Posted May 1, 2010 By Raja Abdulrahim, Los Angeles Times

Orange County pays $750,000 to settle suit by former jail inmate

Orange County has paid $750,000 to settle a lawsuit brought by a former jail inmate who alleged he was Tasered while handcuffed and slammed to the floor by sheriff's deputies. The incident was captured on video.

The settlement was approved by county supervisors and paid out in early March, according to a spokesman for the county's chief executive office.

The lawsuit stemmed from the March 2006 arrest of Matthew Fleuret on suspicion of obstructing a deputy after getting into a bar fight on St. Patrick's Day. He was never prosecuted.

The videos, which became public after Fleuret filed a $47.5-million suit alleging excessive force, show him being placed in a holding cell at Orange County Jail and held on the floor by at least five deputies, one of whom pulls Fleuret's arms back while others repeatedly shock him with the Taser over a period of about 13 minutes.

Fleuret's attorney said his client was shocked 11 times.

In internal sheriff's reports at the time, deputies said Fleuret was intoxicated and uncooperative.

But Assistant Sheriff Tim Board said that since the incident, much has changed within the department regarding use of force. He cited the appointment of Sheriff Sandra Hutchens in 2008 as a motivator for reform.

"She has done a lot, she absolutely understands systems of accountability and risk management," Board said. "We're essentially a completely different department since 2006."

At the time Hutchens was appointed - in the wake of former Sheriff Michael S. Carona's resignation after he was indicted on corruption charges - the department was in the midst of the fallout from the 2006 fatal beating of an inmate at the hands of other prisoners not far from the glass-walled guard station.

A grand jury report in 2008 called the deaths of two inmates after being Tasered a "cause of alarm" and reported that jail staff used Tasers on 437 inmates from 2004 to 2007.

Board said one of the first things Hutchens did was conduct a complete review of use-of-force policy and bring it more into line with industry standards. He didn't know whether the number of use-of-force incidents had declined since then.

He said the department's training programs pertaining to the use of force have also been updated. All sergeants and lieutenants have gone through a 16-hour training program, Board said, and deputies are in the process.

However, the American Civil Liberties Union said the changes did not go far enough and urged the department to limit the use of Tasers to incidents in which there is a threat of death or serious injury.

Copyright C 2010, The Los Angeles Times

Posted May 1, 2010 By EDMUND H. MAHONY

Justice Department Won't Appeal $102 Million Verdict In Boston Wrongful-Conviction Case

The tortured legal ordeal of four Boston men wrongly convicted of murder by a cabal of gangsters and corrupt FBI agents apparently ended Friday with a decision by the U.S. Department of Justicenot to appeal their record, $100 million wrongful imprisonment verdict to the U.S. Supreme Court, lawyers involved in the case said Friday.

The government had not appealed by a 5 p.m. deadline Friday, which lets stand an August 2009 decision by the U.S. 1st Circuit Court of Appeals upholding what is believed to be the largest verdict ever awarded in a wrongful imprisonment case, $101.7 million.

The four men spent decades in prison after FBI agents, in a scheme to cultivate mob informants, permitted the fabrication of evidence that led to their wrongful convictions for a 1965 murder.

The Justice Department's decision not to pursue another challenge of the verdict, awarded in July 2007 in Boston by U.S. District Judge Nancy Gertner, is the latest in a half-century of legal developments arising in Boston about ruthless mob violence and shocking corruption by key figures in law enforcement. In its opening lines, Gertner's decision spoke of "egregious governmental misconduct," a "bullet-ridden" body, and the FBI's "callous disregard" for the four victims, referred to throughout as "the scapegoats."

Barring unexpected legal developments, the judgment will be divided among Joseph Savati, Peter Limone Sr. and the estates of the two other men, Henry Tameleo and Louis Greco Sr.

Tameleo and Greco died of old age in prison before a sensational series of legal developments beginning in the late 1990s proved that they had been framed by mob turncoats with the knowledge of agents at the highest levels of the FBI.

Three of the victims were reputed organized crime figures in Boston and were believed to have been framed to settle old disputes. Salvati, who had no connection to organized crime, was wrongly implicated in the murder because he had borrowed $400 from one of the turncoats and did not repay it quickly enough.

The FBI agents named in the wrongful imprisonment case were the same figures implicated two decades later in what became a sensational attempt by members of Boston's notorious Winter Hill gang to take over a significant portion of the U.S. parimutuel gambling industry. Oklahoma tycoon Roger Wheeler, whose World Jai Alai company owned the jai alai venue in north Hartford, was one of those shot dead in a conspiracy by then-current and retired FBI agents and mobsters in the takeover attempt.

Salvati's lead attorney in his lawsuit against the federal government was Hartford lawyer Austin J. McGuigan, who was joined in Hartford by his partner Joseph Burns and in Boston by attorney Victor J. Garo, whose early work on the case resulted in Salvati's being freed from prison after more than 30 years in 2001.

McGuigan said Friday that he was encouraged by the government's decision not to appeal. When the 1st Circuit upheld Gertner's damage award, McGuigan called the decision "the greatest experience of my legal career in terms of being able to right a wrong that had been perpetuated for so many years."

The 22-day bench trial before Gertner in 2007 amounted to a painstaking re-creation of events that began with the 1965 murder in Chelsea, Mass., of a nickel-and-dime hoodlum named Edward "Teddy" Deegan.

Salvati and the other victims produced as evidence hundreds of previously secret FBI reports showing that their innocence was widely known in the FBI within minutes of Deegan's murder. Nearly all the reports were routinely forwarded to the office of then-Director J. Edgar Hoover.

Deegan's real killers were the two mob turncoats that the FBI was trying to recruit as informants: Joseph "The Animal" Barboza and James Flemmi. Both were cold-blooded killers. An illegal FBI bug captured Flemmi bragging at about the time of the murder that he wanted to be Boston's most prolific hit man.

After Deegan was riddled with bullets in an unlit alley, FBI agents allowed Barboza to implicate the innocent men on the condition that he become a cooperating witness in a series of late 1960s mob prosecutions. Barboza agreed on the additional condition that his partner be kept out of the Deegan case as well.

In the trial court decision, Gertner wrote that the FBI records, which had been illegally concealed for decades, created a strong case against the bureau: "The FBI agents 'handling' Barboza ... and their superiors - all the way up to the FBI Director - knew that Barboza would perjure himself. They knew this because Barboza, a killer many times over, had told them so - directly and indirectly. Barboza's testimony about the plaintiffs contradicted every shred of evidence in the FBI's possession at the time - and the FBI had extraordinary information."

Copyright C 2010, The Hartford Courant

Posted April 26, 2010 By ERIC NALDER

Is refusing to show ID grounds for arrest? Depends on the state

When in doubt, just identify yourself when a cop asks, said Jim Chanin, a prominent civil rights lawyer in Oakland, Ca.

But if you are arrested for not providing identification in California, you owe it to others to fight it in court, he said. Chances are the collaring was illegal, and the initial contact between a cop and a citizen is a place where constitutional rights are paramount.

"I would fight those cases and I might consider suing as a result," he said.

But knowing for sure whether you must identify yourself to a cop will take some research. It depends on where you are.

In states like California and New York, the courts have ruled you can't be busted for balking on ID, said Santa Cruz lawyer Katya Komisaruk, who has practiced in both states and written on the subject. Some attorneys say in Washington you can ignore a command to stop if you are innocent of any crime.

In 2004, the U.S. Supreme Court upheld a Nevada law that says cops can bust you for withholding an ID, if they have reasonable suspicion you were involved in a crime. Other states have similar "stop and identify" laws, with variations, but the high court could still test them someday.

If you are driving, of course, you must produce a driver's license when stopped because motoring is a privilege.

The nation's various obstruction, "stop and identify" and "stop and frisk" laws are so vague "you can chose to enforce it against whoever you want to," said Jeffrey Fagan, a law professor at Columbia and Yale. "This has severe consequences."

They're also known as "contempt of cop laws" or "cover charges", because police are suspected of using them to punish attitude or justify injurious force.

A Seattle Post Intelligencer investigation two years ago and a New York City probe co-authored by Fagan six years ago found that obstruction and "stop and frisk" laws were substantially targeting blacks over whites.

Several lawyers said even in states where there aren't "stop and identify" laws, abuses occur too frequently.

"The most common times I see it are when someone is injured by a police officer. Or someone flunks the attitude test," said Chanin, who helped write Oakland's police review commission ordinance 38 years ago.

Seattle Police Department spokesman Sgt. Sean Whitcomb admitted his departments' officers interpret the city's obstruction law differently depending on their point of view. He said it has been a hot topic among officers, partly because the laws are vague. Whitcomb, and others, would like Washington's local and state laws revised to be more specific about the cause of arrest.

Decades ago, the U.S. Supreme Court eliminated similarly vague vagrancy laws with landmark decisions in states like Texas and California, but states replaced them with "stop and identify" or "stop and frisk" laws that in his view still violate constitutional rights, said Fagan.

Fuzzy laws, uninformed cops and bad arrests of this ilk are common coast-to-coast, said Komisaruk, who has studied and written about New York and California laws. She said five versions of "stop and identify laws" exist in a variety of states, but citizens are generally clueless to know which type of state they live in.

A list in Wikipedia supposedly identifying the states according to these laws isn't accurate, she said. To properly identify keep track would take hours of a law clerk's time, tracing and verifying the disparate state court decisions, she said.

Posted April 25, 2010 By Christine Clarridge

Federal air marshal charged with raping woman at SeaTac hotel

A 30-year-old federal air marshal is being held in jail on $250,000 bail on a charge he raped an escort at gunpoint in a SeaTac hotel while wearing his badge.

A federal air marshal is being held in jail on $250,000 bail on a charge he raped an escort at gunpoint in a SeaTac hotel while wearing his badge.

According to documents charging Lecheton "Omar" Settles, 30, of Herndon, Va., with first-degree rape, he threatened to use his position as a law-enforcement officer and his government-issued firearm to commit the rape.

Police and prosecutors say that Settles, who was in town for official business, called an escort service on Friday from his room at the Marriott.

When a female escort arrived, Settles was dressed, court documents say. The woman agreed to dance in lingerie for $180, according to charging documents.

When she emerged from the bathroom, however, Settles was naked. He wore his badge around his neck and was holding a handgun, police and prosecutors said.

According to charging documents, Settles told the woman he was a U.S. marshal and that she had to do what he told her.

Settles is not a member of the U.S. Marshals Service, the documents state, but is a federal air marshal employed by the Transportation Security Administration, which provides security for airports and airlines.

Court documents say that Settles placed the handgun on the bed while he raped the woman and then demanded that she return the money he'd already paid her.

Court documents say Settles also placed the woman in handcuffs and pretended to call his supervisor after the rape.

The woman called police at the urging of a friend, court documents say.

According to court documents, Settles first denied having sexual contact with the woman but changed his story after he was told that she had accurately described him.

Settles, who was a probationary employee of the TSA, has been terminated, according to TSA spokesman Dwayne Baird.

He is scheduled to be arraigned on April 28.

Posted February 25, 2010 By Dennis Pelham

Another lawsuit targets county jail

Another lawsuit alleging a Lenawee County Jail inmate was denied adequate medical care was filed Thursday in United States District Court. The suit by Douglas Strech of Sand Creek asks the court to declare the jail "unfit for all inmates."

Strech claims in the suit that he was hospitalized in February 2007 after being denied medication and emergency care for a heart condition. He was jailed for failing to pay child support.

Last week, a lawsuit was filed claiming jail staff were negligent and caused the death of Gary Moorehead hours after he was booked in January 2009. There is also a pending lawsuit over the 2007 death of inmate Brenda Sue Smith. And Daniel Pederson of Detroit filed suit last fall, claiming he was injured when an abdominal abscess went undiagnosed by staff of the jail's private health care contractor for nearly a month before he was taken to a hospital emergency room and underwent surgery in December 2007.

Sheriff Jack Welsh declined to comment Friday on the Strech complaint until he has a chance to review it.

In a statement issued Monday, Welsh said the suit brought by Moorehead's family was without merit. He also denied allegations of a policy of neglecting jail inmates' health needs.

Strech stated in his suit that he had a pacemaker and defibrillator implanted during emer­gency surgery on Jan. 24, 2007. When he was incarcerated on Feb. 11, 2007, he brought his medications and names of the doctors treating him. The suit claims he was denied his medication and care when he began experiencing heart problems early the next morning that caused his defibulator to begin shocking his heart.

He claimed in the suit that he pleaded for emergency medical help that was not provided for several hours. He was then hospitalized for five days, he said, and suffered permanent injuries.

The lawsuit written by Southfield attorney Daniel Romano claims violations of constitutional rights, including due process and protection from cruel and unusual punishment. The suit requests punitive damages.

"It is clear that there is plainly present invidious discrimination against persons requiring prompt exact medical attention," Romano stated in the suit. In addition to awarding damages, Romano asked in the suit that the court "declare that the Lenawee County Jail is unfit for all inmates and has repeatedly demonstrated its inability to provide even minimal constitutional protection for the care and custody of inmates requiring medical assistance."

Posted February 14, 2010 By The Times-Picayune

New Orleans police officer under investigation in shooting in days after Katrina

algiers-burned-car.JPGHenry Glover's burned remains were found weeks after Hurricane Katrina inside an abandoned, nearly incinerated car on the Algiers levee.

A former New Orleans police officer is under investigation for shooting Henry Glover outside an Algiers strip mall four days after Hurricane Katrina, the first act in a bizarre chain of events that has led to a massive federal probe into the city's Police Department.

Glover's burnt remains were found weeks after the August 2005 storm inside an abandoned, nearly incinerated car on the Algiers levee.

Over the past year, the U.S. Department of Justice has interviewed scores of officers in an effort to determine how the 31-year-old Glover died, as well as whether officers may have tried to cover up his death.

david-warren.JPGFormer N.O. police officer David Warren is under investigation on the shooting.

William Tanner, an Algiers resident, has described his effort to get medical treatment from police for Glover's gunshot wound. Tanner has alleged that a group of officers from the SWAT unit detained and beat him and two other men, refused medical care for Glover, and eventually drove off in Tanner's car, with Glover's body inside.

But it was never known who had shot Glover. Now, several sources and a defense attorney confirm that federal investigators believe that then-NOPD officer David Warren shot Glover.

It's unclear if Warren's bullet killed Glover. It's also unclear whether another group of officers under investigation for setting the car on fire -- including two leaders of the NOPD's high-profile SWAT unit, Capt. Jeff Winn and Lt. Dwayne Scheuermann -- knew that Glover had been possibly shot by a fellow cop.

What is clear is that the shooting was the first in a string of questionable actions by NOPD officers now at the center of a sprawling probe.

Rookie reassigned in days after Katrina

Warren, 47, was a rookie on the force assigned to the 7th District in eastern New Orleans when the storm struck. He was unable to get to his post and was directed to the 4th District in Algiers, according to his attorney, Joseph Albe.

On Friday, Sept. 2, 2005 -- four days into the flood -- Warren and his patrol partner encountered two men behind a Chuck E. Cheese's restaurant near the intersection of Seine Drive and Texas Drive, Albe said.

Glover was at that location that afternoon with a friend when he was shot, according to family members.

Warren, in uniform, saw two men ge out of a truck and "charge" toward a business, Albe said. Warren believed they were going to loot the business.

"He yelled stop, halt, whatever," Albe said. "They didn't."

Warren, an expert marksman, pulled the trigger on his rifle. A shot rang out.

"After he fired, the guys turned around and ran off," Albe said.

Warren, who Albe said doesn't know exactly where the bullet landed, then called ranking officers and reported the shooting.

"He did exactly what he was supposed to have done," Albe said.

Though the location, the date, time and circumstances square with civilian accounts, Albe maintains there is no evidence that shows Warren shot Glover.

"Did David Warren shoot his gun? Yes. He shot one shot. Do we know whether it was Henry Glover? No ... We may never know."

Warren never wrote a report on the shooting incident.

"He was told not to" by ranking officers, Albe said. "Plus, an officer involved in a shooting doesn't write his own report."

A report written more than a week after the incident classified the shooting as a "miscellaneous incident," a designation given to minor matters that typically receive no follow-up, the attorney said.

Albe and other attorneys representing the officers under investigation have said the chaotic circumstances after Katrina need to be taken into consideration when judging officers' actions.

"It wasn't 'protect and serve,'" Albe said Friday. "It was protect themselves. It was a question of survival."

An unconventional officer

Warren is no longer with the NOPD. He joined the department as a recruit in December 2003 and was sworn in as an officer in May 2004. He left the force in 2008, according to civil service records.

He was an unconventional rookie: He joined the force mid-career and holds several degrees, including a master's of business administration degree from the University of Wisconsin, according to his personnel file.

His resume also states he has worked in the armed services, and participated in "use of force and threat assessment" training at the Lethal Force Institute Inc. At the NOPD's graduation for his recruit class, Warren was honored with a precision shooting award for having the highest cumulative score during firearms training.

Civilian witnesses have already given their version of the events of Sept 2, 2005, to federal agents.

henry-glover.jpgPhoto courtesy of Rolanda ShortHenry Glover with his daughter, Nehemiah Short, sometime before September 2005.

Glover's fiancee, Rolanda Short, said last fall that Glover had gone out that morning to scavenge for supplies. After Katrina, with no stores open, he had been in charge of getting food, water and charcoal for the couple's extended family, several of whom lived near their apartment on Garden Oaks Drive, she said.

Short heard someone in the street shout out that Glover, who was known as "Ace," had been shot. Short said the man on the street indicated a police officer -- maybe a state trooper -- had shot the father of her young daughter.

Hearing the news, Short ran out into the street and saw Glover lying face down on the pavement with blood pouring from his chest. Short said as she held Glover's hand, a car pulled up and two police officers got out. They ordered Short to back away from her fiance, but she refused. Eventually they left, said Short, who was interviewed by FBI agents last year.

At that point, a potential savior appeared, Short recalled. Tanner, a maintenance man on a quest for gasoline for his car, stopped his white Chevrolet Malibu at the behest of Glover's brother, Edward King. Though he didn't know Glover, Tanner agreed to try to help.

A search for help

Tanner decided that driving several miles to West Jefferson Medical Center, the original plan, was a bad idea. With Glover in the car's back seat, and the injured man's brother and another man in the car, Tanner drove to a nearby school where the NOPD's SWAT unit had set up camp during the storm.

Instead of helping them, Tanner alleges that SWAT team members at Paul B. Habans Elementary School handcuffed the three uninjured men, interrogating them about what they were doing.

The officers jumped to the conclusion that the men were looters, and beat them, with officers kicking Tanner in the ribs, and one officer hitting him in the head with the butt of a gun, Tanner said.

Officers did not tend to Glover, who lay wounded -- or possibly dead -- in the back seat of the car, Tanner said.

At one point, an officer in a tactical uniform took Tanner's key chain, removed the key to his car and headed toward his Malibu, with flares sticking out of the front pocket of his cargo pants, Tanner recalled. The officer took off in the car, following other officers who were in a white truck, he said. Glover was still in the back seat of the car.

Eventually, Tanner and the other men were released. They fled the city.

Scorched bone fragments recovered

Soldiers from the Army's 82nd Airborne recovered Glover's remains, mostly scorched bone fragments with "minute fragments of metal," from inside Tanner's charred car, which had been left beside the levee near Patterson Drive and Gen. Collins Avenue. The site was blocks away from the NOPD's 4th District station and a U.S. Border Patrol office, about a mile and a half away from the elementary school where SWAT encamped.

Coroner Frank Minyard said DNA from family members helped confirm Glover's identity. The autopsy shows Minyard did not classify the death as a homicide or flag it for police investigation.

Minyard's inaction in classifying the death a homicide is one reason police didn't begin an investigation, Albe said.

Six days after Glover's shooting, a pair of volunteer first responders from the Pittsburgh area, armed with a video camera, stumbled upon the vehicle. The two men videotaped what they found inside: a skull with two holes in it, according to a Pittsburgh television news report.

The skull went missing sometime between the pair's discovery and when the 82nd Airborne recovered the remains. No skull is mentioned in Glover's autopsy, which consisted of an examination of five biohazard bags containing bones and clumps of flesh.

Tanner learned about the location of his vehicle months after the storm from an agent with the federal Immigration Customs and Enforcement agency. The car remained on the levee through early February 2009. A neighbor said it was towed away by an NOPD truck a month later.

Although Tanner made several appeals to the NOPD in the time since Katrina to find out what happened to his car, he never got anywhere.

Two veteran cops also under investigation

Two veteran officers, both highly decorated, are under investigation by federal authorities for playing possible roles in the disposal of Glover's body. Winn and Scheuermann of the SWAT team are two targets of the investigation, Eric Hessler, an attorney representing Winn, has previously said.

Winn, a Marine Corps veteran who served in Iraq, and Scheuermann are widely respected in the department. They have worked in the some of the NOPD's most proactive and dangerous units, volunteering for harrowing assignments time and again. The SWAT team responded to numerous reports of violence in the city immediately after the storm.

Hessler has defended his client in interviews, saying Winn and the officers he commanded were the ones who stepped up during the chaos after Katrina.

"Jeff Winn addressed everything properly by the guidelines the NOPD was working under during Katrina," Hessler said Friday. "By all accounts, he did a great job."

Tanner's account of what happened to Glover first appeared in a 2008 article published in The Nation magazine and on the Web site of ProPublica, an investigative newsroom. Despite repeated inquiries by Tanner about what happened to his car, the New Orleans Police Department had not previously opened an investigation into Glover's death or the incineration of his corpse.

The story prompted a federal inquiry. Since then, dozens of officers, including the current and former superintendents, as well as other top brass, have appeared before a federal grand jury. The U.S. Department of Justice, working with the local FBI office and the U.S. attorney's office, has issued countless subpoenas to the NOPD, and interviewed several officers.

The federal investigation into Glover's death is one of several active probes into the NOPD. A grand jury examining the well-publicized Danziger Bridge shooting -- in which two men were killed by police and four others were shot -- commenced last spring. The FBI also has an open investigation into the fatal police shooting death of Adolph Grimes III, 22, who was killed in an encounter with officers on New Year's Day 2009.

Posted February 14, 2010 By JACQUES BILLEAUD

Judge finds grounds to sanction Arizona sheriff

A federal judge has found grounds for sanctioning an Arizona sheriff's office for its acknowledged destruction of records in a lawsuit that accuses deputies of racially profiling countless Hispanics in immigration patrols.

U.S. District Judge Murray Snow held off on imposing the sanctions against the office of Maricopa County Sheriff Joe Arpaio in the Friday ruling, but indicted he would do so at a later date once related issues were ironed out.

Since early 2008, Arpaio has run 13 immigration and crimes sweeps consisting of deputies and posse volunteers who flood an area of a city "in some cases heavily Latino areas" to seek out traffic violators and arrest other offenders.

The handful of Latinos who filed the lawsuit against Arpaio's office alleged that officers based some traffic stops on the race of Hispanics who were in vehicles, had no probable cause to pull them over and made the stops so they could inquire about their immigration status.

Arpaio is known for tough jail policies, including housing inmates in canvas tents, and pushing the bounds for how local law enforcement agencies can confront illegal immigration.

The U.S. Justice Department said it's investigating his office for alleged discrimination and for unconstitutional searches and seizures, but won't provide any details of its examination. The sheriff believes the inquiry is focused on his immigration efforts.

Arpaio has repeatedly denied the racial profiling allegations, saying people pulled over in the sweeps were approached because deputies had probable cause to believe they had committed crimes. It was only afterward that deputies found many of them were illegal immigrants, he has said.

Some sheriff's officials have acknowledged deleting their e-mails about the patrols and throwing away and shredding officers' records of traffic stops made during the sweeps.

Snow said the sheriff's office was negligent for not holding onto the documents and that the failure to preserve them is enough to justify sanctions. The judge asked plaintiff's attorneys to suggest unspecified "adverse inferences" that could be drawn from the destruction of officers' records of traffic stops made during the sweeps.

Peter Kozinets, one of those attorneys, said Saturday that the document destruction deprived his clients of records that would have shown deputies were selective in whom they approached during the sweeps.

The sheriff's office said the destruction was an honest error that sprung from a top official not telling others in his office to preserve the documents.

The office also said the traffic-stop records were thrown away after supervisors tabulated statistics from them and that thousands of other documents have been handed over.

"We thought the ruling was extremely fair and we are pleased to cooperate," said Dave Hendershott, chief deputy of the sheriff's office. "It clearly shows that the judge understood that it was an unintentional oversight. We are very pleased with the ruling."

Snow also said that plaintiff's attorneys can again depose Arpaio to question him about his own 800-page immigration file, which was covered by a documents request but wasn't handed over before his first deposition in mid-December.

Posted February 12, 2010 By Shannon P. Duffy

$10.5 Million Accord Reached in Teen's Death at Juvenile Detention Center

A $10.5 million settlement was reached in a wrongful death suit brought by the mother of a Philadelphia teenager who died in a Tennessee juvenile detention center after an incident in which two guards allegedly used an improper choke hold to restrain him.

Plaintiffs attorneys Thomas R. Kline, David K. Inscho and Mark Alan Hoffman of Kline & Specter filed the suit on behalf of Paulette Dolby, the administratrix of the estate of Omega "Manny" Leach.

According to court papers, Leach's death in June 2007 at age 17 was the second at the Chad Youth Enhancement Center in Ashland, Tenn., a facility that had come under scrutiny by officials in several states for a series of incidents involving the alleged use of harsh treatment.

"Tragically, the death of Manny Leach was not only preventable, it was predictable," the plaintiffs lawyers wrote in court papers.

"Chad had an egregious history of excessively and injuriously restraining its residents, failing to comply with state reporting requirements for injured residents, and improperly screening, training and disciplining its employees," they wrote.

Leach had been recommended for a placement in Chad after a court-ordered psychiatric evaluation. He had been adjudicated delinquent after stealing a car and was later found to be in violation of his probation after testing positive for marijuana use, according to court papers. Since the age of 11, Leach had been in and out of mental hospitals and treatment centers.

By the time he was sent to Chad, the states of New York and Tennessee had stopped using the facility, according to court papers.

The incident that led to Leach's death involved Chad employees -- Randall Rae and Milton Francis -- who, according to the plaintiffs, never should have been hired, were never properly trained, and should have been disciplined or fired for incidents before Leach arrived.

In court papers, the plaintiffs lawyers described the incident as a "brutal attack" in which Rae threw Leach to the ground and began choking him in clear view of a surveillance camera.

Rae was holding Leach down on the ground with his arms pinned behind his back when Francis arrived and took over the task of restraining him, according to court papers. A nurse who arrived on the scene noticed that Leach was not breathing and had no pulse.

Although a medical examiner concluded that Leach's death the following day was a homicide, a Tennessee grand jury later declined to bring any charges against Rae or Francis.

In an interview, Kline said the case was a difficult one in terms of proving damages, but that he was prepared to offer evidence that Leach was intent on rehabilitating himself and finding a career.

Kline said he also would have argued to the jury that Leach had suffered a horrible death by asphyxiation.

In settlement talks, Kline said, one of the most powerful pieces of evidence was a still photo extracted from the videotape that clearly showed Rae choking Leach.

Kline said U.S. District Judge Mitchell Goldberg was "instrumental" in getting the parties to settle.

"This case could not and would not have been settled without his intervention," Kline said.

Named as defendants in the suit were the city of Philadelphia, Chad Youth Enhancement Services Inc., and its parent company, Universal Health Services Inc.

But as part of the settlement, all claims against the city and UHS were dropped, and Chad alone paid the entire $10.5 million.

Chad was represented by Daniel J. Sherry, Kate S. McGrath and Joseph J. Santarone Jr. of Marshall Dennehey Warner Coleman & Goggin.

In an interview, Sherry said the settlement includes no admission of liability by Chad. The case was contested at every step, Sherry said, but settled because "everyone recognized that this was a tragedy."

Posted January 22, 2010 By RAMIT PLUSHNICK-MASTI

Teen violist alleges Pittsburgh police brutality

Jordan Miles, an 18-year-old high school student, speaks in his kitchen about his hopes to go to college to study crime scene investigation while sitting in the family kitchen in Pittsburgh, Friday, Jan. 22, 2010. Miles was charged Jan. 13 with assault and resisting arrest and his family says he was hospitalized after being hit with a stun gun and suffering head lacerations. He claims that he resisted because he thought the men were trying to abduct him and didn't identify themselves as police.

The photos taken by Jordan Miles' mother show his face covered with raw, red bruises, his cheek and lip swollen, his right eye swollen shut. A bald spot mars the long black dreadlocks where the 18-year-old violist says police tore them from his head.

Now, 10 days after plainclothes officers stopped him on a street and arrested him after a struggle that they say revealed a soda bottle under his coat, not the gun they suspected, his right eye is still slightly swollen and bloodshot. His head is shaved. The three white officers who arrested him have been reassigned. And his mother says she is considering a lawsuit.

"I feel that my son was racially profiled," Terez Miles said. "It's a rough neighborhood; it was after dark. ... They assumed he was up to no good because he's black. My son, he knows nothing about the streets at all. He's had a very sheltered life, he's very quiet, he doesn't know police officers sit in cars and stalk people like that."

A judge continued the case until Feb. 18 after the officers failed to appear at a hearing Thursday, Miles' attorney, Kerrington Lewis, said.

The police department is saying little as it investigates and isn't releasing the officers' names. Pittsburgh Mayor Luke Ravenstahl said that the city is investigating whether the officers' actions were justified and that if they weren't, "they will be held accountable for those actions."

"The incident was very troubling to me, and we're taking it very seriously," Ravenstahl told reporters. "It seems as if there was a tremendous amount of force used."

Miles' family describes him as a studious teenager who plays the viola for a jazz band and the orchestra at Pittsburgh's prestigious Creative and Performing Arts High School.

The confrontation began around 11 p.m. Jan. 12, when the teenager walked out of his mother's home and headed to his grandmother's, where he spends most nights. His mother complimented him on the new jacket he had gotten for his birthday.

"It looks handsome," she said, smiling as he walked down the front steps.

As Miles walked up the block, he noticed three men sitting in a white car, "but I thought nothing of it," he said.

The criminal complaint says Miles was standing against a building "as if he was trying to avoid being seen." But he says he was walking when the men jumped out of the car.

"Where's the money?" one shouted, according to Miles. "Where's the gun? Where's the drugs?" the other two said. "It was intimidating; I thought I was going to be robbed," Miles said.

That's when he says he took off back to his mother's house but slipped on the icy sidewalk. Before he could pull himself up, Miles said, the men were at his back.

"That's when they started beating me, punching, kicking me, choking me," he said.

Not until 15 minutes later, when uniformed officers drove up in a van and Miles overheard their conversation, did he realize he had been arrested, he said. Initially, when the handcuffs were clamped around his wrists, he thought he was being abducted, he said.

The police believed Miles, who appeared to have something heavy in his pocket, was carrying a gun, according to the affidavit. The police say they used a stun gun on the teenager.

According to the affidavit, the object in Miles' pocket turned out to be a bottle of Mountain Dew. But Miles says he didn't have anything in his pocket and rarely drinks Mountain Dew.

"The story just doesn't make sense when you read the affidavit," said Lewis, the teen's attorney.

Miles said the family is considering suing the police department and the officers.

"I knew that he hadn't done anything wrong," his mother said. "That's just not an option for Jordan."

Pittsburgh police have reassigned the three officers and put them back in uniform while the city investigates, spokeswoman Diane Richard said. She declined to say whether racial allegations are part of the probe.

Meanwhile, Jordan Miles says he awaits a physician's approval to return to school and is suffering from nightmares and flashbacks.

Once he's done with school, he says, he hopes to attend Penn State University ? and study crime scene investigation.

Posted JANUARY 18, 2010 By Agam Shah

Groups Seek to Challenge US Gov't on Seized Laptops

The policy of random laptop searches and seizures by U.S. government agents at border crossings is under attack again, with a pair of civil rights groups seeking potential plaintiffs for a lawsuit that challenges the practice.

The American Civil Liberties Union is working with the National Association of Criminal Defense Lawyers to find lawyers whose laptops or other electronic devices were searched at U.S. points of entry and exit. The groups argue that the practice of suspicionless laptop searchesviolates fundamental rights of freedom of speech and protection against unreasonable seizures and searches.

The groups have the support of Electronic Frontier Foundation, which has argued in court that laptop searches are invasive because devices like laptops contain personal data, which people should be able to keep private. EFF has also argued that some searches have been conducted without suspicion.

"This lawsuit will not seek monetary damages for individuals who have been searched; instead, it will focus exclusively on fixing the unconstitutional policy," wrote Jennifer Granick, civil liberties director and lawyer with the Electronic Frontier Foundation, in a blog entry on Wednesday.

NACDL believes the policy "erodes fundamental privacy rights generally," the group said on its Web site. It "has a particularly chilling impact on lawyers who travel abroad with legal documents that are subject to the attorney-client or work-product privileges," NACDL wrote.

Last year, a document surfaced on the U.S. Department of Homeland Security's Web site that authorized U.S. agents to seize and retain laptops indefinitely. Government agents belonging to the U.S. Customs and Border Protection, which is a part of DHS, were also authorized to seize electronic devices including portable media players and cell phones and inspect documents in them.

The DHS has defended the policy of searching electronic devices, stating that its ability to "inspect what is coming into the United States is central to keeping dangerous people and things from entering the country and harming the American people," according to the agency's Web site.

The ACLU is already challenging DHS in court over the issue. In August last year, the group filed a suit against the DHS after it was denied access to documents to learn about the policy. The EFF and the Asian Law Caucus (ALC) also filed a case last year against the DHS after they were denied access to records on questioning and searches of travelers at U.S. borders.

Posted JANUARY 14, 2010 by Daniel Rowinski

Police Fight Cellphone Recordings

Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager's mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.

Within minutes, Glik said, he was in handcuffs.

"One of the officers asked me whether my phone had audio recording capabilities," Glik, 33, said recently of the incident, which took place in October 2007. Glik acknowledged that it did, and then, he said, "my phone was seized, and I was arrested."

The charge? Illegal electronic surveillance.

Jon Surmacz, 34, experienced a similar situation. Thinking that Boston police officers were unnecessarily rough while breaking up a holiday party in Brighton he was attending in December 2008, he took out his cellphone and began recording.

Police confronted Surmacz, a webmaster at Boston University. He was arrested and, like Glik, charged with illegal surveillance.

There are no hard statistics for video recording arrests. But the experiences of Surmacz and Glik highlight what civil libertarians call a troubling misuse of the state's wiretapping law to stifle the kind of street-level oversight that cellphone and video technology make possible.

"The police apparently do not want witnesses to what they do in public," said Sarah Wunsch, a staff attorney with the American Civil Liberties Union of Massachusetts, who helped to get the criminal charges against Surmacz dismissed.

Boston police spokeswoman Elaine Driscoll rejected the notion that police are abusing the law to block citizen oversight, saying the department trains officers about the wiretap law. "If an individual is inappropriately interfering with an arrest that could cause harm to an officer or another individual, an officer's primary responsibility is to ensure the safety of the situation," she said.

In 1968, Massachusetts became a "two-party" consent state, one of 12 currently in the country. Two-party consent means that all parties to a conversation must agree to be recorded on a telephone or other audio device; otherwise, the recording of conversation is illegal. The law, intended to protect the privacy rights of individuals, appears to have been triggered by a series of high-profile cases involving private detectives who were recording people without their consent.

In arresting people such as Glik and Surmacz, police are saying that they have not consented to being recorded, that their privacy rights have therefore been violated, and that the citizen action was criminal.

"The statute has been misconstrued by Boston police," said June Jensen, the lawyer who represented Glik and succeeded in getting his charges dismissed. The law, she said, does not prohibit public recording of anyone. "You could go to the Boston Common and snap pictures and record if you want; you can do that."

Ever since the police beating of Rodney King in Los Angeles in 1991 was videotaped, and with the advent of media-sharing websites like Facebook and YouTube, the practice of openly recording police activity has become commonplace. But in Massachusetts and other states, the arrests of street videographers, whether they use cellphones or other video technology, offers a dramatic illustration of the collision between new technology and policing practices.

"Police are not used to ceding power, and these tools are forcing them to cede power," said David Ardia, director of the Citizen Media Law Project at Harvard's Berkman Center for Internet and Society.

Ardia said the proliferation of cellphone and other technology has equipped people to record actions in public. "As a society, we should be asking ourselves whether we want to make that into a criminal activity," he said.

In Pennsylvania, another two-party state, individuals using cellphones to record police activities have also ended up in police custody.

But one Pennsylvania jurisdiction has reaffirmed individuals' right to videotape in public. Police in Spring City and East Vincent Township agreed to adopt a written policy confirming the legality of videotaping police while on duty. The policy was hammered out as part of a settlement between authorities and ACLU attorneys representing a Spring City man who had been arrested several times last year for following police and taping them.

In Massachusetts, Wunsch said Attorney General Martha Coakley and police chiefs should be informing officers not to abuse the law by charging civilians with illegally recording them in public.

The cases are the courts' concern, said Coakley spokesman Harry Pierre. "At this time, this office has not issued any advisory or opinion on this issue."

Massachusetts has seen several cases in which civilians were charged criminally with violating the state's electronic surveillance law for recording police, including a case that was reviewed by the Supreme Judicial Court.

Michael Hyde, a 31-year-old musician, began secretly recording police after he was stopped in Abington in late 1998 and the encounter turned testy. He then used the recording as the basis for a harassment complaint. The police, in turn, charged Hyde with illegal wiretapping. Focusing on the secret nature of the recording, the SJC upheld the conviction in 2001.

"Secret tape recording by private individuals has been unequivocally banned, and, unless and until the Legislature changes the statute, what was done here cannot be done lawfully," the SJC ruled in a 4-to-2 decision.

In a sharply worded dissent, Chief Justice Margaret Marshall criticized the majority view of a law that, in effect, punished citizen watchdogs and allowed police officers to conceal possible misconduct behind a "cloak of privacy."

"Citizens have a particularly important role to play when the official conduct at issue is that of the police," Marshall wrote. "Their role cannot be performed if citizens must fear criminal reprisals when they seek to hold government officials responsible by recording, secretly recording on occasion, an interaction between a citizen and a police officer.''

Since that ruling, the outcome of Massachusetts criminal cases involving the recording of police by citizens has turned mainly on this question of secret vs. public recording.

Jeffrey Manzelli, 46, a Cambridge sound engineer, was convicted of illegal wiretapping and disorderly conduct for recording MBTA police at an antiwar rally on Boston Common in 2002. Though he said he had openly recorded the officer, his conviction was upheld in 2007 on the grounds that he had made the recording using a microphone hidden in the sleeve of his jacket.

Peter Lowney, 39, a political activist from Newton, was convicted of illegal wiretapping in 2007 after Boston University police accused him of hiding a camera in his coat during a protest on Commonwealth Avenue.

Charges of illegal wiretapping against documentary filmmaker and citizen journalist Emily Peyton were not prosecuted, however, because she had openly videotaped police arresting an antiwar protester in December 2007 at a Greenfield grocery store plaza, first from the parking lot and then from her car. Likewise with Simon Glik and Jon Surmacz; their cases were eventually dismissed, a key factor being the open way they had used their cellphones.

Surmacz said he never thought that using his cellphone to record police in public might be a crime. "One of the reasons I got my phone out . . . was from going to YouTube where there are dozens of videos of things like this," said Surmacz, a webmaster at BU who is also a part-time producer at Boston.com.

It took five months for Surmacz, with the ACLU, to get the charges of illegal wiretapping and disorderly conduct dismissed. Surmacz said he would do it again.

"Because I didn't do anything wrong," he said. "Had I recorded an officer saving someone's life, I almost guarantee you that they wouldn't have come up to me and say, ?Hey, you just recorded me saving that person's life. You're under arrest.'"

Posted JANUARY 4, 2010 By MATT APUZZO

Judge Weighs Misconduct Finding in Blackwater Case

Prosecutors who mishandled the investigation into a deadly 2007 Blackwater Worldwide shooting face a possible misconduct citation from a judge who says they withheld evidence and violated the guards' constitutional rights.

U.S. District Judge Ricardo Urbina admonished the Justice Department last week for its "reckless" handling of the investigation into a shooting that left 17 Iraqis dead. He threw out manslaughter and weapons charges against five security guards and, in a footnote, said he was also considering whether the repeated government missteps amounted to misconduct.

Such a ruling would be an embarrassing cap to a politically sensitive investigation and a black eye to a department that is still dealing with the fallout from last year's botched corruption case against former Sen. Ted Stevens. In that case, a judge wiped away the senator's conviction and appointed a lawyer to investigate prosecutors for withholding evidence from defense attorneys.

If Urbina rules the Blackwater prosecutors committed misconduct, it would touch off an internal Justice Department investigation and could lead to sanctions against the government or the individual prosecutors.

Blackwater guards were hired to protect diplomats in Iraq. The shooting unfolded in a crowded intersection, where Blackwater said its guards were ambushed by Iraqi insurgents. Prosecutors said the heavily armored Blackwater convoy used machine guns and grenades to unleash a wild, unprovoked assault on innocent civilians.

The Blackwater case fell apart because prosecutors built the investigation around State Department interviews the guards gave immediately after the shooting. Under an agreement commonly made following police shootings, the interviews were to be used only for the State Department investigation, not for criminal prosecution.

Urbina also cited prosecutors for withholding evidence from the grand jury. For instance, after a key witness told prosecutors he never saw Blackwater guard Donald Ball open fire, prosecutors blacked out that statement before presenting it to the grand jury. Grand jurors have the final say on whether to charge people.

Prosecutors also withheld the fact that four other Blackwater guards said they were attacked within seconds of entering the intersection. A prosecutor told the judge he withheld that evidence because he believed the witnesses were hostile to the government, according to the court ruling.

Ball's attorney, Steven McCool, asked for the misconduct ruling but would not comment Monday because the request remains sealed. Justice Department spokesman Dean Boyd had no comment.

The five guards are Ball, a former Marine from West Valley City, Utah; Dustin Heard, a former Marine from Knoxville, Tenn.; Evan Liberty, a former Marine from Rochester, N.H.; Nick Slatten, a former Army sergeant from Sparta, Tenn.; and Paul Slough, an Army veteran from Keller, Texas.

Posted JANUARY 4, 2010 By The Wall Street Journal

The Real Blackwater Scandal

No, not as the left would have it, that Blackwater still exists. The scandal is that the Justice Department's case against five former security guards for the military contractor unraveled late last week in what appears to be another instance of gross prosecutorial misconduct, as abusive Justice lawyers went after an unsympathetic political target.

The indictments-which were thrown out by D.C. District Judge Ricardo Urbina in a derisive and detailed 90-page opinion-stemmed from a 2007 firefight in Baghdad's Nisour Square that left 14 Iraqis dead and others wounded. The government contends that five Blackwater guards, who were providing tactical support for the State Department after an IED exploded in the vicinity of a meeting with Iraqi officials, went on an unprovoked killing spree against unarmed civilians. The guards maintain that they came under attack by insurgents and were responding in self-defense to a mortal threat.

Judge Urbina dismissed the charges because prosecutors misused sworn statements the guards were compelled to make to investigators after the shooting, under the threat of job loss. This was routine practice under military contracting rules, though the statements could not be used in criminal prosecutions. Promptly after the Nisour incident these statements were also leaked to the media, which ran with the narrative of modern-day Hessians gone berserk.

"In their zeal to bring charges against the defendants in this case," Judge Urbina ruled, prosecutors had violated Fifth Amendment protections against self-incrimination by using these compelled statements to formulate their case and ultimately obtain indictments against the guards. The judge calls it "the government's reckless violation of the defendants' constitutional rights."

Because of prior contact with the compelled statements, the Justice Department's entire criminal division had recused itself from the case, which was handed over to national-security prosecutors and later to Assistant U.S. Attorney for the District of Columbia Kenneth Kohl. The veteran Justice public-integrity lawyer Raymond Hulser was eventually assigned to lead a "taint team" to rebuild the case without using the off-limits statements, and he repeatedly warned the trial team that their evidence was "thoroughly tainted."

"By all accounts these prophylactic measures fell well short of expectations," Judge Urbina notes with some understatement. In "direct contravention of the clear directives" of Mr. Hulser, the statements were used to obtain a search warrant against Blackwater, figured into plea discussions, and exposed in testimony to the grand jury, forcing Justice to withdraw the case and present it to a new panel.

In the second round that featured redacted testimony from the first grand jury, prosecutors also excised what Judge Urbina calls "substantial exculpatory evidence." The judge goes on to say that Justice's "inconsistent, extraordinary explanations" for its conduct "smack of post hoc rationalization and are simply implausible," and ultimately "lacking in credibility."

Certainly the shootings at Nisour are a tragedy that strained U.S. relations with the Iraqi government, though the details seem reminiscent of the 2005 incident at Haditha, which the Washington political class played as another My Lai massacre but in reality was the product of the complex, asymmetrical combat conditions in a war zone. The courts martial against all but one of the Marines at Haditha have been dismissed or collapsed.

In this case, too, one question is whether prosecutors felt they could get away with such abusive behavior because Blackwater was such a politically unpopular defendant. The firm had political ties to Republicans, and Democrats and their media allies had made Blackwater a whipping boy to further undermine public support for the Iraq war. (Blackwater is now renamed Xe Services and no longer contracting in Iraq.)

This marks the fourth recent example in which judges have tossed out cases citing Justice Department abuse involving easy political targets. In the last year it has become clear that the ethics conviction against former Alaska Senator Ted Stevens was likely a miscarriage of justice, with prosecutors covering up evidence and trying to keep a witness from testifying.

There's also the vendetta against two former executives at Broadcom in the forgotten political uproar over backdating stock options. That case was thrown out last month after a judge ruled that prosecutors had improperly pressured witnesses and leaked information to the press. Earlier this decade, a federal judge tossed out multiple tax evasion cases against former KPMG partners.

Something is rotten in the culture of Justice, leading ambitious government crusaders to think they can get away with flouting due process when the political winds are blowing hot. Congress and the press corps may be too politically implicated to police this prosecutorial malpractice, so it may be up to the judiciary to apply more stringent sanctions.

Posted December 11, 2009 By Staff, City News Service

Former Riverside police officer convicted of sex-related charges

A former Riverside police officer was convicted today of forcing a woman to perform a sex act on him so she could avoid being arrested.

A seven-man, five-woman jury, however, acquitted 39-year-old Robert A. Forman of sexually assaulting another woman and deadlocked on whether he had assaulted a third. The panel announced its findings after two and a half days of deliberations.

Forman, who was also convicted of a misdemeanor petty theft charge, faces up to eight years in prison when he is sentenced Jan. 11 by Riverside County Superior Court Judge John Molloy.

The defendant asked Molloy to permit him to remain out of custody, on $50,000 bail, until the sentencing hearing, but the judge was not inclined.

"The last thing on the planet that I want to do is take Mr. Forman into custody," Molloy told the defendant's attorney, Mark Johnson. "But these are very serious charges. Mr. Forman was in a position of trust.

"If it was anyone besides a police officer, I wouldn't be taking him into custody today. I wouldn't."

Forman broke down in tears and asked again if he could remain free until sentencing.

"Sir, the jury has spoken," Molloy replied.

Forman was handcuffed and allowed a few minutes to speak privately with his family before being led away.

"Our office wants people to know that we will speak for anyone, no matter who they are," said Deputy District Attorney Elan Zekster outside the courtroom, following the verdicts.

Johnson said he was "disappointed" by the jury's findings, but did not believe his client would face the maximum sentence.

"There are a lot of factors in mitigation," the attorney said, adding that because Forman has no prior criminal history, he could be eligible for probation.

The ex-cop was charged with two counts of forced oral copulation and one count each of felony sexual battery and petty theft for three alleged assaults between February and April 2008.

The 11-year law enforcement veteran, who was fired from the police force shortly after his arrest in October 2008, testified in his own defense, denying all the allegations against him.

He testified last week that he had consensual sex with a woman while he was in uniform but not on duty. However, the woman, identified as Kathryn, testified she performed oral sex on Forman because she felt that was the only way to avoid arrest.

Kathryn said the April 18, 2008, encounter occurred a few hours after Forman and other officers searched her residence in response to a domestic disturbance complaint. According to trial testimony, the officers discovered drug paraphernalia, including bags of methamphetamine and used syringes, as well as evidence of check fraud.

Kathryn testified that she feared being booked for violating her probation, but Forman assured her she would not be taken into custody "as long as you cooperate." She alleged that the defendant returned to her apartment after his shift and demanded sex.

The jury found him guilty of the offense.

A sometime-prostitute and drug user identified as Tessa testified that in February 2008 Forman gave her a ride to a bus station near Chicago and University avenues and, at the end of the encounter, told her he liked her, then thrust his hand down her pants and kissed her. The woman said she quickly got out of the car.

Forman testified that Tessa had wanted to report a rape but repeatedly drifted "off track" during their 30-minute conversation, failing to provide details about her alleged assailant. He said he gave her a ride to the bus station as a courtesy.

The jury hung 8-4 in favor of guilt, prompting Molloy to declare a mistrial. Zekster would not say whether the D.A.'s office intended to retry Forman on the sexual battery count. He was found guilty of petty theft for taking the victim's money.

Nadia, a prostitute and admitted cocaine addict, testified that in March 2008, Forman drove her to a secluded location and ordered her to "give me some head." She said she complied, believing she had no alternative.

According to Forman, his interaction with Nadia was limited to gathering information on drug suppliers, which the jury believed.

Posted DECEMBER 10, 2009 BY ANDREW WOLFSON

State police blamed in death

Agreeing to serve as a confidential informant for the Kentucky State Police after being charged with a crime in high school, 17-year-old Lebron Gaither of Lebanon, Ky., relied on detectives to protect him.

Instead, a state tribunal has found, the state police "sentenced him to death" by allowing a drug dealer to learn his identity and then using him in a drug buy in which he was kidnapped and killed.

Thirteen years after Gaither was found beaten, stabbed and shot, the Kentucky Board of Claims, in a ruling made public Thursday, has ordered state police to pay $168,730 in damages to his estate.

"I'm glad my grandson may be able to finally rest in peace," said Virginia Gaither, his grandmother, who raised him and is the administrator of his estate. "It's been 13 years of agony and wondering and waiting if there was ever going to be justice done."

The case was delayed for years by court appeals. But the board found this week that detectives violated clearly established rules and failed in their duty to protect Gaither, who was used for drug buys after he turned 18.

First, narcotics Detective Danny Burton paraded him through crowded courthouses in Marion and Taylor counties, full of criminal defendants, clearly compromising his identity, the board said in an 18-page opinion.

Next, the detectives allowed Gaither to testify before grand juries in both counties, even though confidential informants are never required to testify for fear their identity will become known, the board said.

In one case, he testified about an alleged drug purchase from Jason Derek Noel, and the next day - despite their knowledge he was in danger - Burton and Detective Tim Simpson set up another drug buy between Gaither and Noel at a grocery in Taylor County.

After the deal went awry, and Noel took off with Gaither in a car, Burton and Simpson didn't contact local police to ask for help finding the vehicle but instead tried to find it on their own, the board said, "to hide their mistakes."

Eventually, they sought assistance, but it was too late. Gaither's body was found on July 17, 1996, in Casey County, where Noel - later convicted of murder - had taken him.

Overruling a hearing officer who had recommended finding the state police blameless, the Board of Claims acknowledged that police must be granted wide discretion to do their jobs but added, "It is absolute, certain, imperative and clear to a member of law enforcement or a prosecutor that a confidential informant is not walked through a busy courthouse, required to testify in person, and then used again by law enforcement after he has been ?burned.'"

Once state police decided to use Gaither to collect evidence and had him testify, the board said, "they had a duty to proceed with reasonable care and not to essentially sentence him to death."

The board said Gaither - who stood 6 foot 3 and weighed over 300 pounds - was a "physically robust figure who could not be walked through a courthouse inconspicuously."

Louisville lawyer Dan Taylor, who represented Virginia Gaither, hailed the award, which he said should put "Kentucky State Police on notice that they need better discipline and training in the use of confidential informants. Their conduct in this case was egregious."

A state police spokesman, Lt. David Jude, declined to comment other than to say that the department is seeking permission to appeal to Franklin Circuit Court and that both Burton and Simpson have retired.

The board said Burton testified that he believed "he was personally responsible for Gaither's death" and that Simpson testified state police are responsible to their confidential informants "to the highest degree."

In its defense, the department argued that Gaither assumed the risk to his own safety when he agreed to become an informant, for which he was paid about $3,150.

The department also claimed Gaither caused his own death by violating one of the ground rules laid out for the buy - that he not get into Noel's vehicle.

Finally, state police tried to shift blame to a grand juror who disclosed Gaither's identify to Noel, and to Noel himself for killing the teen. (The grand juror was later convicted of violating grand jury secrecy laws and sentenced to 10 years in prison, Taylor said.)

But the Board of Claims rejected those arguments, in which the board tried to avoid any liability for Gaither's death. It said he was "just a kid who found himself in trouble in high school" and was too young and immature to understand the risks of being an informant. Gaither was charged with assaulting an assistant principal, according to Taylor.

If Gaither violated instructions by getting in the car, the board said, detectives did as well by not ending the bust as soon as it went awry. And it said neither the grand jury nor Noel would have known Gaither's identify if detectives hadn't erred in bringing him there to testify.

The board calculated damages to Gaither's estate, including lost wages, of $568,006. It apportioned 50 percent of the fault to Noel, 15 percent to the grand jury, 5 percent to Gaither and 30 percent to state police, making the department liable for $168,730.

The Board of Claims, which has five members, reviews claims filed by people who believe they or their property have been damaged through negligence of the state.

Gaither's claim was delayed by two appeals in which the Court of Appeals had to determine the board's jurisdiction in wrongful-death claims and the statute of limitations for filing them, Taylor said.

Reporter Andrew Wolfson can be reached at (502) 582-7189.

Posted December 11, 2009 By Ian Herbert

The Psychology and Power of False Confessions

On July 8, 1997, Bill Bosko returned to his home in Norfolk, Virginia, after a week at sea to find his wife murdered in their bedroom. A few hours later, Bosko's neighbor, Danial Williams was asked to answer questions at the police station. And after eight hours there, Williams confessed to the rape and murder of Michelle Moore-Bosko.

Five months later, because of inconsistent physical evidence, the Norfolk police became convinced that Williams did not act alone and turned their attention to Joseph Dick, Williams' roommate. Dick confessed as well. He later pled guilty, testified against two other co-defendants, named five more accomplices who were never tried, and publicly apologized to the victim's family. "I know I shouldn't have done it," Dick said just before the judge gave him a double life sentence. "I have got no idea what went through my mind that night - and my soul."

Dick now says that all of that is untrue, and he has a team of lawyers who believe him. In 2005, the Innocence Project filed a petition on behalf of Williams, Dick, and the other two members of the group called the "Norfolk Four." They petitioned Virginia Governor Tim Kaine for clemency on the basis of new physical evidence, and in August 2009, the outgoing governor issued conditional pardons, which set the men free but forced them to be on parole for the next 20 years. It was a decision that Kaine struggled with, and he granted conditional pardons because he said the men failed to fully prove their innocence. "They're asking for a whole series of confessions ? to all be discarded," Kaine said on a radio show in the fall of 2008. "That is a huge request."

We know that false confessions do happen on a fairly regular basis. Because of advances in DNA evidence, the Innocence Project has been able to exonerate more than 200 people who had been wrongly convicted, 49 of whom had confessed to the crime we now know they didn't commit. In a survey of 1,000 college students, four percent of those who had been interrogated by police said they gave a false confession.

But Why?

False confessions seem so illogical, especially for someone like Joseph Dick of the Norfolk Four, who got a double life sentence after confessing. Why do people confess to crimes they didn't commit? Some do it for the chance at fame (more than 200 people confessed to kidnapping Charles Lindbergh's baby), but many more do it for reasons that are far more puzzling to the average person. In the November 2004 issue of Psychological Science in the Public Interest, APS Fellow Saul Kassin looked at the body of research and described how the police are able to interrogate suspects until they confess to a crime they didn't commit.

Generally, it starts because people give up their Miranda rights. In fact, Richard A. Leo found that a majority of people give up the right to remain silent and the right to an attorney. In fact, according to self-report data, innocent suspects gave up their rights more often than guilty suspects (most told Leo either that this was because they felt that they didn't have anything to hide because they were innocent or that they thought it would make them look guilty).

Once a suspect starts talking, the police can use a variety of techniques to make the accused feel as though they are better off confessing than continuing to deny (these include promises of leniency and threats of harsher interrogation or sentences). If a suspect feels like a conviction is inevitable not matter what he or she says, confessing may seem like a good idea.

But, in some cases, the accused comes to believe that he or she actually did commit the crime. It's been shown repeatedly that memory is quite malleable and unreliable. Elizabeth Loftus has repeatedly shown that the human brain can create memories out of thin air with some prompting. In a famous series of experiments, Loftus, APS Past President, was able to help people create memories for events that never happened in their lives simply through prompting. She helped them "remember" being lost in a shopping mall when they were children, and the longer the experiment went on, the more details they "remembered." The longer police interrogate a suspect, emphatic about his guilt and peppering their interrogation with details of the crime, the more likely a suspect is to become convinced himself.

Joseph Dick claims that this is what happened to him. His confession, testimony, and apology to the family were not lies, he maintains, but rather the product of a false memory. "It didn't cross my mind that I was lying," he said. "I believed what I was saying was true."

'Corrupting the Other Evidence'

Despite the evidence that false confessions are a regular occurrence, most jurors struggle with the concept just like Kaine did with the Norfolk Four. Confessions are difficult to discount, even if they appear to be coerced. Years ago, Kassin noticed that cases with confessions have an unusually high conviction rate, and since then he has dedicated his life to studying why that happens and what can be done about it.

In a 1997 study, Kassin and colleague Katherine Neumann gave subjects case files with weak circumstantial evidence plus either a confession, an eyewitness account, a character witness, or no other evidence. Across the board, prospective jurors were more likely to vote guilty if a confession was included in the trial, even when they were told that the defendant was incoherent at the time of the confession and immediately recanted what he said.

Kassin and Neumann also did two simultaneous studies to further explore the power of confessions. In one, they had people watch a trial and turn a dial to rate the extent to which evidence convinced them the defendant was guilty or innocent. The other asked potential jurors after the trial which evidence was most powerful. In both the mid-trial and post-trial ratings, jurors saw the confession as the most incriminating. Other studies have shown that conviction rates rise even when jurors see confessions as coerced and even when they say that the confession played no role in their judgment. "I don't honestly think juries stand a chance in cases involving confessions," Kassin says. "They're bound to convict."

Kassin says he doesn't blame jurors. He travels around the country lecturing on the psychology of false confessions and he says "the most common reaction I get from a lay audience is, 'Well, I would never do that. I would never confess to something I didn't do.' And people apply that logic in the jury room. It's just that basic belief that false confessions don't occur." What's more, the evidence juries are given in conjunction with the false confessions is very damning, Kassin says. False confessions of guilt often include vivid details of how a crime was committed - and why. Confessions sometimes even come with an apology to the family. It's no wonder jurors have trouble discounting them.

What confessions rarely include is an explanation of why the person confessed. In most states, police are not required to videotape the interrogations, just the confessions. So juries don't get to see any potential police coercion and they don't get to see the police planting those vivid details in the minds of the suspects.

And that may be just the tip of the iceberg. Kassin believes that confessions can have a dramatic impact on trials even if they never make it into a courtroom. They can influence potential eyewitnesses, for example, and taint other kinds of evidence.

Kassin recently teamed up with psychologist Lisa Hasel to test the effect of confessions on eyewitnesses. They brought subjects in for what was supposed to be a study about persuasion techniques. The experimenter briefly left the room and, during that time, someone came in and stole a laptop off the desk. The subjects were then shown a lineup of six suspects, none of whom was the actual criminal, and they were asked to pick out which member of the lineup, if any, committed the crime. Two days later, the witnesses were brought back for more questioning. Those who had identified a suspect were told that the person they identified had confessed, another person had confessed, all suspects continued to deny their involvement, or that the identified suspect had continued to deny his involvement. Those who had (correctly) said none of the people in the lineup committed the crime were told either that all suspects denied the crime, that an unspecified suspect had confessed, or that a specific suspect had confessed.

The results show that confessions can have a powerful effect on other evidence. Of the people who had identified a subject from the original lineup, 60 percent changed their identification when told that someone else had confessed. Plus, 44 percent of the people who originally determined that none of the suspects in the lineup committed the crime changed their mind when told that someone had confessed (and 50 percent changed when told that a specific person had confessed). When asked about their decision, "about half of the people seemed to say, 'Well, the investigator told me there was a confession, so that must be true.' So they were just believing the investigator," Hasel said. "But the other half really seemed to be changing their memory. So that memory can never really be regained once it's been tainted." What's more, people who were told that the person they wrongly pinpointed as the culprit had confessed saw their confidence levels soar. After that confirmation, they remembered the crime better and were more sure about details. The implications for inside the courtroom are obvious if eyewitnesses who incorrectly picked someone out of a lineup can become so sure of their choice after learning that the person confessed. "It is noteworthy that whereas physical evidence is immutable (once collected and preserved, it can always be retested), an eyewitness's identification decision cannot later be revisited without contamination," Kassin and Hasel write.

Kassin and Hasel suspect that false confessions may also affect the memories of people who are potential alibis for defendants. Kassin worked on the actual case of John Kogut, who was accused of raping and murdering a 16-year-old girl. Kogut was at a party for his girlfriend at the time the crime was committed, and he had multiple alibi witnesses. But after 18 hours of interrogation, Kogut confessed to the grisly crime. "After he confessed to the crime, [the witnesses] started dropping off one-by-one," Hasel said. " 'You know, maybe I saw him earlier in the night but not later; maybe I saw him later in the night but not earlier; it must have been a different night, I must be wrong.' " Kassin and Hasel are currently working on an experiment similar to their eyewitness study to test this theory on a broad basis.

This phenomenon may be explained by the same Loftus research about creating false memories that may have lead to the false confession in the first place. So it is plausible that eyewitnesses or alibi witnesses might begin to remember things differently when told about something as powerful as a confession. But what about scientific evidence? At least confessions can't change something as concrete as DNA evidence or fingerprints, right? Even that belief may be untrue.

In 2006, University College London psychologist Itiel Dror took a group of six fingerprint experts and showed them samples that they themselves had, years before, determined either to be matches or non-matches (though they weren't told they had already seen these fingerprints). The experts were now given some context: either that the fingerprints came from a suspect who confessed or that they came from a suspect who was known to be in police custody at the time the crime was committed. In 17 percent of the non-control tests, experimenters changed assessments that they had previously made correctly. Four of the six experts who participated changed at least one judgment based on the new context. "And that's fingerprint judgments," Kassin said. "That's not considered malleable. And yet there was some degree of malleability and one of the ways to influence it was to provide information about the confession."

The practical importance of this research extends well beyond the laboratory. In a white paper set to be published in Law and Human Behavior in 2010, Kassin and four other prominent confession experts make recommendations, including, most notably, mandatory taping of all interrogations in capital cases. Kassin has begun to research this idea. His preliminary data illustrates that, shown two versions of known false confessions (one that just included the confession or another that included the entire interrogation), subjects were significantly less likely to vote guilty when shown the entire interrogation. "The information that the jury doesn't have and needs is how did this guy come to confess and then, when he did confess, how did he know all this information about the crime if he in fact wasn't there," Kassin says. "So yes, I think videotaping is probably the single best protection to be afforded to a defendant."

That would help defendants who were coerced into confessing by police, but would do nothing to help those who lost alibi witnesses or were convicted with the help of eyewitness testimony because of knowledge of a confession. To combat that problem, Hasel and much of the scientific community argues for double-blind testing when handling evidence, meaning that the police officer handling the lineup doesn't know which of the member of the lineup is the suspect. "So they can't consciously or unconsciously direct [witnesses] to a particular person," she says.

And she wants to investigate whether judges and jurors can understand this topic of evidence dependence - the idea that a confession contaminates other evidence. If jurors are told that a false confession may have tainted other evidence, are they able to look at it objectively and make their own judgment? Can judges grasp its ramifications on appeals? Kassin believes that, because of the persuasive potency of confessions and evidentiary dependence, it's not good enough for judges to look at the other evidence and determine that a jury would have convicted even without the coerced confession.

"If it turns out that the confession corrupted the other evidence, then there is no such thing as harmless error," Kassin said. "I don't think you can look at that other evidence once there is a confession out of the box because once the confession is out there, it corrupts all that other evidence."

Posted December 1, 2009 By John Woolfolk

San Jose to Pay $97,500 to Settle Police Brutality Claim

Amid mounting allegations of excessive police force, San Jose officials have agreed to pay a tire store owner and his nephew $97,500 to settle a lawsuit stemming from a 2006 confrontation that escalated from a minor traffic incident into an international dispute over officers' treatment of Latinos.

The San Jose City Council Tuesday is expected to formally approve the settlement with businessman Ascencion Calderon and his nephew Samuel Santana. The pact had been tentatively approved in an earlier closed council session.

Reached at his Bascom Avenue shop, Calderon, 68, said he wanted to put the case behind him, but the settlement hasn't repaired his trust in police.

"Before, I trusted the police, every officer," Calderon said, at times with a son translating from Spanish. "Now, you never know what kind of person that officer is. I accept the settlement. But it's not satisfying to me completely. The damage they did to me was pretty bad."

The settlement similar in size to others the city has reached in recent years to resolve major civil suits comes as officials confront criticism over use of force in arrests involving relatively minor offenses and residents from immigrant communities.

Many in the city's Vietnamese community have been outraged over the May fatal shooting of a knife-wielding, mentally ill man whose family called 911 for help. More recently, the apparent police beating of a college student captured on a roommate's cell phone video has sparked concerns.

A Mercury News analysis in November found that each year, hundreds of routine encounters with San Jose officers escalate into violence and lead to resisting-arrest charges.

Weeks later, a council public safety committee unanimously ordered the city manager, the independent police auditor and the city auditor to review about 200 cases this year in which police charged people with resisting arrest and determine if excessive force had been used.

The settlement stemmed from a July 30, 2006, incident in which two officers pulled over Santana on Alum Rock Avenue at 7:30 p.m. because his Ford Excursion was missing the front license plate and because he wasn't wearing a seat belt.

Calderon, 65 at the time, and his 11-year-old grandson were eating at a nearby taco stand, and he approached the officers to see what was happening with his then-25-year-old nephew.

Officer Terry Kepler reported that he told Calderon twice to back away, then pinned him against the police car to keep him from interfering with the other officer. That officer, Robert McAlavey, said he ordered Santana, who had stepped out of his vehicle, to return to the cab but that Santana instead uttered an expletive and indicated he needed to help "my boss." McAlavey then pulled his gun and used pepper spray on Santana.

Calderon insisted he didn't disobey the officer's orders. But he alleged Kepler slammed his face into the hood of the patrol car, kicked him in the testicles and ground a baton into his face and neck even though he was not struggling or trying to escape. Santana alleged McAlavey called him a "Mexican wetback" and pepper-sprayed him even though he had already thrown up his hands in response to the officer's pistol.

Police charged Calderon and Santana with misdemeanor resisting arrest. Their case ended in a mistrial, and prosecutors later dropped the charges.

The incident drew little attention until March 2007, when Bruno Figueroa, the Mexican consul general at the time, cited it as an example of police mistreatment and demanded that San Jose police show more accountability and respect toward Latinos.

"This unfortunate sequence of events ... shows that when dealing with the Latino community, some San Jose police officers will not hesitate to use force, no matter how unjustified it may be," Figueroa wrote in a statement to the Mercury News.

Figueroa's criticism drew a rebuke from the head of the officers' union, Bobby Lopez, who suggested the Mexican government solve its own police problems "before he tries to solve ours."

After the city rejected Calderon's $1 million claim for damages against the officers and police department, he and Santana filed suit in June 2007.

City Attorney Rick Doyle said in a memorandum outlining the settlement that the offer was made "in light of the risks and costs" of proceeding to trial, including "exposure to substantial attorneys' fees" if Calderon and Santana won in court.

The city and plaintiffs reached the settlement following mediation with Santa Clara County Superior Court Judge Hector Ramon, Doyle said. The city does not admit liability in the settlement.

Alfredo Morales, the attorney for Calderon and Santana, said he preferred to reserve comment until the council finalizes the settlement with Tuesday's vote.

Contact John Woolfolk at 408-975-9346

Posted November 16, 2009 By Ryan J. Foley

Wis. officer tosses non-lethal grenade into cell

Wisconsin prison officials released a video that shows a guard tossing a non-lethal grenade designed for outdoor crowd control into an inmate's cell and running away as it explodes.

The Department of Corrections released the video Friday after The Associated Press filed a lawsuit last month seeking a copy under the state's open records law. The department agreed to pay $5,000 to cover AP's attorneys fees.

The AP requested the video after the state paid $49,000 to settle a lawsuit brought by the inmate, Raynard Jackson. He alleged the detonation of the stinger grenade in his cell at a maximum-security prison in Boscobel amounted to excessive force.

The department refused to release the video, saying it would expose the limitations of the prison's surveillance camera system. The AP, which was represented by Madison attorney Robert Dreps of Godfrey & Kahn, contended that was not true because the video was taken by a hand-held camera, not a surveillance camera.

The department acknowledged its mistake about how the video was taken but said the tape still could not be released because prisoners who view it could "devise counterstrategies" for when guards use force.

Under the settlement, the AP agreed to allow the department to redact portions of the video that showed guards preparing for the use of force. The department did not admit wrongdoing.

Legal observers said Monday it was unusual for the department to make public any video from inside the state's prisons.

"It's probably fairly novel in Wisconsin," said Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin, which monitors prison conditions and has sued the department in the past. "I can't say absolutely it's unprecedented, but the situation itself seems unique."

Pam McGillivray, a Madison attorney who has represented inmates, said she was surprised the video was released. She said the department has occasionally released videos showing guards using force to remove inmates from cells in her cases, but only under court orders that shield them from the public.

Jackson is the only Wisconsin inmate ever subdued by a stinger grenade, an explosive device that causes a flash of light, a loud blast and the spraying of rubber pellets. Prison officials say they would no longer detonate the device inside an inmate's cell but might in the event of an outdoor prison riot.

The video shows prison supervisor Joan Gerl tossing the grenade through an opening into Jackson's cell. She runs down the hall as the explosion shakes the cell door and sounds like a shotgun blast. Later, the video shows Gerl surveying minor damage to the cell door and its wall from the blast, and rubber pellets spread out on the cell's floor.

Officials at the prison - formerly known as Supermax - have defended the use of the grenade, saying it was appropriate to extract the 135-pound Jackson from his cell after he provoked a confrontation with guards. Jackson said he suffered hearing loss after the blast.

Posted November 13, 2009 By new scientist

Cocaine and pepper spray - a lethal mix?

DEATHS in US police custody during the early 1990s may have been the result of an interaction between capsaicin, the key ingredient in pepper sprays, and psychostimulant drugs, an experiment in mice suggests.

If the two have a fatal interaction in people then police forces might have to rethink their use of pepper spray as a non-lethal weapon, says John Mendelson of the Addiction and Pharmacology Research Laboratory at St Luke's Hospital in San Francisco, who led the mouse research.

In the early nineties, anecdotal reports emerged in the US of people dying after being sprayed by police. "They seemed to die very quickly," says Mendelson. At post-mortem, many of these people showed signs of having taken cocaine, so Mendelson wondered if capsaicin and cocaine could interact fatally in the body.

To investigate, his team injected cocaine, capsaicin or both at once into the abdomens of several groups of about 30 mice. Injections allowed them to control the dose of capsaicin the mice received, which wouldn't have been possible if the mice were simply sprayed, says Mendelson.

In one group of mice, cocaine was injected at a dose of 60 milligrams per kilogram of mouse weight, which killed just a few of them. But when the researchers injected a group with the same dose of cocaine plus capsaicin, the death toll was about half. "The presence of capsaicin in mice makes smaller amounts of cocaine more lethal," Mendelson says. When the team gave another group of mice capsaicin along with a higher dose of cocaine - enough to kill half of the mice on its own - the death toll rose to 90 per cent (Forensic Toxicology, DOI: 10.1007/s11419-009-0079-9). "We don't actually know how capsaicin reacts with cocaine to produce a lethal effect," admits Mendelson.

However, his team also reviewed 26 autopsy reports and Californian police reports between 1993 and 1995 of people who died shortly after being subdued with pepper spray. They noted that 19 of them had evidence of psychostimulants in their blood and nine had cocaine. Mendelson suspects that a fatal interaction takes place in the brain between capsaicin and psychostimulants.

Toxicologists are intrigued, but say further evidence is needed. "In real-life situations, humans inhale pepper spray, whereas these mice had the substance injected directly into their abdominal cavities," says Andy Smith of the Medical Research Council in Cambridge, UK. Kathryn Cunningham of the Department of Pharmacology and Toxicology at the University of Texas in Galveston says we don't know how much of the capsaicin that is sprayed in someone's face makes it into their bloodstream.

Peter Bibring, an attorney at the American Civil Liberties Union in Los Angeles, says the study adds weight to the ACLU's concern that pepper spray could be fatal. "Police departments need to make adjustments to minimise the chance it will be used on those under the influence of cocaine."

Norm Leong, a sergeant at the Sacramento Police Department in California says this could be a tough call: "It's impossible to know if someone is under the influence of cocaine, some other drug", has mental issues, or is just resisting arrest.

Posted November 11, 2009 By Shelley Murphy, Globe Staff

Police are cleared in death of Celtics fan

An independent panel found yesterday that there was a "lack of supervision" and other "missteps" by Boston police officers in the arrest of 22-year-old David Woodman during the 2008 Celtics championship celebration, but that none of the mistakes contributed to his death.

But Woodman's parents said that they believe there was a coverup and that their son, who stopped breathing while in custody and died 11 days later, would be alive today if not for his encounter with police.

Former US attorney Donald K. Stern, who spearheaded the three-member commission at the behest of the police commissioner, said there was "a gap of accountability at the scene" after Woodman, an Emmanuel College student, was arrested for public drinking on June 18, 2008, and left handcuffed on the ground. Stern said it is unclear whether officers monitored Woodman and estimated that Woodman may have stopped breathing for as long as five minutes before officers discovered he was in distress.

"It is likely that his distress was observed and attended to as soon as it happened," the 19-page report says. "But, it is difficult to demonstrate that with certainty. Thus, we conclude that there was a failure by supervisory personnel to control and manage the arrest scene."

Stern, who released the report during a press conference at Boston police headquarters, with Commissioner Edward F. Davis, said other problems included the failure of the arresting officer or anyone else at the scene to write a report. All nine officers who participated in the arrest went to the hospital immediately afterward to be treated for stress.

Despite the mistakes, the report says: "We believe that, by and large, the police officers acted reasonably and in no way anticipated or could have predicted the outcome. Still, things could have been handled differently."

A medical examiner concluded that Woodman died of an arrhythmia caused by a preexisting heart condition.

Woodman's parents, Cathy and Jeffrey Woodman of Southwick, were visibly upset during a press conference at their lawyer's Boston office.

"I think they're lying," Cathy Woodman said. "In my opinion . . . those nine officers, the ones who handled him and the ones who witnessed, are to blame for his death."

Stern's panel made nine recommendations to Davis, including enhanced training for officers regarding the monitoring of prisoners after arrest, clear guidelines on handling public drinking during major events, a requirement that arresting officers write reports, and a policy for handling officer stress at scenes.

Davis said he has implemented some recommendations and will adopt others.

"I believe that officers in no way could have foreseen or prevented Mr. Woodman's death," Davis said. "However, we will learn valuable lessons from this and will apply those lessons moving forward."

He said internal affairs investigators found no rules or regulations were violated by the officers involved.

Woodman was walking home to Brookline with four friends and carrying a cup of beer after watching the Celtics game at a bar when they passed the officers at Fenway and Brookline Avenue. One of Woodman's friends said Woodman remarked, "Wow, it seems like there's a lot of crime on this corner."

The friend said officers slammed Woodman to the ground and ordered his friends to leave the area or face arrest.

Officers said Woodman refused to stop and tossed his cup, splashing officers with beer. They said he clung to a wrought-iron fence and flailed his arms, requiring some five officers to tackle him. He was handcuffed on the ground when police realized he was not breathing, called an ambulance, and performed cardiopulmonary resuscitation.

Stern said the officers did some things right and other things wrong.

The report says officers falsely told EMTs who arrived at the scene that Woodman suddenly collapsed while they were talking to him, but concludes it would not have made a difference in his treatment.

The Woodmans accused police of using excessive force and neglecting their son, saying that by the time he arrived at Beth Israel Deaconess Medical Center, he had significant brain damage from a lack of oxygen. Woodman, who suffered an arrhythmia while in custody, regained consciousness, then died June 29 after suffering another arrhythmia while hospitalized.

In January, Suffolk District Attorney Daniel F. Conley concluded that the officers did not use excessive force and were not to blame for Woodman's death.

Stern's commission, which focused on police policy and procedure, criticized the investigation of Woodman's death by the Boston police homicide unit, saying interviews were "surprisingly cursory," officers were not asked to file reports, and "there was no effort to ask probing or even detailed questions."

The report says Officer Michael McManus told detectives he noticed blood on his hands following Woodman's arrest and believed it came from Woodman, yet "his response was cut off and no further questions were asked in relation to that fact."

Attorney Howard Friedman, who represents the Woodmans, said Woodman had abrasions or contusions on his face and arm, a cut under his chin, and a blunt force injury to his buttock.

"We feel that there was a coverup," said Friedman.

The Woodmans said they feel that justice has eluded them.

"Nothing could make us happy, because we've lost our son," Cathy Woodman said. "It's hard for us to hear, 'It was just a kid with a heart problem; everybody did the right thing.' "

© Copyright 2009 The New York Times Company

Posted November 9, 2009 By MAGGIE LILLIS and ANTONIO PLANAS

Second person dies after being restrained by police

A person who was taking numerous unknown medications and acting erratically died Wednesday night after a Las Vegas police officer "applied a lateral vascular neck restraint" in an attempt to subdue the person, police said today.

It was the second person to die after being detained by the Metropolitan Police Department since an unrelated incident on Sunday night.

Wednesday's incident occurred about 6:22 p.m. in the 7700 block of Scoby Court, near Buffalo Drive and Tropicana Avenue.

Police didn?t mention the gender of the subject, but a neighbor said it was a man.

Neighbor Alexander Martinez said the man, whose name is Dustin or Dusty, had lived in the house for a few months. He was in his 20s, weighed about 300 pounds and a was frequent smoker, Martinez said.

A state social worker called police and advised them that the man was not taking his medication. When police arrived, the social worker told them he might have turned on gas valves inside the residence. The officers then began speaking to the man, who continued to behave erratically, police said.

After speaking to the subject for one hour, one of the officers located a rear door that was open and entered the home, police said.

The subject began "violently resisting officers," and one officer applied a neck restraint, police said.

After the arrest, the man stopped breathing. Medical personnel administered aid and transported him to a hospital where he died.

Police also announced Thursday that a 47-year-old man who was "combative" died Sunday night after police tried to subdue him.

Daniel Morantes died about 6:22 at a residence in the 500 block of North 14th Street, near Bruce Street and Bonanza Road, where a fight between roommates involving a knife was reported, police said.

Police said Morantes acted erratically when officers arrived. He was subdued by the officers but stopped breathing after paramedics arrived. He later died at Sunrise Hospital and Medical Center.

Police plan to hold a press conference later this afternoon to discuss these incidents.

Posted November 9, 2009 by Shannon P. Duffy

Philadelphia to Pay $5.9 Million to Settle Strip-Search Claims

A federal judge has approved a $5.9 million settlement in the civil rights suit challenging Philadelphia's blanket policy of strip-searching every person admitted into the city's prison system.

In her 52-page opinion in Boone v. Philadelphia, U.S. District Judge Mary A. McLaughlin also awarded attorney fees of more than $1.7 million -- 30 percent of the settlement fund -- to the team of plaintiffs lawyers from six firms, led by Daniel C. Levin of Levin Fishbein Sedran & Berman.

McLaughlin noted that the plaintiffs team had logged more than 2,800 hours on the case over the past four years and said her fee award resulted in a "multiplier" of 2.3 times the lawyers' usual hourly billing rates.

As part of the settlement, the city adopted a new policy that replaces strip searches with non-invasive metal detectors and ion scanners that are capable of detecting any object that could be smuggled into the prisons.

The high-tech solution allowed the lawyers to avoid litigating a constitutional question that has proven to be a vexing one for the courts.

The city at first appeared intent on defending its blanket policy of strip-searching every person upon admission into the city's prisons, arguing that such a policy was needed to prevent contraband such as drugs or weapons being smuggled in.

But the plaintiffs lawyers insisted that the law was on their side and that most of the federal appellate courts have struck down such blanket policies as unconstitutional. The question remained an open one in Pennsylvania because the 3rd U.S. Circuit Court of Appeals has not yet ruled on the propriety of blanket strip-search policies.

So far, eight of the 12 federal circuits have held that a policy to strip search all pretrial detainees is unconstitutional, and that prison officials must have a "reasonable suspicion" that a particular arrestee is concealing weapons or other contraband before conducting a strip search.

However, the city's lawyers could see that the trend was beginning to lean in their direction.

The 11th Circuit recently broke ranks and declared that the leading U.S. Supreme Court decision on the subject allows for the interest of prison security to outweigh the individual privacy interests of detainees, regardless of whether there is reasonable suspicion that the particular arrestee is concealing weapons or contraband.

The split in the circuits may soon sharpen now that the 9th Circuit has agreed to reconsider its stance on the issue before an en banc panel.

But in the Philadelphia case, McLaughlin decided to use the legal uncertainty as leverage to promote settlement talks, sending the lawyers first to U.S. Magistrate Judge Elizabeth Hey and later to James Melinson, a retired federal magistrate judge.

Now McLaughlin has certified the case as a class for settlement purposes and approved a settlement that will result in payments ranging from $100 to $1,400 for arrestees who were subjected to strip search without any reasonable suspicion.

Under the terms of the settlement, the class was divided into two subclasses. The first consisted of arrestees who were sent to prison on misdemeanor charges and had no previous arrests for drug charges or violent crimes. Those class members will receive pro rata shares of a $5.1 million fund, with each receiving $1,400.

The second subclass consisted of those with much riskier claims, because of prior arrests on drug or violence charges, but who would still have been able to argue that their strip searches were unconstitutional because they stemmed from the blanket policy. Those class members will each receive $100.

McLaughlin, in her opinion approving the settlement, found that the $1,400 awards to the first subclass are "commensurate with the amounts received by class members in settlements of similar actions."

The $100 awards to the second subclass were also fair, McLaughlin found, because "individuals meeting the definition of Subclass II are often completely excluded from recovery in strip-search cases."

City Solicitor Shelley R. Smith and Chief Deputy City Solicitor Craig Straw, who heads the office's civil rights section, could not be reached for comment.

Joining Levin on the plaintiffs team were attorneys Christopher G. Hayes of West Chester, Pa.; Charles Joseph LaDuca and Alexandra Warren of Cuneo Gilbert & LaDuca in Washington, D.C.; Elmer Robert Keach III of Amsterdam, N.Y.; Gary Mason of Washington, D.C.; and Kevin T. Birley of Philadelphia.

Posted November 5, 2009 by Rocco Parascandola

NYPD panel to scour lawsuits for police misconduct

The NYPD is trying to track down bad cops by looking for clues in big-bucks civil cases alleging police misconduct, the Daily News has learned.

Lawsuits and settlements are handled by the city's Law Department - but the Police Department plans to scour the files for evidence of perjury, corruption and other wrongdoings.

A review committee recently was formed to look at many cases, including those that cost the city more than $250,000 and those that include accusations of discrimination or retaliation.

The panel will have plenty of work. In fiscal year 2008, the city paid out $103 million to settle suits against the NYPD - including $35 million in cases that alleged improper police action, a 40% jump from 2007.

NYPD Deputy Commissioner Paul Browne said the goal is to "identify those [suits] which may have implications for department policies and procedures."

Another catalyst for the committee is the growing concern about cops lying under oath, a source close to Internal Affairs Chief Charles Campisi told The News.

Under the old system, if a suspect sued for false arrest and it turned out the officer had lied about the circumstances, the NYPD might never find out.

Now, there's a process in place to red-flag those problems.

The reviews may mollify some critics who have long charged that the nation's largest police force does little to keep track of police misconduct suits.

But some say it doesn't go far enough because the new system excludes "nuisance" settlements - payouts of $10,000 or $20,000 in cases the city thinks it could win but would rather avoid trying because of the cost.

Donna Lieberman, executive director of the New York Civil Liberties Union, said leaving out the smaller cases "will undermine the whole endeavor."

City Councilman Peter Vallone, who has pushed the city for an oversight mechanism, agreed the review process will make it easier to spot police corruption.

And as a side benefit, he said, it also might root out criminals looking to make a buck off the city with frivolous suits.

He pointed to a recent News exposé about a Brooklyn drug crew whose members repeatedly had sued the city - and been paid off - at the same time that they were dealing drugs.

"These criminals know if they sue, the city is likely to settle rather than go to trial," Vallone said.

The Civilian Complaint Review Board already is charged with investigating allegations of misconduct, but not every person who sues files a CCRB complaint.

A lawyer who recently secured a $300,000 settlement for a Queens man paralyzed in a confrontation with a cop believes the new reviews will reveal a pattern of corruption and bad behavior.

"You're not going to find many problems on the upper East Side," said the lawyer, Anthony Iadevaia. "But you're going to see them in Harlem and the Bronx. You're going to see the same precincts over and over again."

Posted November 10, 2009 By Keith L. Alexander

D.C. to pay $450,000 to war protesters over 2002 interrogation
FBI also involved in questioning at parking garage during rally

The District agreed to pay $450,000 Monday to eight war protesters to settle a civil lawsuit they filed after a 2002 interrogation.

The protesters had alleged that FBI agents had detained them in a Washington parking garage and interrogated them on videotape about their political and religious beliefs.

For years, authorities suggested that the interrogation never happened. FBI and D.C. police said they had no records of such an incident. And police told a federal court that no FBI agents were present when officers arrested the protesters for trespassing.

But as attorneys for the protesters were preparing for the trial, which was scheduled to begin in federal court Nov. 30, they unearthed D.C. police logs that confirm the role of a secret FBI intelligence unit in the incident.

As part of the settlement, the District agreed to pay each of the protesters $25,000, with the rest of the money going to attorney fees and litigation costs, said the protester's attorney, Mara Verheyden-Hilliard of the Partnership for Civil Justice.

As a result of the settlement, Verheyden-Hilliard said, D.C. police agreed not to allow outside agencies to question people in police custody without a D.C. police officer signing off on the questioning.

"We believe this will make it impossible for this kind of illegal action to occur again," she said.

Verheyden-Hilliard said the group was detained and interrogated in the garage of a building at 1275 K St. NW as the demonstrators returned to their parked van to retrieve food. What sparked the suspicion of the plainclothes FBI agents was that the protesters were wearing black -- garb the FBI and police associated with anarchists.

The demonstrators were part of a cacophonous protest April 20, 2002, in which about 75,000 people gathered on the Mall. Demonstrators for and against the war in Iraq gathered, in addition to people rallying for an end to U.S. aid to Israel and for peace in the Middle East.

The settlement was the first of at least four civil cases against the District filed by demonstrators who have charged the city with violating their rights and in which the District had "problems" with the evidence or proof, said D.C. Attorney General Peter Nickles. Nickles said he hopes to settle the remaining three cases by Thanksgiving.

"I've committed to getting to the bottom of these various problems and at the same time to get them resolved," Nickles said.

Posted November 2, 2009 by Washington Post Op-Ed

The right not to be framed: Can prosecutors be sued?

"THERE IS NO Freestanding Constitutional 'Right Not To Be Framed.' " So states a brief filed by Iowa prosecutors hoping to persuade the Supreme Court to dismiss a lawsuit against them for allegedly fabricating evidence that led to the 25-year incarceration of two innocent men. It's a breathtaking proposition that the justices should roundly reject when they hear the case Wednesday.

According to court documents, the prosecutors took a leading role in 1977 in investigating the murder of a recently retired white police officer at an Iowa automobile dealership where he was working security. The prosecutors allegedly coaxed a witness to offer a version of events that implicated two African American men, Curtis W. McGhee Jr. and Terry J. Harrington; the witness gave several different statements over time and had trouble keeping his facts straight. Prosecutors also allegedly coerced other witnesses to lie and withheld evidence that pointed to a different culprit.

These contradictions and prosecutors' apparent hand in the alleged fabrications came to light years after the men were sentenced to life without parole when a prison barber made a public records request of police files in the case and came across exculpatory information that had been kept from defense lawyers. The witness ultimately recanted his story. Mr. Harrington's conviction was overturned by the Iowa Supreme Court, which concluded that the star witness was a "liar and perjurer," and Mr. Harrington was freed. Mr. McGhee petitioned for a new trial but ultimately entered a conditional guilty plea that allowed him to go free with time served.

Mr. McGhee and Mr. Harrington, who say that they were targeted because of their race, later sued the two prosecutors and the Iowa county that employed them, using a Reconstruction-era law that gives individuals the right to seek damages from government officials who knowingly deprive them of their constitutional rights. The prosecutors argue that they should be immune from such lawsuits and point to a line of Supreme Court cases that shield prosecutors from legal consequences when they carry out their duties. They argue that state and bar disciplinary structures are best able to deal with accusations of prosecutorial misconduct and that prosecutors will be chilled in doing their jobs if they worry about being sued for innocent missteps.

Prosecutors need to be able carry out their duties without fear that they'll become the targets of personal lawsuits if defendants are found not guilty or charges are dropped. But such lawsuits face high hurdles. The Supreme Court has recently -- and correctly -- made it even more difficult for plaintiffs to make officials personally liable unless there's convincing evidence that they were directly involved in knowingly violating a clearly established constitutional right. Mr. McGhee and Mr. Harrington have shouldered that burden and should be allowed to proceed with their case.

The vast majority of prosecutors perform honorably and understand that they are duty-bound not just to secure convictions but to seek justice. Those who don't often suffer no consequences at the hands of state or bar organizations, as a brief in support of Mr. McGhee and Mr. Harrington convincingly argues. For these few renegades, perhaps the prospect of being held liable will help to keep them in line or, at least, hold them accountable.

Posted 8/23/2009 by Penknife Press

Open Letter to the President Regarding Prof. Henry Louis Gates, Jr. and Sgt. James Crowley

Inviting Prof. Gates and Sgt. Crowley to the White House for beer was a mistake. Moreover, you should have stood by your comment that the actions of Sgt. Crowley were stupid, because they were.

This incident has nothing to do with race. It has nothing to do with burglary except to the extent that a possible burglary was the reason Sgt. Crowley was dispatched to the scene in the first place.

The issue here is whether or not a citizen has the right to revoke an invitation issued to an officer of the State. The next issue is whether or not the officer should be held accountable for ignoring that revocation, either civilly, criminally, or both. This case smacks of home invasion and false arrest. Prof. Gates probably has a valid cause of action against the Boston Police Department, which, for the good of the country, he ought to pursue.

Crowley had the right to go to Prof. Gates's house to investigate the possibility of a crime. Prof. Gates invited him in. Prof. Gates proffered evidence that he was in his own home. At that point, Crowley was required by law to leave the premises if ordered to do so by Prof. Gates, verbally or by gesture. Even if Prof. Gates were rude, any act by Crowley other than to turn on his heels and exit would be unlawful.

This is where Crowley's stupidity came into play. He arrested Prof. Gates for disorderly conduct! Given that they were in Prof. Gates's home, it would be Prof. Gates who would determine what conduct was disorderly. And certainly an uninvited guest would not be in any position to bring that charge. The Boston Police Department dropped the charge, but it was a phony charge, anyway. They weren't doing anyone a favor. They were covering their butts.

Crowley knew he had no authority in Prof. Gates's home. That is why he asked Prof. Gates to step outside. Rightfully, Prof. Gates refused, whereupon Crowley arrested him.

Police officers in this country today are surly, arrogant, rude, armed, dangerous and drunk with power. Oklahoma State Trooper Daniel Martin and Chicago Police Officer Anthony Abbate are prime examples. Their incidents are unique only to the extent that their actions were video taped. Police officers of all stripes commit these kinds of abuses routinely. Sgt. Crowley is merely the latest example to come to the public's attention.

The police didn't get this way because their jobs are hard. They are taught to be this way in cop school. It is part of their lesson on "retaining control of the situation." It doesn't help that judges refuse to hold them accountable.

The rights of citizens in this country are under serious attack. Every cop in the country knows that, with limited exceptions, he has no authority inside the home. Crowley knows it. But instead of being held accountable for trampling Prof. Gates's rights, he gets to drink a beer at the White House. Cops from coast to coast to coast are hacking new notches in their trample-the-rights-of-citizens pistol handles.

The police need to be reined in. But after the White House beer party, that's not likely to happen any time soon.

Posted 11/29/2006 by David Heinzmann

Chicago brass ignores culprits, key expert says

Chicago police officials have deliberately ignored corruption within the ranks, giving bad cops a sense of security to commit crimes on the job without being caught, according to a national expert on internal affairs hired by plaintiffs suing the city.

The damning report by Lou Reiter, a former deputy chief of the Los Angeles Police Department, contends that police officials, including Supt. Philip Cline, have continued a "practice of indifference" toward corruption that "makes officers who engage in misconduct feel protected."

He says in the report that although the department has legitimate guidelines against police misconduct, officials don't enforce the policies.

Reiter has advised nearly 1,000 police departments, including New York's, and has been hired by the City of Chicago as an expert witness in police-brutality lawsuits at least four times.

Chicago police officials say the criticism is based on limited knowledge of the department, and it does not take into consideration policy reforms currently under way to thwart corruption and abuse before it becomes a problem.

Reiter's report is part of a federal lawsuit filed a decade ago by a husband and wife pair of Bureau of Alcohol, Tobacco and Firearms agents. They charge that after they blew the whistle on corrupt cop Joseph Miedzianowski, he influenced the Internal Affairs Division to turn the tables and attack their credibility.

Despite the age of the lawsuit, Reiter's analysis of the department was completed this year. As part of the same lawsuit, a former assistant U.S. attorney testified that in each of the 18 corrupt-cop cases he prosecuted, he encountered a "blue wall of silence," in which fellow officers turned a blind eye to corruption and later resisted cooperating with criminal investigations of their colleagues.

The blue wall includes not only failing to report the criminal conduct of fellow officers, "but actually not interrupting or stopping the criminal activities if you come about them," the former U.S. attorney, Brian Netols, testified in a sworn deposition. Although he had left the government for private practice at the time of his deposition, Netols has since rejoined the U.S. attorney's office as a prosecutor.

The testimony comes at a time when the Chicago Police Department is on the defensive about its handling of corrupt officers. There has been ongoing criticism since the release in July of a special prosecutor's report alleging that detectives under Cmdr. Jon Burge tortured suspects in the 1980s while the department often looked the other way.

And the arrests of four members of the Special Operations Section in September revealed that police internal affairs had been aware of numerous allegations against the officers for four years without taking disciplinary action against them.

Cline said that the charges against Jerome Finnigan, Carl Suchocki, Keith Herrera and Thomas Sherry showed the department has zero tolerance for corruption. But the men were charged with a string of robberies, kidnappings and false arrests only after the Cook County state's attorney's office began to investigate the officers because of their behavior in court.

While Cline and other officials have professed that the department does not tolerate corruption or brutality, the report and Netols' testimony suggest that police leaders know their policies are inadequate and have done little to reform.

Reviewed many records

Reiter based his charges on a review of department policies, depositions of police officials and prosecutors in court cases, department reports and statistics on corruption and abuse complaints against officers.

Police officials "made a conscious choice to not implement a reasonable system to identify and remediate officers who exhibit negative performance, behavior and/or attitudinal problems," according to the report.

Reiter declined to be interviewed about his report, citing the pending litigation.

Police officials acknowledge that their methods to identify patterns of complaints against officers have not been effective in the past. But the department is testing a new system that would not only identify patterns, but also do a better job of reinforcing ethical conduct before officers stray, said Assistant Deputy Supt. Deb Kirby, who took over the Internal Affairs Division 2 1/2 years ago.

"Most large law enforcement agencies are struggling to identify poor performance issues," Kirby said. "Most are doing it under mandates with the federal government. The Chicago Police Department is doing this on their own."

Kirby also takes issue with Netols' suggestion that it is part of the department's culture to turn a blind eye toward corruption.

"On a day-to-day basis, I deal with officers who have integrity and ethics who call the Internal Affairs Division to report conduct they observe," she said.

Reiter and Netols are expected to testify in the trial of the suit brought by former ATF agent Diane Klipfel and her husband, Michael Casali, who is still an agent. The couple allege their careers, and to some extent their lives, were ruined when they tried to blow the whistle on Miedzianowski in the early 1990s. Instead of investigating Miedzianowski, internal affairs officials turned the probe on Klipfel and Casali, and years passed before the FBI investigated and indicted the notorious gang investigator.

Similar findings

Other experts who have probed the Police Department's handling of complaints have come away with similar findings. The Police Department's methods of investigating its own have been deeply flawed for a long time, said law professor Craig Futterman, who has studied the department's handling of complaints against officers.

Futterman, who teaches at the University of Chicago, gathered data for his studies during lawsuits in which he represented alleged victims of police abuse.

"What I see is a picture of impunity within the Chicago Police Department. You have a small number of officers who perpetrate crimes who have absolute impunity," he said.

A relatively small number of police officers are responsible for the vast majority of complaints, he said. Over the last five years, about 5 percent of police officers have a troubling number of complaints against them, Futterman said. About 85 percent of officers have been the subject of three or fewer complaints. But he identified 662 officers, out of about 13,500, with 10 or more complaints.

Even when negative public attention from a police scandal is focused on how the department handles internal investigations, he said, the results are often ineffective.

"There's a big police scandal, and you'll get these big pronouncements, `internal investigation,' `no stone unturned,' and `we're going to do all these great things,'" Futterman said. "And then the dust settles, and it ends up being business as usual."