was filed against the city on behalf of thousands of people who claimed they were jailed for their inability to pay fines, the plaintiffs are still waiting for redress.

The city has sought to have the lawsuit dismissed, filing a succession of motions, arguing among other reasons that instead of suing the city, the plaintiffs should be suing the municipal division of the state court. All three of the motions have been denied by the judge, Audrey G. Fleissig, of the U.S. District Court in St. Louis, though one of the rulings was appealed and that took about a year to resolve.

Nelson flips through photocopies of traffic tickets and legal filings.

One issue has proved to be particularly frustrating to the plaintiffs: whether the city of Ferguson is even insured for a class action.

In March 2016, the lawyer representing Ferguson sent an email to a representative of the city’s insurer, saying that the scope of the lawsuit had expanded, and that concern about the case “grew” after a similar suit was settled for what was believed to be a “substantial amount of money.”

The five-sentence email concluded with the lawyer, Peter Dunne, of the St. Louis firm Pitzer Snodgrass, saying that legal action may be necessary to resolve the question of whether the city was covered for a class action.

“We believe a DJ [declaratory judgment] suit to determine coverage may be necessary,” Dunne wrote.

Three months later, the insurance trust filed a declaratory judgment suit against Ferguson in St. Louis County Circuit Court, asking a judge to find that the city did not have insurance coverage for class actions.

Dunne’s role was not publicly known until September when St. Louis Post-Dispatch columnist Tony Messenger reported Ferguson’s allegation that Dunne had violated his duty to the city. The email documenting Dunne’s discussion of a lawsuit with the insurer was first obtained by ProPublica. Dunne, one of the firm’s principals, did not respond to requests for comment. The other principals did not respond to emails or to a call to the firm’s office.

Suggesting legal action involving his own client was a breach of legal ethics, some experts said, and the revelation has only deepened the sense among the plaintiffs and their supporters that the deck is stacked.

“No matter where the citizens of Ferguson go in the legal system, justice is really hard for them to obtain,” said Vincent Southerland, executive director of New York University School of Law’s Center on Race, Inequality and the Law. “It’s another example that we have a legal system that was not built to protect and vindicate the rights of the most vulnerable among us.”

The killing of Brown by a police officer in August 2014 and the unrest that followed thrust Ferguson into the middle of a growing national debate over race and law enforcement. But for black people in Ferguson and the surrounding North County region, racial discrimination had long defined their relationship with the local police and courts.

Even as the rest of the country moved on from Ferguson, the people seeking a judgment against the city found themselves mired in the machinations of an insular legal system and an overburdened insurance carrier.

Ferguson, a city of about 21,000 people, was insured through a cooperative of 25 municipalities called the St. Louis Area Insurance Trust, commonly referred to as SLAIT.

The trust has operated largely out of the public eye. It took the persistence of Messenger, who won a Pulitzer Prize this year for his columns on “debtors prisons” in rural Missouri, to make the trust comply with open government laws.

Messenger said the rural courts ensnared whites, while in Ferguson and elsewhere in North County, it was blacks who were victimized. “But it’s the same concept,” he said. “It’s policing on the poor, it’s jurisdictions that don’t have a tax base anymore looking to the judicial system as a fundraising tool and judges allowing themselves to be tax collectors rather than purveyors of justice.”

Four years after a federal class-action suit was filed against Ferguson on behalf of thousands who claimed they were jailed for their inability to pay fines, the plaintiffs are still waiting for redress.

The trust hired Dunne to provide Ferguson’s defense of the class-action lawsuit. But his firm, Pitzer Snodgrass, was also providing the trust with legal advice on insurance coverage issues, according to a court filing by Ferguson. That set up what Ferguson said in the filing was a conflict that the city had not been made aware of.

Even if city officials wanted to settle the case, the trust claims in court filings there isn’t coverage and it won’t pay out. The insurance trust’s lawsuit will determine whether there is coverage.

Michael Downey, a law professor at Washington University in St. Louis and an expert on legal ethics, said that unless Dunne had Ferguson’s permission, Dunne should not have talked to the insurer about the possibility of a lawsuit over coverage.

“A breach of the duty of confidentiality basically to encourage a party to take action against your client is a pretty serious violation of the rules,” Downey said.

Even if Dunne thought he was conveying something that the insurer already knew, the exchange was still concerning, Downey said.

The trust, through its lawyer, declined to comment.

Michael Frisch, Georgetown University Law Center’s ethics counsel, said that, were the bar to pursue an investigation, any punishment would not be severe. A reprimand — at most, he said.

“It’s the kind of a thing that would not draw that much of a response from the bar,” Frisch said. “Lawyers tend not to get suspended for things like this.”

New York University law professor Stephen Gillers, who specializes in legal ethics, said that regardless of any punishment, Dunn’s actions are significant.

“It’s a big deal, because clients are entitled to loyalty,” he said. “If you can’t be equally loyal to both clients, then you have a conflict and you have to withdraw entirely or from one or the other client.”

For lawyers hired by insurance companies to represent policyholders, the question of who is the client was for many years unsettled ethical terrain, experts say.

Lawyers can feel a sense of obligation to the insurance companies that hire them — and that can provide a steady stream of business — said William Barker, co-author of “Professional Responsibilities of Insurance Defense Counsel.”

Barker, a Chicago lawyer with the firm Dentons, said that until the 1970s, lawyers hired by insurance companies to represent a policyholder typically thought of the company as their chief client. But a series of court decisions since then established that the lawyer owes undivided loyalty to the policyholder, and that is why the lawyer’s actions in the Ferguson case appear to be troubling, Barker said. “That’s something that the defense lawyer ought not to be doing,” he said. “The lawyer who is handling the defense ought not to be involved, certainly in advising the insurance company on coverage issues.”

Michael-John Voss, a lawyer for the ArchCity Defenders, the civil rights group that brought the lawsuit against Ferguson, expects to case to drag into 2020.

“The relief and the remedy has been a long time coming, and there’s no clear end in sight,” he said. “And it reemphasized to me the way that these larger structures are put in place to avoid accountability and to perpetuate a system of social control.”

ProPublica asked the insurance trust if it had instructed Dunne to act as he did, but the trust’s lawyer said the organization would not answer any of ProPublica’s questions because of the ongoing lawsuits.

The insurance cooperative was created in the 1980s to help small St. Louis-area municipalities share the cost of liability insurance and health care. The arrangement worked for the occasional slip-and-fall claim and other routine municipal litigation. But it has not held up well in the face of payouts to cops injured on duty and for actions by the police and the courts.

Most notably, the trust paid $1.5 million to Brown’s family in 2017 to settle a wrongful death claim against Ferguson. But that was hardly the only big hit in recent years. In 2016, a jury awarded $3 million to the family of Jason Moore, an unarmed 31-year-old man, who died after a Ferguson police officer delivered several shots from a Taser.

A state audit released in February showed the organization’s fund balance dropped to $3.8 million in 2018 from $12.2 million in 2016. Like many insurers, the trust also has its own coverage, known as reinsurance, and it turned to those carriers to help with the Moore verdict. But the companies have told the trust that they won’t cover the judgment in the Moore case because the companies allege the trust improperly notified them of the claim. The trust is suing the companies.

Dunne and his firm are no longer working on the Ferguson case. The firm was disqualified by the judge after it hired a lawyer from the ArchCity Defenders who represented one of the lawsuit’s plaintiffs in court.

De’carlon Seewood, who stepped down in March after three and a half years as Ferguson’s city manager, said resolving the lawsuit will help the community move beyond the abuses and the notoriety that came with them.

“It is important to kind of move forward and show that new face, that better face,” Seewood said this year, before he left Ferguson to become the city manager in Fairburn, Georgia, just outside Atlanta. Jeffrey Blume, Ferguson’s interim city manager, directed questions to the city’s attorney, who declined to answer.

Seewood said the city had hoped the insurance trust would take care of the settlement the way the insurer for the city of Jennings had. But Jennings was in a very different position. Its insurer was Travelers, the country’s sixth-largest property and casualty insurer. By contrast, the insurance trust is a small cooperative with dwindling funds.

“The insurance [trust] looked at the enormity of what’s being asked and they said that’s it’s outside their [coverage] of the city, and so the city finds itself fighting with its insurance company about [coverage],” Seewood said.

According to a memo written by the trust’s claims administrator, the plaintiffs originally asked for $27.5 million but during mediation in April 2016 reduced the demand to $9.5 million. That amount is what the plaintiffs believe, based on the policies, is the total coverage limit of Ferguson’s insurance.

Alexandra Lahav, a professor at the University of Connecticut School of Law and an expert in civil litigation, said a case like this typically would be resolved in about two years and said the insurance dispute was slowing the process.

“This really shouldn’t be a very complicated class action,” Lahav said.

Lisa Soronen, executive director for the State and Local Legal Center, a Washington organization that supports states and local governments in legal disputes that rise to the U.S. Supreme Court, said the dispute between the trust and Ferguson didn’t leave the city with many sound options other than fighting the case mightily.

“As a practical matter, Ferguson’s a really small city that has no money,” she said. “If there’s no insurance coverage and there’s a huge judgment, I don’t know how it would pay.”

John Rappaport, a professor at the University of Chicago Law School who has studied the impact insurance can have on police practices and policies, said insurance trusts have a reputation for being less likely than commercial insurers to settle cases involving police officers.

“The risk pools or the trusts, they see themselves as extensions of the cities themselves,” he said. “Their reluctance to settle litigation against the police would seem [to be] a kind of loyalty to their members — their cities.”

Rappaport said commercial insurers often see the issues as purely a matter of dollars and cents.

“Whereas if the city either is in a risk pool or the city represents itself, they see it as more of like a moral issue, like we have to stand up for our officers,” he said.

Even after the Ferguson suit is resolved, litigation in Missouri over “debtors prison” practices won’t be. ArchCity Defenders has lawsuits pending in six other cities, with more in the pipeline stretching beyond North County.

DeBerry, the Ferguson woman who was a named plaintiff in the Ferguson class action, was also a plaintiff in the lawsuit against neighboring Jennings, which settled for $4.8 million less than a year and a half after the suit was filed.

But the suit in Ferguson has dragged on longer than DeBerry could wait.

She died in April 2018.

“And now she will never even get a piece of this justice because she’s no longer here,” said Nelson, her daughter. “That’s sad, that’s really sad. It’s actually pathetic because it should have never come to that. It hurts.”

DeBerry died in April 2018. “And now she will never even get a piece of this justice because she’s no longer here,” Nelson said.

Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom.

African Hair Braiders Win! U.S. Supreme Court voids ruling

The U.S. Supreme Court on Tuesday vacated an appeals court ruling that supported a lengthy licensing process for hair-braiders in Missouri and ordered a judge in St. Louis to dismiss the case. The Supreme Court voided the 8th Circuit Court of Appeals opinion that upheld the previous cosmetology license requirements, because a new law, which is discussed in the background section, had already addressed it.

The Supreme Court didn't write a separate opinion, it simply reversed the 8th Circuit opinion. Therefore, the question of whether Missouri and other states within the 8th Circuit can require a cosmetology licensing for African hair braiders remains unanswered. However, the lawsuit which called the law into question in the first place is most likely the only reason the law was changed.

This case demonstrates why it is so important to understand and be able to use the law for your benefit. As we have said before, just because a law exists, doesn't mean it legitimate. You have a right and an obligation to question unfair and questionable laws!

Cases such as this is one of the reason Court.rchp.com exist; so people, especially those who have traditionally been oppressed can be empowered. Discover the hidden secrets of our legal and justice system with the information contained within Court.rchp.com.

Case Background

African hair braiders sue over Missouri law

Ndioba Niang and Tameka Stigers are professional African-style hair braiders in Missouri, but are not licensed as cosmetologists or barbers. The Missouri Board of Cosmetology and Barber Examiners required hair braiders to be licensed as cosmetologists or barbers even though African-style hair braiding is not included in the cosmetology or barbering school curriculum, and the licensing tests barely test on subjects related to the practice.

In order to obtain a Missouri cosmetology license, one must pass a background check, undergo substantial training, and pass an exam. Before sitting for the exam, an individual must have: (1) graduated from a licensed cosmetology school with at least 1,500 hours of training; or (2) completed an apprenticeship of at least 3,000 hours; or (3) completed similar training in another state. Alternatively, obtaining a barbering license requires at least 1,000 hours of training at a licensed barber school or completion of an apprenticeship of at least 2,000 hours. Completing the necessary requirements for a license would have forced Ms. Niang and Ms. Stigers to incur significant costs for irrelevant training. 

Four years ago, Ms. Niang and Ms. Stigers filed the federal lawsuit; they sued to vindicate their constitutional right to earn a living free of unreasonable government interference, and after losing in lower courts asked the Supreme Court to take their case. The original lawsuit, filed in 2014, complained that African-style hair-braiders were required to obtain a cosmetology license, which can cost thousands of dollars but doesn’t include any hair-braiding training.

When the lower courts considered the braiders’ challenge, they essentially ignored the evidence provided by the braiders that showed the licensing requirements were overly burdensome and did not sufficiently relate to the government’s asserted interests in public health and safety. In so doing, the lower courts applied a version of the rational basis test that is no more than a rubber-stamp of approval of government regulation. But that is not the proper application of the rational basis test.

The lawsuit was filed on behalf of Tameka Stigers, of Locs of Glory in St. Louis, and Ndioba “Joba” Niang, who runs Joba Hair Braiding in Florissant. Both have performed the hourslong braiding process for years without licenses and say they fear prosecution. 

one Tameka Stigers

Joba Hair Braiding owner Ndioba Niang, a native of Senegal who later lived in France, said she completed 1,000 of the required 3,000 hours of cosmetology training at a cost of thousands of dollars before dropping out.

Ndioba Niang

In 2016, U.S. Magistrate Judge John Bodenhausen upheld the requirements, and the 8th U.S. Court of Appeals agreed in January. A petition for writ of certiorari was filed on April 11, 2018 with the U.S. Supreme Court. However, the Missouri Legislature passed House Bill 1500 which eased the rules on hair- braiding, although those new rules have yet to take effect.

The Institute for Justice, which has filed suits across the country against regulation of various occupations, said the appeals court decision in the Missouri case was in conflict with other federal courts and the Supreme Court. Both the group and the Missouri attorney general asked the court to dismiss the case because of the change in the law, they said.

In May, the Missouri legislature passed a law easing requirements on hair-braiding that made the four-year lawsuit moot. Braiders are now exempted from the cosmetology license and a new specialty braiding license only requires that braiders pay a fee of $20, watch a four- to six-hour instructional video and submit to board inspections. Attendance at a licensed cosmetology school in Missouri can cost more than $16,000.

The Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Passed during Reconstruction, these provisions held the promise that freedman would finally be granted the same rights and protections as their white brethren. Yet less than five years after this amendment was enacted, the Supreme Court eviscerated the Privileges or Immunities Clause in what became known as the Slaughter-House Cases (1873).

Slaughter-House eventually led to the development of modern “substantive” due process doctrine as a makeshift bandage over the hole in the Fourteenth Amendment left by the unprotected privileges and immunities. While allowing the Court to protect some rights, the “incorporation” of certain rights through the Due Process Clause relegated other, often “economic” rights to second-class status. Instead of judges’ taking a hard look at the actual reasons a law was passed and asking whether the government has overstepped its constitutional bounds, infringements of the right to earn a living or the freedom of contract barely receive a passing glance. They are upheld unless nobody—not even the judge hearing the case!—could possibly imagine a legitimate rationale for the law. Suffice it to say, hardly any laws are struck down under this so-called rational-basis test.

Enter Ndioba Niang and Tameka Stigers, both of whom are traditional African-style hair braiders attempting to support themselves by offering their services to willing customers. The Missouri Board of Cosmetology and Barber Examiners, however, demands that they first pay thousands of dollars to receive completely irrelevant training that has virtually nothing to do with hair-braiding. Applying the usual government-can-do-whatever-it-wants-regarding-economic-regulations level of judicial scrutiny, both the federal district court and the U.S. Court of Appeals for the Eighth Circuit upheld the licensing scheme.

You Shouldn’t Need a License to Braid Hair

This approach is wrong: ethically, historically, and legally. There is a long and well-documented history recognizing the right to earn an honest living as being at the center of the Anglo-American legal tradition and indispensable to the maintenance of a free and open society. Industry insiders often lobby for licensing laws and regulations—and then populate the boards or agencies tasked with enforcing the new rules as a means of limiting their competition. By contrast, those harmed are often politically powerless groups with limited means to fight back. But as long as the government says the magic words of “safety,” “health,” or “consumer protection” in asserting its restrictions, courts are content to turn a blind eye.

Because the right to earn a living is one of the basic rights that our Constitution was formed to protect, Cato has filed an amicus brief supporting the hair-braiders’ petition to the Supreme Court. We ask that the Court take Niang v. Tomblinson and establish that courts must meaningfully examine government incursions against this essential liberty, regardless where in the Fourteenth Amendment it finds the relevant right.


The background section was reprinted with permission under license from Cato at Liberty, with additional edits from other sources. 

White Cop found Guilty of Murder for Killing Black Teen

A Texas jury found a white former police officer who shot and killed Jordan Edwards, an unarmed black teenager last year guilty of murder. 

Roy Oliver fired three rifle rounds into a car full of teenagers, which included Edward's sixteen year old brother who was driving and another brother, as they were leaving a party in the Dallas suburb of Balch Springs in April 2017. Fifteen-year-old Jordan Edwards, who was unarmed and sitting in the passenger seat, was struck and killed. Edwards was a first-year student at Mesquite High School where he played football. 

The Texas high school football team that Jordan Edwards had been a part of prior to his untimely death

Edwards' brother was held in police custody overnight for the purpose of questioning him as a witness. Police originally claimed there was alcohol present, during the trial, the jury learned there was no alcohol present at the party, despite what police had initially said. 

"It's been a hard year … I'm just really happy," Edwards's father, Odell, told reporters at the court after the verdict on Tuesday. 

Jordan Edwards with his father, Odell, in a family photo.

At the time of the shooting, Oliver claimed the vehicle was trying to run over his partner, but several witness accounts and body-cam footage showed the car was moving away from the officer. A vigil was held at Edwards's school on the evening of May 1, 2017. A lawyer for Edwards' family demanded the arrest of Oliver.

Oliver was placed on administrative leave following the shooting and fired from the Balch Springs police force on May 2, 2017 after police admitted the video of the shooting contradicted Oliver's initial statement. 

Police originally stated there was an "unknown altercation with a vehicle backing down the street towards the officers in an aggressive manner". After reviewing body cam footage, Police Chief Jonathan Haber later admitted that the vehicle was not moving toward the officers, but rather away from them.

Local reporters, who were present in the courtroom on Tuesday as the verdict was read, reported that there were hugs, claps and cheers from the family of Edwards. 

Oliver faces between five and 99 years in prison for the murder. His sentencing hearing began immediately after the trial. The former police officer was acquitted of manslaughter and aggravated assault. 

Daryl Washington, Edwards's lawyer, said the verdict is not just about justice for the young teenager's family but for the families of all unarmed black people killed by police. 

"This case is not just about Jordan," Washington told reporters, adding that "it's about Tamir Rice, it's about Walter Scott, it's about Alton Sterling, it's about every unarmed African American who has been killed and who has not got justice". 

According to the Washington Post Fatal Force database, more than 980 people were killed by police in 2017. 

The Guardian identified more than 1,090 police killings the previous year.

Nearly a quarter of those killed by police in 2016 were African Americans, although the group accounted for roughly 12 percent of the total US population.

According to watchdog group The Sentencing Project, African American men are six times more likely to be arrested than white men.

These disparities, particularly the killing of African Americans by police, has prompted the rise of the Black Lives Matter movement, a popular civil rights movement aimed at ending police violence and dismantling structural racism.


For additional information and details, see: "Flashback: Jordan Edwards' stepbrother recounts harrowing night, hearing cop's fatal shots," from the Dallas Moring News which includes links to 38 other articles related to Jordan Edwards.

The long history of separating families in the US and how the trauma lingers

There are two ways to enter the United States, legally or illegally. Entering the country illegally is a crime. If I commit an illegal act, no matter how well intentioned my actions are, I will be subject to arrest. If I am arrested with small children, I would have no reasonable expectation of not being separated from my my children.

Yes, many laws are unfair. Black people in the U.S. have been subject to walking and driving while black, and other while black actions have been criminalized including most recently, barbecuing and StarBucking while black. It is almost universally recognized that when you are arrested, even if you're arrested unfairly, your children will be separated from you while under arrest.

The worst example of forced child separation occurs within our criminal justice system. Just as the forced removal of Indian children became illegal in the late '70s, the United States began an accelerated process of mass incarceration that quintupled the number of U.S. prisoners. 

Many people spend weeks, months and even years locked up while they await trial, half a million of the 2.3 million people behind bars are simply there because they are too poor to pay bail  (even though we know that money bail only marginally impacts court attendance). Many of these mostly nonviolent people end up losing their jobs, homes or custody of their children before they’ve even had a chance to plead their case in court. 


By Jessica Pryce, Florida State University

During the last few weeks, hundreds of families have been separated, following the Trump administration’s “zero tolerance” policy towards illegal immigrants. Even though the separations have reportedly stopped, it is not clear when the families will be unified. There are also reports of children being possibly put in foster homes and at least one teenager missing, after walking out of a shelter.

File 20180625 19385 set6mn.jpg?ixlib=rb 1.1
Immigrant children play inside the Catholic Charities RGV in Texas. AP Photo/David J. Phillip

This is not the first time that children have been separated. Exclusion and separation has impacted African-Americans during slavery, Native Americans during the Trail of Tears, and Japanese-Americans during internment, to name a few.

As a scholar who is actively engaged in child protection research and who examines the unnecessary removals of children from their parents, I am all too aware that the repercussions of such policies often take a lifetime to undo.

History of separating families

During the years of slavery, there was daily buying and selling of children from their enslaved parents. No legal restraints existed on slave owners, who chose to dispose of their property as they saw fit.

Another period of state-sanctioned separations was in the 1800s, after President Andrew Jackson authorized the Indian Removal Act. Native Americans, mostly youth, were forcibly taken out of their homes and communities and asked to walk for miles to a specially designated “Indian territory.” Thousands died on that journey. It has since been named the “Trail of Tears.”

The government, nonetheless went ahead with its policies and mandated that Native American children be educated apart from their families in boarding schools. This was a method of creating a distance between children and their Native American parents so that they would slowly let go of their native values – what scholars today describe as forced assimilation.

This practice went on until the passing of the Indian Child Welfare Act of 1978 when Native American parents were given the legal right to refuse boarding school education.

The internment of Japanese-Americans was also a time of enactment of exclusionary policies by the American government. President Roosevelt ordered that Japanese, many of them United States citizens, be forcibly removed and held in camps. Children, even infants, were placed in these camps with their parents, and sometimes without.

As is being done today, these separations were staunchly defended and rationalized, without much consideration of the negative and long-lasting trauma.

The long-term impact

Recent research on the impact of family separation during slavery focuses on the trauma that has been passed down over the years.

Scholar Joy DeGruy, in her seminal book “Post Traumatic Slave Syndrome,” describes the impact of that history on black families today.

It is “common sense,” adds DeGruy, who has spent many years researching the multigenerational trauma, that hundreds of people who endured slavery would continue to pass on behaviors, such as anger, violence and shame, down to contemporary generations.

Scholars have also researched the impact of American Indian boarding schools. Their findings included reports of abuse in boarding school and how that manifested in their later years. As children, they were found to have high levels of depression. Research has also linked the adverse childhood experience of boarding school with difficulty in managing stress as adults.

Within the foster care system, scholars have long researched the harm in multiple placements, meaning moving children from one foster care placement to another. Children who experience such unstable placement experience, after being separated from their families, suffer from profound distress and a loss of belonging.

The trauma of separation leaves deep physical and psychological impact that carries into adulthood. This essentially means the healthy development of a child is disrupted in many ways.

Separation of families in 2018

The consequences of adverse childhood experiences can be minimized if a child is in a loving and nurturing environment where they feel safe and are able to acquire appropriate ways to cope.

The ConversationThese past comparisons bring us to what is occurring today. President Trump’s executive order has stopped any additional separations, but it does not undo the damage that has already been set in motion.


Re-published with permission under license from The Conversation

Jessica Pryce, Executive Director, The Florida Institute for Child Welfare, Florida State University

Going to Court Without a Lawyer? Prepare Yourself!

Court.rchp.com exist to help people gain legal information so they can help themselves. After losing our jobs and having several legal actions filed against us, my wife and I performed legal research and won the majority of our cases. Unfortunately, we didn't observe anyone else win even though the court room was filled with people. We understand the fear and uncertainty that exist when you get that court summons and don't know what to do. However, turn that fear into action and that uncertainty into knowledge. Begin learning what you must do in order to increase your chances of winning.


Every year, millions try to navigate US courts without a lawyer

File 20170918 8285 10khwo2.jpg?ixlib=rb 1.1

Going to court? You’re on your own. tlegend/shutterstock.com

Judge Richard A. Posner, a legendary judicial figure, retired abruptly last month to make a point: People without lawyers are mistreated in the American legal system.

In one of his final opinions as a judge on the United States Court of Appeals for the Seventh Circuit, he expressed frustration at the dismissal of one self-represented litigant’s lawsuit, writing that the prisoner, Michael Davis, “needs help – needs it bad – needs a lawyer desperately.”

Unfortunately, Davis’s circumstances are far from unique. Many lower-income people have no lawyer to help them navigate the legal system, either in civil or criminal cases.

Eighty percent of state criminal defendants cannot afford to pay for a lawyer, and only those who are actually incarcerated are constitutionally entitled to appointed counsel. Many people facing misdemeanor charges can, if convicted, be subjected to significant fines and fees, or face the loss of benefits (including housing) or deportation. Yet, they have no right to an attorney, and those who cannot afford a lawyer will go without one.

Unlike in the criminal context, there’s no federal constitutional right to counsel in civil cases. Civil cases can involve a range of critical issues, including housing, public benefits, child custody and domestic violence. And while some civil litigants may be entitled to counsel in certain jurisdictions, in most of these cases, people who cannot afford a lawyer will be forced to go it alone. Doing so may mean that they fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case.

As directors of the Center for Access to Justice at Georgia State University College of Law, we agree with Judge Posner. People like Michael Davis desperately need help. Without legal assistance, their issues will likely be unresolved or, worse, wrongly resolved against them.

Unrepresented

In some states, as many as 80 to 90 percent of litigants are unrepresented, even though their opponent has a lawyer. The number of these “pro se litigants” has risen substantially in the last decade, due in part to the economic downturn and the relationship between poor economic conditions and issues like housing and domestic relations.

The Legal Services Corporation, the single largest funder of civil legal aid for low-income Americans in the nation, reported in June that 86 percent of low-income Americans receive inadequate or no professional legal help for the civil legal problems they face. Here in Georgia, state courts heard more than 800,000 cases involving self-represented litigants in 2016 alone.

In some types of cases, not having counsel can make a dramatic difference. Take the example of low-income tenants facing eviction. Across the county, roughly 90 percent of landlords are represented by counsel, while 90 percent of tenants are not. Simply having a lawyer increases the odds of being able to stay in one’s home. When tenants represent themselves in New York City, they are evicted in nearly 50 percent of cases. With a lawyer, they win 90 percent of the time.

Navigating the system

Why is having a lawyer so important? The reality is that even the most mundane legal matters can require dozens of steps and complex maneuvering.

In one study, researchers identified almost 200 discrete tasks that self-represented litigants must perform in civil cases – from finding the right court to interpreting the law, filing motions, compiling evidence and negotiating a settlement. Some of these tasks require specialized knowledge of the law and of the court system. Almost all require time away from work and caring for children. Many also require the ability to get to the courthouse, to read and to speak English or access a translator.

The Access to Justice Lab at Harvard Law School has also tracked how labyrinthine the justice system can be. Just starting a routine process – like establishing a legal guardian for a minor – can take many steps, and even these can vary in unexpected ways, given the natural variation among judges and the particulars of a specific case.

Regardless of the type of case, missing just one step could mean you have to start the process all over again or even cause the case to be dismissed, sometimes without the option to refile.

People often quip that there are far too many lawyers. Yet the reality is that, while there are a lot of lawyers in certain geographic areas and certain specialties, in many rural areas – sometimes referred to as “legal deserts” – there are actually far too few lawyers.

Our center recently published a map of Georgia’s legal deserts. In our state, there are five counties without any lawyers at all and another 59 with 10 lawyers or fewer.

To make matters worse, in many of those counties, public transportation and internet access are sparse, and a significant percentage of the population doesn’t even have access to a vehicle.

The Self-Represented Litigation Network, a nonprofit focused on reforming the system to help those representing themselves, has also used mapping tools to depict how access to the justice system can vary across the country and sometimes even within the same state.

Changing the statistics

So, what do we do about the fact that the legal system is, for many people without a lawyer, nearly impossible to navigate? We believe that it will take a variety of different approaches to solve this issue.

Some experts, like John Pollock with the National Coalition for a Civil Right to Counsel, have focused on expanding the right to counsel in civil cases implicating basic human needs. Others have advocated for expansion of the right to counsel in lower-level criminal cases where the consequences – including obstacles to housing or employment, or deportation – can still be incredibly high.

In Washington, nonlawyers can be trained and licensed to offer legal support to those unable to afford the services of an attorney.

Still others, like Self-Represented Litigation Network founder Richard Zorza, emphasize simplification of legal processes, including changing or eliminating the procedural and evidentiary rules that make the process so difficult. For example, the Tennessee Supreme Court has approved plain-language forms and instructions, written at a fifth- to eighth-grade reading level, for use in uncontested divorces between parties with minor children.

Maybe it’s a matter of increasing available self-help resources or placing the onus on the courts and requiring judges to play a more active role in solving the problem.

Which approach is best? It may depend on the case – and an effective solution will include a combination of the above. Some cases will require nothing less than full-service representation by a lawyer, while in other contexts, streamlined procedures and simpler forms may be sufficient for pro se litigants to get a fair shake.

The ConversationWhatever the solution, the problem is clear: Self-represented litigants’ grievances are real and, for too many, justice is out of reach.

Lauren Sudeall Lucas, Associate Professor of Law; Faculty Director, Center for Access to Justice, Georgia State University and Darcy Meals, Assistant Director, Center for Access to Justice, Georgia State University


Republished with permission under license from The Conversation

The Freedom Plea: How Prosecutors Deny Exonerations by Dangling the Prison Keys

New evidence pointed to innocence in the cases of these four Baltimore men, yet prosecutors would only let them go if they agreed to controversial plea deals.

by Megan Rose

Despite new evidence undermining the convictions of at least eight men for violent crimes in both Baltimore City and County over the last two decades, none were exonerated. Instead, they left prison only after agreeing to plea deals with state prosecutors. In each case, the men took either Alford pleas, in which defendants can maintain their innocence for the record, or were given time-served arrangements. With these deals, the defendants were granted their freedom, but gave up the right to clear their names. (Two additional men took similar deals but years later were fully exonerated after more exculpatory evidence was found in the police files.)

ProPublica’s examination of these cases reveals a troubling pattern — one that legal experts say plays out across the country. Persuasive innocence claims were met with refusals by the state’s attorney’s office to reexamine the cases, sometimes despite — or perhaps because of — discoveries of official misconduct. Prosecutors often fought for years to prevent the consideration of any new evidence or the testing of old evidence for DNA. Or they accommodated contrary new facts by stretching their theories of crimes. If the DNA in a rape case, for example, didn’t match the defendant, prosecutors would assert that another unknown assailant was involved, too. When judges ordered new trials or granted writs of innocence, prosecutors started bargaining for plea deals that would maintain the convictions.

Over time, prosecutors have defended their decision to seek deals, claiming in each case that they still believed in the defendants’ guilt. They also argued that given the amount of time passed, the cases would be difficult to retry.

But Michele Nethercott, the head of the Innocence Project Clinic at the University of Baltimore School of Law, said with these cases, “often, the truth doesn’t seem to matter much.”


George Seward

  • Convicted: 1985
  • Released: 2016
  • Type of Deal: Alford plea
  • Crime: Rape
George Seward with his mother on the day of he got out of prison after 32 years. A judge had granted him a writ of innocence, but prosecutors vowed to retry him. He took an Alford plea to guarantee his immediate release.

The Original Case

The white victim identified him 10 weeks after the crime. The victim’s ID of Seward, an 18-year-old black man who had a moustache and goatee at the time of the murder, conflicted with her contemporaneous description after the attack of a clean-shaven assailant. Neither the fingerprints nor biological evidence from the crime matched Seward.

New Evidence Later Discovered

Seward’s employment records as a part-time dog washer, which were discovered 12 years after the trial, showed he’d been at work the day of the shooting. His boss also testified she kept the shop locked and it would have been “impossible” for him to have left.

Prosecution Reaction

Fought for the next 19 years, arguing, in turn, that the records weren’t admissible as new evidence and shouldn’t be given any consideration; that they didn’t provide an alibi because no hours were specified; and that they bolstered the case against Seward because the shop was near the victim’s house. One of the prosecutors on the case, John Cox, also told ProPublica that the records’ discovery so long after the trial meant they couldn’t be trusted.

Baltimore County State’s Attorney Scott Shellenberger said recently that because the victim saw her attacker up close, he wasn’t concerned that the case rested on a cross-racial identification. (That type of ID has been shown to be less reliable because people are generally bad at distinguishing facial features of people who aren’t their own race. Of the 351 people exonerated by DNA evidence since 1989, the national Innocence Project found that 41 percent had been convicted on mistaken cross-racial identification.)

How the Deal Happened

Judge said the employment records “thoroughly exculpate[d]” Seward and granted a writ of innocence. The state appealed and eventually lost. “The state’s immediate reaction was to offer a plea,” said Shawn Armbrust, of the Mid-Atlantic Innocence Project and one of Seward’s lawyers.

Shellenberger said that he’d been confident about the case and wanted to go to trial, but the victim didn’t want to testify again. “Keeping something on the record was extremely important to us.”

Why Defendant Agreed to Deal

Seward first turned prosecutors down, but then, as he awaited a new trial, a close friend was stabbed in prison. Seward had nine months before the trial began, so he reconsidered.


Jesse Barnes

  • Convicted: 1972
  • Released: 2011
  • Type of Deal: Time served
  • Crime: Murder
Barnes was convicted of murder when he was 17 based off of nothing more than his uncorroborated confession, which also described a violent rape.

The Original Case

Based solely on Barnes’ confession made after 31 hours in custody. A largely illiterate 17-year-old with a low IQ and no prior record, Barnes’ police-typed statement conflicted with the evidence in the case in major ways, such as how and where the 15-year-old female victim was killed. And he had an alibi for the time of the murder. (Barnes’ confession also incriminated two others, but no one else was charged.)

New Evidence Later Discovered

In 2009, 37 years after Barnes’ conviction, DNA evidence collected from the victim’s body was tested and excluded him from any sexual assault, further undermining his confession, which had described a violent gang rape that included Barnes and another man ejaculating. The DNA, which only came from one male, also excluded one of the other teenagers implicated in Barnes’ statement.

Prosecution Reaction

Prosecutor Sharon Holback said at the time that the state “vehemently and firmly believes that [Barnes] was fairly and properly convicted.” She argued that his confession was sound and that the third person implicated in it must have been the source for the DNA. That man couldn’t be found for comparison testing. (Holback was also the prosecutor who handled the post-conviction hearings in the case of James Thompson, whose rape and murder conviction was undermined by DNA testing, but was offered an Alford plea.)

How the Deal Happened

Judge Yvette Bryant went many months without issuing a ruling on the case, so Barnes’ lawyer took the innocence claims directly to Gregg Bernstein, who recently had been elected as Baltimore City state’s attorney on a reform agenda and had started a conviction integrity unit. The fighting over Barnes’ post-conviction motions had happened under Bernstein’s predecessor, so he had not publicly committed to any position. He was also free of one common concern prosecutors face when dealing with potentially wrong convictions: angry relatives of the victim who don’t want the case to unravel. With Barnes, the victim’s family so believed in his innocence that they had hired a lawyer to defend him.

Bernstein, who said recently that he didn’t recall the case, would concede only that Barnes didn’t deserve to be in prison anymore, seizing on a mistake in sentencing. The judge who had sentenced Barnes had thought wrongly that his only option was life.

Why Defendant Agreed to Deal

Barnes was 57 years old, had been in prison for more than 40 years and was in failing health. “I had to say to him ‘I’m confident in the end we will vindicate you, but it might be 1, 2 years or even 4 to 5 years, and there’s no guarantee,’” said Barnes’ pro bono lawyer, Michael Imbroscio, noting it was “the most difficult conversation I’ve ever had in my 22-year legal career.”


Wendell Griffin

  • Convicted: 1982
  • Released: 2012
  • Type of Deal: Time served
  • Crime: Murder
Wendell Griffin walked out the back door of a Baltimore courtroom on May 23, 2012, free for the first time in nearly 31 years. Griffin, who’d been convicted of murder, was let out on a time-served deal after evidence pointing to his innocence was discovered buried in a police file. 

The Original Case

A neighbor testified that she saw Griffin before and after the murder with a gun, and a second neighbor, who was 150 feet away, said she heard Griffin make threatening remarks the night of the murder. A set of keys found about 90 feet from the crime scene was connected to Griffin, who lived in the neighborhood.

New Evidence Later Discovered

In 2011, significant evidence was found in the police’s files that had never been given to the defense: three photo lineups in which eyewitnesses failed to identify Griffin and eight witness statements that either incriminated another suspect or contradicted the testimony used to prosecute Griffin.

One eyewitness pointed to Griffin’s picture in the lineup and said that he looked like the suspect, “but it’s not him.” Griffin’s picture was nine years old, so detectives went back to that witness and showed her another array with a current picture. She still did not identify him. Nonetheless, detectives used her description of the suspect to get a search warrant for Griffin’s home — never mentioning that she’d twice failed to pick him out of a photo array. The warrant also cited a neighbor who saw a man with a gun, but left out that he said the man wasn’t Griffin.

“There was pretty powerful evidence of innocence that was buried by the state,” Steve Mercer, Griffin’s attorney, said.

Prosecution Reaction

Baltimore City prosecutor Michael Leedy denied that the evidence represented a Constitutional violation. (In 1963, the U.S. Supreme Court declared that the state must turn over all favorable information to the defense in order for a trial to be fair, which has come to be known as the “Brady” requirement.) Leedy wouldn’t agree to a new trial.

How the Deal Happened

When a judge, who called the evidence “earth shattering,” indicated she’d be ordering a new trial, Leedy shifted, saying that although he didn’t believe “there were, in fact, any Brady violations” the allegations were “plausible enough” that he’d “concede to a resentencing on this matter.” This was the “best course,” Leedy said, to “ensure that Mr. Griffin will for the rest of his life remain convicted for the murder of James Wise.”

Leedy also wanted it on record that by accepting the deal Griffin gave up the right to an actual innocence ruling.

Why Defendant Agreed to Deal

Griffin was 61, knew his best years were gone and he might “die in here.” Having spent nearly 31 years in prison, he didn’t have it in him, he said recently, to wait another year-and-a-half for a new trial. But he is now trying to withdraw his deal, so he can clear his name and sue over the Brady violations. Marilyn Mosby, the current state’s attorney who ran in part on a platform of police accountability, is fighting his motion. (Her spokeswoman didn’t respond to multiple requests for comment.) A hearing is set for November.


Antoine Pettiford

  • Convicted: 1995
  • Released: 1998
  • Type of Deal: Alford plea (exonerated in 2000)
  • Crime: Murder
Antoine Pettiford was convicted of murder in 1995, but was let out on an Alford plea three years later when a court ruled that the detectives and prosecutors deliberately withheld evidence from the defense. He was fully exonerated in 2000 after more evidence came to light. Pettiford was killed in 2015.

Original Case

Pettiford, 23 and with a record, was identified as one of two shooters by two eyewitnesses and was tied to the murder weapon by a suspect in a related crime. But at trial, the witnesses said they’d been mistaken and the suspect said he’d lied about the weapon. Late in the trial, prosecutors produced a new witness who identified Pettiford. Pettiford had an alibi and no motive.

According to The Baltimore Sun, before the judge sentenced Pettiford to life plus 20 years, he said: “I don't care if every witness that appeared in the trial — including the detectives — come back here and say it was all a farce and it was all false and it was all wrong. I think justice was done.”

New Evidence Later Discovered

A year later, a separate federal drug investigation led to a different suspect in the murder, who pleaded guilty in federal court and told investigators that Pettiford had nothing to do with the crime.

There was also evidence that had never been given to the defense: a three-page statement from a friend of the victim that said he was the intended target and pointed to the same suspect prosecuted by the feds; a police bulletin that named that same suspect in connection to the murder; a statement from an eyewitness who identified the second shooter as someone the federal prosecutors thought was involved; and a police report naming that second person as a suspect.

Prosecution Reaction

Baltimore City prosecutor Nancy Pollack, who had handled the trial, didn’t act on the information federal prosecutors gave her suggesting Pettiford was innocent. Michelle Martz, Pettiford’s lawyer, said she went repeatedly “to beg and plead for [prosecutors at the time] to do something. I was floored the state wouldn’t be more concerned that they might have the wrong guy.”

How the Deal Happened

At the end of a post-conviction hearing, at which a detective revealed the existence of the three-page statement implicating someone else, the judge ordered Pollack to turn over everything in her files. Pollack agreed to a new trial and offered the plea.

Why Defendant Agreed to Deal

Pettiford, scared of what the prosecutors might do during a second round, had only one question: “Do I have to go back to prison if I take it?” He accepted the Alford plea, walked down the courthouse steps and into his family’s waiting car.

How He Was Later Exonerated

A year after the Alford plea, The Baltimore Sun newspaper exposed that the state had suppressed even more evidence and that a detective had misled the defense. In response, the judge vacated the Alford plea, saying it had been “a miscarriage of justice,” and the state declined to prosecute again. Pollack, who declined to comment, had already resigned, but the Baltimore Police Department found that the detective did nothing wrong. That detective was also named in a lawsuit filed by Sabein Burgess, who was wrongfully convicted in 1995 and exonerated in 2014.


See Related Story

What Does an Innocent Man Have to Do to Go Free? Plead Guilty.

A case in Baltimore — in which two men were convicted of the same murder and cleared by DNA 20 years later — shows how far prosecutors will go to preserve a conviction.

Republished with permission under license from ProPublica