Tag Archive | Civil Rights

The FISA Courts Are Even Worse Than You Knew

By Jeffrey Rosen

Last week, with little fanfare, the Foreign Intelligence Surveillance Court (FISA) released a previously secret opinion upholding the National Security Agency’s mass surveillance of telephone metadata. The opinion, which deserves more attention than it has received, is a cavalier piece of work. Judge Claire Eagan fails even to consider, let alone to rebut, the strong arguments suggesting that the NSA programs violates both the U.S. Constitution and section 215 of the Patriot Act, the statutory provision the government has invoked to authorize it. The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to conduct an independent review of the legality of the NSA surveillance program, and Justice Antonin Scalia said yesterday that he expects the Court to eventually hear a version of the case. But because the Court may be unlikely, for technical reasons, to rule squarely on the merits, congressional reform of the FISA court is now more urgent than ever.

Read rest of the article here http://www.newrepublic.com/article/114853/fisa-court-decision-upholding-surveillance-joke

WSJ – Cellphone-Wiretap Ruling Is a Headache for Prosecutors

Opinion Says Authority to Listen In on Calls Doesn’t Cross Federal-Court-District Boundaries

JOE PALAZZOLO

A recent ruling by the Fifth U.S. Circuit Court of Appeals in New Orleans said that while cellphones may move easily between the country’s 94 federal districts, the authority to tap them doesn’t. The ruling affects the wiretaps typically used in criminal investigations, especially by the Drug Enforcement Administration, which is part of the Justice Department.

Former law-enforcement officials said the Aug. 26 opinion is among the most significant in recent memory governing the use of such wiretaps and could pose administrative headaches for law-enforcement agencies, unless Congress stepped in, which most regard as unlikely.

The appeals court said that for the federal government to intercept calls on a cellphone, either the phone itself or the hub where agents listen in on the calls must be in the district of the judge who authorized the wiretap. The Justice Department had previously interpreted the law to allow it to continue intercepting calls on a phone that wandered outside of the district in which the wiretap was authorized, former officials said. Now, federal investigators in Louisiana, Mississippi and Texas—the states covered by the Fifth Circuit—run the risk of having evidence suppressed if a cellphone they have tapped crosses federal boundaries.

“God help you if the [suspect] is driving down the highway, having a conversation on his cellphone and crosses into another district,” said Mark Eckenwiler, a former Justice Department official who worked on the Fifth Circuit case. While the ruling is only legally binding on those states, defense lawyers across the nation are also likely to invoke it as they seek to get wiretap evidence against their clients thrown out, he added.

The Justice Department has asked the court for a month to consider its next step. A DEA spokeswoman referred questions to the Justice Department, which declined to comment.

In the Fifth Circuit case, DEA agents and federal prosecutors in southern Mississippi who were investigating a drug-trafficking organization received authorization from a local judge to tap the cellphone of Richard North, a Houston native whom they suspected of supplying local dealers with cocaine. Mr. North was stopped in May 2009 by Texas state troopers acting on information from federal investigators who believed he was on his way to make a delivery in Mississippi.

He was released after a search turned up no drugs, and he headed home to Houston. Unaware that his phone was tapped, he called a friend and was overheard telling her that the troopers had failed to uncover the cocaine hidden in his car, according to court documents. A DEA agent listening in from Louisiana forwarded the information to officers in Texas, who stopped him a second time and found the stash.

Mr. North pleaded guilty to conspiracy to distribute five kilograms of more of cocaine, but he reserved the right to challenge the wiretap on appeal to the Fifth Circuit.

The appeals court decided that the Mississippi judge erred in issuing the warrant, because the phone was in Texas, investigators were in Mississippi and the listening post was in Louisiana, putting them all in separate districts. “In short, the district court…lacked the authority to permit interception of cellphone calls from Texas at a listening post in Louisiana,” the Fifth Circuit said, in an unsigned opinion.

Federal law exempts “mobile interception devices” from jurisdictional requirements, and at least one appeals court, the Seventh U.S. Circuit Court of Appeals in Chicago, has interpreted such devices to include cellphones.

Hanni Fakoury, a staff attorney at the Electronic Frontier Foundation, a civil-liberties group, said in an email that the Seventh Circuit ruling allowed the Justice Department to seek out “a more advantageous jurisdiction (and a more sympathetic judge) before applying for a wiretap.” The Fifth Circuit, however, said “mobile interception device” refers to a device used to capture communications and not a mobile phone, restoring what Mr. Fakoury described as an important safeguard against prosecutors seeking judges believed to provide preferential treatment to the government.

Norman J. Silverman, a lawyer for Mr. North, said the decision was the first major “reining in” of the Wiretap Act since 1974, when the Supreme Court ruled that the power to authorize wiretap applications inside the Justice Department was restricted to a few top officials.

In the near term, law-enforcement officials may need to set up temporary listening posts in districts where wiretap warrants are issued, said Mr. Eckenwiler, now senior counsel at Perkins Coie LLP. That solution is unlikely to sit well with the DEA, which uses these kinds of wiretaps more than any other agency and relies heavily on regional listening posts outfitted with sophisticated eavesdropping technology and staffed full-time with federal employees and contractors, who transcribe and translate what they hear. Of the 1,354 federal wiretaps authorized in 2012, 94% were used in narcotics investigations, according to the administrative office of the U.S. Courts.

“If you want to run 15 intercepts, the best place to run them is in one place—not 15 places,” said David Wilson, a retired 32-year veteran of the DEA.

The Justice Department could funnel wiretap applications to the districts with regional listening posts, but that could create delays for cases in which taps need to “get up” quickly to determine deliveries and shipment of drugs, said Stephen J. T’Kach, a former Justice Department official who worked in the surveillance unit.

Write to Joe Palazzolo at joe.palazzolo@wsj.com

http://online.wsj.com/article/SB10001424127887323864604579067033554325594.html

The Volokh Conspiracy – On Zimmerman “Provocation and Self-Defense”

Provocation and Self-Defense

 • July 16, 2013 12:15 am

One recurring comment I’ve heard on the Zimmerman case is that Zimmerman was in the wrong for following Martin in the first place, and therefore couldn’t use deadly force when Martin reacted violently in response (perhaps in what Martin perceived was self-defense). This is an interesting and complicated question, which Prof. Alafair Burke (Huffington Post) discusses in some detail; I thought I’d also discuss it, with some overlap with Prof. Burke’s analysis.

To begin with, it’s clear that the right of lethal self-defense is lost in some situations. If D criminally attacks V with a knife, V takes out a gun, and D stabs V, D can’t defend himself by saying “I was in reasonable fear of death or grave bodily harm.” That risk of injury happened because D was committing a serious crime in the first place.

But what if D does something that’s noncriminal, but nonetheless foreseeably triggers a violent reaction by V, and then D uses deadly force to protect himself against that reaction? Has D also lost the right to lethal self-defense, because he could have avoided the need for such deadly force by avoiding the earlier act — or because he more broadly “provoked” the occasion for such deadly force? (Note that this is a separate kind of provocation from that which reduces a murder charge to voluntary manslaughter; though the label is the same, the legal rules and consequences are completely different.)

Let’s consider a few scenarios:

1. D knows that V is insanely jealous, and has threatened to attack D for dating V’s ex-girlfriend. Nonetheless, D keeps dating her, and even appears with her in places where V might well see them. V attacks D in a way that threatens D’s life, and D shoots V.

2. D knows that V hates him, and that V is likely to attack D with deadly force when V sees him. (Maybe V is a rival gang member, or maybe V just hates D.) Nonetheless, D keeps going (legally armed) to a public place where he knows V periodically hangs out. V attacks D in a way that threatens D’s life, and D shoots V.

3. D, who is black, knows that there’s a race riot outside the house at which he is staying, and the mob had been baying for his blood before he ran into the house. But D goes (legally armed) onto the street, rather than staying in the house or escaping through a back alley. See Laney v. United States, 294 F. 412 (D.C. Cir. 1923). V, one of the white rioters, attacks D in a way that threatens D’s life, and D shoots V.

4. D goes to a brothel, where she knows her husband V is visiting a prostitute, and claims that “she went to this house to persuade her husband to leave there and return home with her.” The husband, however, who had in the past “threatened to kill her if she came to this house for him” and had “beaten her on several occasions,” attacks her in a way that threatens D’s life, and D shoots V. See Moore v. State, 160 S.W. 206 (Ark. 1913) (for whatever it’s worth, D and V in this case were both black).

5. D, “a 40-year old black woman, saw an elderly white man and woman sitting on a bench outside an apartment building and said to them, ‘Good morning. How are you?’ When the couple did not respond, she asked why they did not return her greeting. The woman, [V], said to appellant, ‘Get away from here you dirty nigger, you don’t belong here.’ Appellant responded with a racial slur and an obscene ‘mooning’ gesture and the two women wound up in a physical altercation. According to appellant and her witness, … [V] got up from the bench, approached appellant, and started swinging at her. In response, appellant stepped back and pushed [V]. [V] staggered back and then fell down on some shrubbery…. Within a half hour, [V] died of heart failure.” See Gibbs v. State, 789 So. 2d 443 (Fla. Ct. App. 2001) (a criminally negligent injury case rather than a murder case, but one in which the self-defense was nonetheless in play).

What should the law do in these situations? The general answer in most states, as best I can tell, is that the law tends to conclude that D loses his right to lethal self-defense on grounds of provocation only if he had the specific purpose of provoking V into threatening D with death or serious bodily injury, so that D would have an opportunity to kill or seriously injure V. If D simply knew that it was very likely that V would react violently, that is not enough.

Interestingly, the cases cited in items 3 and 4 are departures from this general rule. In Laney, the court held that Laney wasn’t entitled to a self-defense instruction because he knew that it was “almost inevitabl[e]” that a deadly confrontation would arise, and “had every reason to believe that his presence [on the street] would provoke trouble.” In Moore, the court seemed to go even further, taking the view that Moore wasn’t entitled to the instruction because she was “expecting trouble.” (The court also said she was “probably looking for [trouble],” but if it’s just a matter of probability, that should be a matter for the jury to decide; the court thus seemed to take the view that D’s “expecting trouble” when she enters a particular situation armed is sufficient to strip her of her right to use lethal force in self-defense if serious trouble does arise.)

But from the cases that I’ve read — and I’ve read quite a few — D.C. and Arkansas are outliers on this score, and usually the right to self-defense is lost only if D acted with the specific purpose to provoke a violent attack. The Model Penal Code takes this view as well.

Now on to Florida. Gibbs is a Florida precedent, and it was interpreting the Florida provocation statute, which has not been changed by the Stand Your Ground law:

The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Note that “provokes” here does not indicate whether D only loses his right to self-defense if he has the specific purpose of causing V to use force against D, or if it is enough if D acts in a way that he knows (or should know) is highly likely to cause V to use force against D. But Gibbs reversed D’s conviction, for the following reason (emphasis added):

The instruction stated that appellant could not defend herself with non-deadly force if she “initially provoked” the victim. By not limiting provocation to the use or threat of force, the court failed to make the jury aware that the word “provoked,” as used in the instruction, did not refer to mere words or conduct without force. Stated another way, the instruction given by the court eliminated the use of non-deadly force in self-defense if there was any provocation by the defendant — no matter how slight or subjective the provocation. By that standard, a mere insult could be deemed sufficient to prohibit defending oneself from an attacker.

In this case, appellant’s self-defense was based on testimony that the victim verbally attacked her and then aggressively approached and swung at her. According to the defense, it was only then that appellant pushed the victim and used some force against her. Because the instruction did not limit provocation to some force or threat of force, the instruction could have misled the jury to believe that appellant’s pointedly asking the victim why she failed to acknowledge her greeting and/or appellant’s racial retorts and obscene gestures were sufficient provocation to preclude appellant from defending herself from an attack by the victim.

It thus appears that the law in Florida is that the defendant loses his self-defense rights on “provocation” grounds only if he is involved in a “forcible felony” orprovokes the target by “force or threat of force.” (Gibbs apparently had no occasion to resolve the separate question of whether purpose to trigger forcible reaction or mere knowledge of a high likelihood of such reaction — or even something less — is required for “provocation.”) And, as Prof. Burke points out, it seems to have beenGibbs that led the trial court to not give the “provocation” instruction. Prof. Burke, a former prosecutor, opines that the denial of the provocation instruction “may have been the moment when Zimmerman got acquitted.”

All this is not a question of stand your ground vs. duty to retreat. The provocation limitation on self-defense rights, to my knowledge, exists in all states; it certainly exists in Florida. Conversely, even states that impose a duty to retreat generally apply the “provocation” limitation only in situations where the defendant had the purpose of triggering a serious attack by the target. There are some decisions, especially in Arkansas and D.C., that read the “provocation” limitation more broadly; but they seem to be the exception.

Provocation is a separate question from the duty to retreat. And if we are to talk about whether Zimmerman should have been convicted on the grounds that he shouldn’t have confronted Martin in the first place, and that he was more generally “looking for trouble” (see Moore and Laney), we should be talking about the provocation limitation and not the Stand Your Ground law.

Legal Times – In Fourth Circuit, a Spotlight on Warrantless GPS Tracking

In Fourth Circuit, a Spotlight on Warrantless GPS Tracking

There’s no dispute that the traffic stop one morning in May 2009 was legitimate. The driver of a Pontiac Grand Prix failed to use a signal before turning into an exit lane to leave Interstate 95 in South Carolina.

The authorities initiated a traffic stop on the exit ramp that morning near Charleston. The passenger, police would later say, was nervous. His arms and legs were shaking, according to court records.

The stop wasn’t random. Local and federal investigators, working on a drug case, secretly were monitoring the movement of the car via a global positioning device—one that had been attached without a warrant.

The passenger, Naarl Richard, who was returning from a trip to New Jersey, was convicted at trial on heroin charges. While awaiting sentencing, the U.S. Supreme Court ruled in U.S. v. Jones that the warrantless installation of a GPS tracking device amounted to a “search” under the Fourth Amendment. (Defendant Antoine Jones’s conviction and life sentence were thrown out.)

Richard won a new trial based on the Supreme Court decision. The second time around, in the summer of 2012, prosecutors weren’t allowed to use the GPS data to explain how the police ended up finding him—and the drugs. He was convicted anyway. Richard is serving a 21-year prison sentence.

The legal fight is now playing out on appeal. A lawyer for Richard on May 17 asked the U.S. Court of Appeals for the Fourth Circuit to overturn the judgment, arguing that the trial judge should have suppressed the drug evidence because it flowed from the illegal use of the GPS device. The audio from the court hearing is here.

The case is important because, for prosecutors and federal agents, there isn’t much guidance among appellate courts on how to handle challenges of warrantless GPS tracking.

Federal trial judges are divided over when the “good faith” exception to the exclusionary rule—concerning when evidence of an unlawful search can be thrown out—should be in play.

One big issue for the appellate court: Did the traffic stop constitute a new and distinct crime such that it, as Richard’s lawyer said, “purged the taint of the government’s illegal use of a GPS tracking device?”

Richard’s lawyer, G. Wells Dickson Jr. of Charleston, S.C., urged the appeals court to set aside the verdict and grant Richard a new trial—with the drug evidence, 1,000 glassine bags of heroin, excluded. (The authorities found the drugs in a false compartment under the center console of the car in which Richard was a passenger.)

“It was a legal stop, with the driver giving consent to search—none of which would have happened if we hadn’t had the GPS,” Dickson said in the Fourth Circuit. “They wouldn’t have been there.”

In court papers in the appeal, Dickson wrote: “If the government’s logic is accepted, then law enforcement could use any illegal method of their choosing to develop leads on the location of a suspect and then follow that suspect until the individual made some minor mistake such as failing to use a turn signal or failing to yield to a yellow light. This would effectively render our Fourth Amendment protections meaningless.”

Nathan Williams, an assistant U.S. attorney in Charleston, told the appellate panel that the police acted in good faith when they installed and monitored the GPS device. The Grand Prix had been stationary for weeks, save for one trip to a laundry.

“The GPS tracker was applied to do what the officers would ordinarily do—without that technology—to determine when the vehicle was going to leave the area to connect with its source,” Williams said in court.

When investigators saw the car leave the state and reach New Jersey—the source of drugs, according to an informant—they moved into position to make a traffic stop. The stop was a pretext. Investigators didn’t know whether they’d find anything illegal in the car, which was driven by Richard’s girlfriend.

After car returned to South Carolina, the authorities followed it. They pulled it over after the driver failed to signal upon entering an exit lane. “Fairly marginal traffic offense,” Williams said in the appeals court.

Williams argued that the panel judges should find the heroin evidence admissible—despite the illegal search—because the police were not acting outside the scope of their authority.

“They were doing what we would want law enforcement to do,” Williams said. “There was certainly no flagrant misconduct.” Officers were following the rules they best they could, he said.

Williams wrote in court papers: “Detectives acted with an objective, good faith belief that their conduct was lawful.”

The Supreme Court’s decision in Jones last year has sweeping consequences for law enforcement investigators. Williams said that, in cases he was handling, GPS devices were shut down after the high court’s ruling.

Williams didn’t specify the number of cases. “Across the country,” he said, “reliance on the use of GPS… was in good faith.”

The appellate court judges didn’t immediately rule after the hearing.

http://legaltimes.typepad.com/blt/2013/05/in-fourth-circuit-a-spotlight-on-warrantless-gps-tracking.html?utm_source=feedly

New York Magazine – Officer Serrano’s Hidden Camera

Officer Serrano’s Hidden Camera

The stop-and-frisk trials of Pedro Serrano: NYPD rat, NYPD hero.

(Photo: Marco Grob)

 

Officer Pedro Serrano walked through the heavy wooden doors of the 40th Precinct in the South Bronx and headed upstairs to the locker room. For eight years he’d been working out of this 89-year-old station house, with its broken fax machines and crummy computers. “We work in a shithole,” the cops there would say, “but it’s our shithole.” Serrano, 43, had the day off—he’d stopped by only to pick up some papers—but when he got close to his locker, he noticed something strange. Someone had placed a dozen rat stickers on the door.

There was a blue rat baring sharp teeth; a red rat curled up tight; another rat posing next to the word dirty. And dangling from his combination lock was a spring-loaded rat trap. A ­minute or two passed before his initial shock subsided. “Now it begins,” he said to himself. “The little game that’s going to start—it’s real now.”

Serrano snapped off the trap so he could open his locker, but he decided the stickers should stay. “I don’t want to let these people think that they won,” he told himself. If this display had been intended to scare Serrano into silence, it had the opposite effect: The sight of all those rats made him even more determined to testify in federal court against the NYPD.

The 4-0—as its officers call it—is one of New York City’s busiest police precincts. Not at all like the 5-0 in the North Bronx, which the 4-0 cops like to deride as the “5-Slow.” Here, there’s nothing unusual about an officer on the day shift getting multiple calls before 9 a.m., including a family dispute that ends with one relative stabbing another. The 4-0 includes Mott Haven, with its thirteen public-housing developments, which means that though the precinct is small in size, it’s packed with people. The cops patrolling the streets here don’t get a lot of passersby saying “Hello” or “Hey, Officer, how are you?” And when responding to a call in the projects, 4-0 cops know to always look up. It’s the only way to avoid getting hit with “airmail”: beer bottles, eggs, ice cubes, canned foods.

Before signing up with the NYPD, Serrano had spent a decade working at the meat market in Hunts Point, doing everything from loading trucks to bookkeeping to management. “Then I got to a certain age and I looked at my life and I was like, I got to do something with it,” he says. “I was making decent money. It was just dead-end.” He also had two young sons to support.

Serrano applied to the NYPD, FDNY, and the Department of ­Correction—places where he thought he’d find more opportunity. In the end, it came down to a choice between being a cop or a jail guard. He polled everyone he knew, and a Correction employee he met at the gym was the most persuasive. “He said, ‘There are plenty of blacks and Hispanics in Corrections,’ ” ­Serrano recalls. “ ‘You need to go into the Police Department.’ ”

Serrano enrolled in the NYPD academy in the summer of 2004. He was old for a rookie—at 34, he’d just made the age cutoff—and in January 2005, he got his first assignment: the 40th Precinct. He had lived in the Bronx since arriving from Puerto Rico when he was a year old. Just two miles separated the 4-0’s station house from the apartment on Fox Street where he’d lived as a child. And it helped that he spoke Spanish; almost three-­quarters of the 4-0’s residents are Latino.

No matter how well he knew the Bronx, leaving the police academy and joining a precinct felt disorienting. “The minute you got out of training—different world,” he says. “Ninety percent of the stuff they taught you did not exist.” At the academy, for example, he’d been told never to target anyone solely because of his skin color. The message seemed unambiguous: “If you racial-profile, you’re going to get fired.”

Once he joined the 4-0, nothing seemed clear-cut. “Every now and then, we would have to be put in a van and hunt, basically. Drive around, and the sergeant or whoever would say: ‘That guy there—write him.’ ‘That guy—write him.’ ”

Cops wrote summonses for all sorts of minor offenses: “unreasonable noise,” “bicycle on sidewalk,” “unlawfully in park after hours.” And when they saw someone they suspected of criminal activity—if they spied a bulge in somebody’s pocket where a gun might be and saw that person touching that spot—they stopped and frisked him. This blitz of activity was part of the NYPD’s “hot spots” strategy: By flooding crime hot spots with cops—and ordering them to give out summonses and perform stop-and-frisks—the NYPD could prevent more serious crimes.

A group of teenagers getting stop-and-frisked, on Seneca Avenue in the Bronx, on their way home from school in September 2012.

(Photo: Pearl Gabel)

 

This was the theory, at least. But from Serrano’s perspective, many of the summonses seemed to make no sense. “This happened to me—they rolled up to this poor Mexican guy sitting on the stairs and said: ‘Write him.’ I’m looking at Sarge, like, ‘What am I writing him for?’ ” The sergeant said, “Blocking pedestrian traffic.”

Later, back at the precinct, Serrano read what exactly constitutes “blocking pedestrian traffic.” “This guy was sitting on the stairs, and there is room for someone to walk by,” he says. “If a person is trying to enter the building and cannot because you’re blocking them, that’s blocking pedestrian traffic. But he was not blocking pedestrian traffic.”

Sure, the guy would only have to pay a small fine, but if he never went to court—if he forgot, or couldn’t scratch together the money, or was an undocumented immigrant afraid to enter a courthouse—the court would put out a warrant for his arrest. And the next time the police stopped him, they’d take him to jail.

Every time Serrano handed out a summons to someone he believed didn’t deserve it, he thought, I can’t do this. I got to do twenty years of this? “It made me feel like crap.”

When he was in junior high school, Pedro Serrano moved into the Bronx’s Little Italy with his mother and three siblings. ­He formed a tight clique with several neighborhood kids, including Little Man Ivan, Freckle-Faced Ivan, and Karate Pete. The shouts of “You spic!”; the kids chasing him on his way to school; the unwritten rule that they couldn’t step inside Ciccarone Park—it was all part of growing up Puerto Rican in this Italian neighborhood. “We needed a group of people to count on just to survive,” he says. “We didn’t belong in the neighborhood, and they made it known.” Looking back on those years, Serrano describes having lived through a “racial war.” And it was a war that Serrano felt he was fighting on two fronts, against the neighborhood kids and the cops.

“The police would stop, come out of the car, frisk us whenever they felt like it,” he says. “You were Hispanic or black in a high-crime location—it happened every day, and you just got used to it. You don’t question it. At first you get upset. But after they hit you or arrest you or summons you, you get to know real quick: Just let them search you and they’ll go away.”

Serrano has lost count of the number of times he was stopped and frisked, but he estimates somewhere between 25 and 50. It happened often enough that the mere sight of an NYPD car pulling up to the curb triggered an almost Pavlovian response: Before the officers had even exited their vehicle, Serrano and his friends would have their hands on the wall. “Back then, it was a way of life,” he says. “It was like waking up and eating breakfast.”

The encounters were brief, maybe only two or three minutes, but their impact was more permanent. “I actually hated the police,” Serrano says, “because of what they did to me.”

The trick to surviving in the NYPD, Serrano decided, was to get assigned to a unit where he could use his discretion. For a while, he thought he’d found that place in a unit known as “Summons Auto,” where he was supposed to stop drivers for offenses like disobeying a no-turn sign or not wearing a seat belt. As he recalls, he was told to give out ten summonses a day, a number he found easy to meet.

“There were so many people doing stuff; I would stop 30 people a day and only give ten summonses,” he says. “The guy who had the cell phone, looked at me, and kept going—I’d pull him over and make sure he gets one … The woman who parked her car, had to drop the baby off at day care, and ran in there and ran out. Why should I give her a summons? I give her a little lecture.”

The more time Serrano had on the job, the more outspoken he became; his fellow officers started calling him a “boss fighter.” And he wasn’t the only one unhappy with how things were changing. Many of the older guys in the 4-0 thought the rookies were being trained wrong. When it comes to street stops, one of Serrano’s former co-workers says, “We can’t just stop everybody. And that’s what they’re teaching the new guys to do: Just stop everybody … Just to get the numbers. That’s it. Doesn’t matter: Just get the numbers.”

Once, when Serrano’s supervisors didn’t think he’d written enough summonses or UF-250s (the form cops are supposed to fill out for every stop-and-frisk), a sergeant put him in a car and drove him around until he found two guys standing by a wall.

 

At left, Pedro Serrano exits the federal courthouse after the day’s proceedings on March 19, 2013; at right, an anti-stop-and-frisk advocate holds a sign that reads MY SKIN COLOR IS NOT A CRIME.

(Photo: Joe Marino/NY Daily News via Getty Images (Serrano); Allison Joyce/Getty Images (Protest))

According to Serrano, the sergeant said, “250 them.” When Serrano resisted the order, the sergeant said, “Summons them.”

“For what?” Serrano asked.

“Blocking pedestrian traffic.”

Serrano did as he was told, but as he took the men’s I.D.’s and wrote their tickets, he told them: “I’m violating your rights, and you should take my name down. If you ever want to sue, you can use me as a witness.”

Serrano and his fellow officers understood why their bosses pressured them to write so many summonses and 250s. As one cop put it, “The more 250s, the better it makes the commanding officer look.” They knew the stress their bosses were under when they went to CompStat meetings, the way they got screamed at by their own superiors when they didn’t have a good answer to the question: “What steps have you taken to address your ­conditions?” (That’s NYPD-speak for “crime conditions.”)

Once a commander returned to the station house, of course, he passed down that pressure to everyone else: to the lieutenants, the sergeants, down to the officers. For every crime hot spot, the precinct commander had to show that he was on top of the situation, that his cops were taking action. He had no way of counting exactly how many crimes he’d prevented—how do you count robberies and shootings before they happen?—but he could offer up the next best thing: high numbers of 250s and summonses.

Long before NYPD officers talked about 250s, the act of an officer stopping a civilian on the street and patting him down was known as a “Terry stop.” In 1968, the Supreme Court ruled in Terry v. Ohio that a police officer could stop and frisk someone on the street even if he had no probable cause to arrest him; all cops needed was “reasonable suspicion” of criminal activity. In New York City, controversy over this police tactic erupted in 1999 after four officers trying to stop a man in the Bronx wound up firing at him 41 times. The killing of 23-year-old Amadou Diallo, an unarmed immigrant from Guinea, transformed stop-and-frisk into a political issue.

In the years that followed, the number of street stops made by NYPD officers grew at an astonishing rate from 97,296 stops a year to 685,724 between 2002 and 2011. (The number dropped last year to 533,042.) Most stops happen in high-crime neighborhoods, places like East New York or Brownsville or Mott Haven. In 2011, 87 percent of the people stopped were African-American or Latino. And in the overwhelming majority of stops—nearly 90 percent of them—police officers didn’t make an arrest or hand out a summons.

Mayor Michael Bloomberg and Police Commissioner Ray Kelly have insisted the policy is part of the reason the NYPD has been able to keep down the crime rate. Kelly recently told The Wall Street Journal, “If you don’t run the risk of being stopped, you start carrying your gun, and you do things that people do with guns.” Critics of the policy insist these street stops amount to racial profiling. Jeffrey Fagan, a Columbia law professor who has studied the NYPD’s numbers for the Center for Constitutional Rights (CCR), criticizes stop-and-frisk’s low “hit rate”—for finding guns or making arrests—pointing to a Supreme Court case in which cops at a checkpoint who stopped motorists at random actually had a higher arrest rate.

Meanwhile, several mayoral candidates have seized on the issue, promising reforms. Christine Quinn, the only Democratic candidate to say she’d continue Kelly’s tenure as police commissioner, has attacked the steep number of stops. “I just don’t believe stops at 700,000 are happening in a constitutionally sound way,” she told Capital New York. “That is a number that has torn police and communities apart.”

In the wake of Diallo’s death, the CCR filed a class-action lawsuit challenging the constitutionality of the stop-and-frisk tactics used by the NYPD’s Street Crimes Unit. The CCR settled that case in 2003. The NYPD agreed to adopt a written policy banning racial profiling and to audit officers to ensure that they stopped people only if they had “reasonable suspicion” and that they documented every stop. In 2008, as the number of stops continued climbing, the same legal organization filed another class-action case: Floyd, et al. v. City of New York, et al. This time, the lead plaintiff was David Floyd, a 34-year-old medical student, who was twice stopped and searched in the Bronx, once in front of his apartment building while trying to help a neighbor who was locked out.

One day in 2009, Officer Serrano clipped a video pen to the front pocket of his uniform. An officer had given it to him, ­suggesting it would protect Serrano on the job if he ever ran into serious trouble with his bosses (he later began using an iPhone). At an overtime roll call on June 30, 2010, he recorded Lieutenant Stacy Barrett telling officers she was “looking for five”—five summonses and/or UF-250s. “St. Mary’s Park, go crazy in there,” Barrett said. The NYPD has long contended that it does not have quotas for how many summonses or 250s a cop is supposed to write, but Serrano believed his recording proved otherwise. One month later, he taped another lieutenant at roll call talking about “five-five-five”—shorthand for five summonses, five 250s, and five “verticals” (sweeps of apartment buildings).

By this time, Serrano knew he wasn’t the only cop secretly taping his superiors. Officer Adrian Schoolcraft had recorded a year and a half of roll calls in Brooklyn’s 81st Precinct; excerpts appeared in The Village Voice in the spring of 2010. That same year, a cop named Adhyl Polanco in the precinct next to Serrano’s, the 41st, went public with recordings he’d made, including one of a roll call in which cops were told to do “one and twenty”—one arrest and twenty summonses—a month.

Serrano followed the officers’ stories in the media and knew how both men had been treated by their bosses after they fought back. Schoolcraft was suspended from his job, but not before officers had gone to his apartment, cuffed him, and hauled him off to the psych ward at Jamaica Hospital, where he was ­confined for six days. Polanco was transferred to the viper Unit in ­Brooklyn and spent his shifts watching video monitors of ­housing projects. No longer allowed to do real police work, he’d become, in NYPD parlance, “a broken toy.”

Serrano didn’t know what he was going to do with his audio files, but the more conversations he recorded, the more hours he spent on his bed at home, headphones pressed to his ears, trying to parse exactly what had been said. He took notes, writing down the timing of anything that seemed especially revealing, and sometimes he’d play a snippet for his wife: “Listen to this! Did you hear what he just said?”

She never seemed too interested. “She’d say, ‘Yeah, I know, I know,’ and just pacify me.” The way he saw it: “My wife doesn’t understand because, for the most part, females are not the ones who get 250-ed.”

When he wanted to talk to someone who he thought would be more supportive, he called his two brothers, both of whom had left the Bronx at a young age to join the Army. “They’ve been through it. They’ve also been 250-ed. They know exactly what the police department does to civilians.”

How do you measure the performance of a cop? It was a question that arose at the end of every year, when it was time for annual evaluations.

Serrano now worked as a patrol officer, driving around on the four-to-midnight shift (known as the 4-12), answering radio calls, responding to ten or more jobs a night. The 4-0 was so busy that he regularly started his shift with jobs already “stacked up”—911 calls that had come in earlier and were still waiting for a response. Depending on the night, he might be cracking down on a drag race on East 132nd Street; trying to break up a fight between inebriated men outside the strip club Sin City; or responding to a call from Lincoln Hospital about a guy who arrived at the ER, bleeding from a bullet wound. Being a patrol officer carried less status than working in a specialized unit, but Serrano liked the job, partly because he was so busy that nobody seemed overly concerned with how many summonses or stop-and-frisks he did.

That changed in late September 2011 when the 4-0 got a new commanding officer, 38-year-old deputy inspector Christopher J. McCormack. His nickname was “Red Rage”—his face would turn crimson when he started hollering—and within the department he was considered to be a rising star. His officers described him as being on the path to making chief one day.

At the end of 2011, Serrano received a three out of five on his annual evaluation, down from a four the prior year. He wasn’t sure why his score dropped, since all the written comments (albeit sprinkled with typos) were positive:

PO Serrano adheres to the ethics of the department and guidelines.

PO Serrano handles sensitive situation with a care and empathy.

PO Serrano is competent police officer that has the ability to be leader.

When Serrano appealed his score, he met with the 4-0’s ­executive officer, Captain Martine Materasso. The meeting lasted no more than five minutes. What was said is a matter of dispute. Serrano says she told him half his score was based on his “enforcement activity”—his number of arrests, 250s, and summonses. For all of 2011, he’d done only five arrests, two summonses, and three 250 forms, fewer than he’d done the year before. Materasso denies talking about specific numbers, later saying, “Did I believe that he was every day out there serving the people of the 4-0 like he should be? I don’t believe he was.”

Serrano disagreed. He answered more than 1,000 radio calls in a typical year. Like the time he responded to a call about an “EDP”—emotionally disturbed person—at an apartment on Trinity Avenue. As he pulled up in front of the building, he saw five children huddled on the second-floor fire escape, screaming about a stranger in their apartment.

Serrano told the oldest girl to drop the ladder, and then he climbed up, squeezed in through the window, and pulled out his Smith & Wesson. He found three more children inside, barricaded in a room, armed with baseball bats. At the front of the apartment, a deranged man screamed and slammed his fists against the locked front door so hard that his knuckles were bleeding.

He reminded Serrano of the Rock—about five-eight, enormous muscles, no neck—and he appeared to be high on PCP. When he heard the crackle of Serrano’s police radio, he spun around. Seeing that he wasn’t armed, Serrano put away his gun and, with three other officers, tackled the man to the floor.

Later, he learned the backstory: The children’s families had been preparing for a party; the adults had gone out to get the food; this guy had stumbled into the wrong apartment and couldn’t figure out how to get out. Minus a few details, it was the sort of crazy incident that could happen any night of the week, would never make the newspapers, and would do nothing to help his numbers.

Serrano and a handful of other officers from the 4-0 began meeting to talk about their jobs, always in restaurants where they could be sure their supervisors wouldn’t walk in. In early 2012, four of them filed affidavits with their union protesting quotas. When their efforts led nowhere, Serrano started ­searching for an attorney. He estimates he spoke to about ten before the day last December when he walked into the Center for Constitutional Rights.

He met with Darius Charney, a lawyer for the CCR, and Jonathan C. Moore, a partner at Beldock Levine & Hoffman, who was working with him. They told Serrano about their lawsuit challenging the NYPD’s use of stop-and-frisk and Moore asked if he would be willing to ­testify. Serrano wasn’t sure. He hadn’t come here ­looking to be a witness in someone else’s lawsuit. But unlike many of his fellow officers, he knew the issue from all sides. He remembered how it felt to be that guy sprawled against the side of a building, and he knew the toll it took on officers to perform so many of these stops. “A piece of you dies when you violate people—your humanity,” he says. Right before the end-of-the-year deadline, the lawyers added his name to the witness list.

On February 22, Serrano showed up at work to discover that somebody had tipped over his locker, tossing the ­contents all over. It was a standard NYPD retaliation move. Another time, ­somebody had flipped the locker of an officer—also with the last name ­Serrano—by mistake and written RAT next to his name on his door, prompting somebody else to scribble next to it: WRONG SERRANO.

Serrano didn’t know who was targeting him, and that was the hardest part. “It could be the friend who’s talking to you, the [union] rep who’s supposed to be ­representing you,” he says.

So he stayed quiet, talking to no one, waiting for others to approach him, ­trying to figure out which co-workers were still his friends. There were several cops who seemed to be acting different, no longer looking him in the eye, but they said nothing. As he later testified, “I felt like I was in a shark tank and had ­multiple stab wounds and I was bleeding and they were circling me.”

After someone left those rat stickers and rat trap on his locker, Serrano decided to retaliate in his own way: He pulled out a marker and drew mustaches on a few of the stickers.

Recently, his supervisors had assigned him to keep watch at the school-bus drivers’ strike, a job usually reserved for less-senior officers. To Serrano, it felt like punishment. He called the NYPD’s Internal Affairs Bureau for help, but that didn’t seem to accomplish anything. The only thing that gave him comfort was knowing that there was another officer one precinct over who understood exactly how he felt.

On March 20, Officer Adhyl Polanco sat on the witness stand in Courtroom 15C at the U.S. District Courthouse in downtown Manhattan. It was day three of the trial of Floyd v. City of New York, and Serrano listened from the audience. “I grew up in Washington Heights; I know what it’s like to grow up in the hood. Basically, that not everybody who lives in a high-crime area is a criminal.” Polanco’s words sounded very familiar.

Despite Serrano’s initial worries about testifying, when he got his turn on the stand later that day, he was surprisingly calm; it felt good to share his experiences in a courtroom packed with lawyers and reporters and spectators. Before, he’d been just another anonymous cop with a stash of secret recordings and piles of typed notes. Now everyone was listening to him.

His testimony stretched over two days. Serrano explained to Judge Shira A. Scheindlin how, in his view, around 2007, the 4-0’s bosses had ratcheted up the pressure, shifting from what he called a “soft quota” to a hard quota, from a suggestion of how many summonses or stop-and-frisks the cops should do—to a number that they had to hit, or else be punished.

“It’s not good to tell cops: ‘Make sure you find it,’ ” he said. “Because if they don’t find it, what’s left? If the bad guy is not there, who is left? The good people. And you got to hammer them.”

The only time he became emotional was when his lawyer asked him why he’d come to testify. “Well, Judge, it’s very simple,” he said. “I have children. I try to be a decent person. You have got to excuse me. Whenever I talk about my kids …” He paused for a moment, trying to blink back tears. “As a Hispanic, walking in the Bronx, I have been stopped many times. It’s not a good feeling. I promised as an officer I would respect everyone to the best of my abilities. I just want to do the right thing. That’s all.”

To bolster their case, the plaintiffs’ lawyers presented evidence Serrano had collected. They played the tape of Lieutenant Barrett telling the cops she was “looking for five” summonses and/or 250s. They flashed on a screen a text message Serrano had received from his sergeant a few months earlier: “U need to do more 250.” And they played a recording Serrano had made of a meeting he’d had with Deputy Inspector McCormack on February 14, 2013.

As precinct commander, McCormack oversaw some 235 officers. Though he’d been at the 4-0 for seventeen months, he’d never met Serrano before this meeting; he recognized the name, but couldn’t remember ever having a conversation with him. The meeting had been set up so Serrano could appeal his latest job evaluation. The conversation, however, focused largely on stop-and-frisk.

The prior year, Serrano recalled stopping five or six people, but the NYPD’s records showed only two 250s. “To stop two people, you know, to only see two things going on, that’s almost like you’re purposely not doing your job at all,” McCormack said.

Serrano tried to defend himself, but McCormack continued, “For the 4-12s in the 4-0, you know, I could see in Central Park maybe that would be fine, but this ain’t Central Park.”

The longer the conversation continued, the more heated both men became.

Serrano: “Mott Haven, full of blacks and Hispanics. Okay … So what am I supposed to do? Is it stop every black and Hispanic?” He repeated the question several times.

McCormack: “This is about stopping the right people, the right place, the right location … Take Mott Haven, where we had the most problems. And the most problems we had there were robberies and grand larcenies.”

Serrano: “And who are those people robbing?”

McCormack: “The problem was, what, male blacks. And I told you at roll call, and I have no problem telling you this: male blacks, 14 to 20, 21.”

In the courtroom, the plaintiffs’ lawyers pointed to McCormack’s line about ­stopping “male blacks, 14 to 20, 21” as ­evidence that the NYPD was racial-­profiling. The next day, a story appeared on the front page of the New YorkTimes, ­presenting Serrano’s tape as something of a smoking gun: “BRONX INSPECTOR, SECRETLY TAPED, SUGGESTS RACE IS A FACTOR IN STOPS.”

The story sparked a skirmish between the Times and the NYPD. One week later, the Times’ public editor wrote a column in which she criticized the paper’s story, saying that it had lacked sufficient context. The NYPD’s spokesman insisted McCormack had been referring to suspects in a specific pattern of crimes—not racial profiling—and referred to Serrano as a “disgruntled, race-baiting cop.”

In the courtroom, when he’d heard the tape of his conversation with ­McCormack, Serrano became enraged all over again. “You can ask me whatever you want, but the one thing you can’t ask me is to go after a specific race,” he said later. ­“Coming from a white man, it pissed me off. It brought me back to being in Little Italy and this racist pressure you can’t control … When he mentioned race, it felt like someone was suffocating me.”

The trial of Floyd v. City of New York continued through the rest of March, all of April, and into May. To refute Serrano’s testimony, the city’s lawyers put six supervisors on the witness stand. Sergeant Stephen Monroe described him as a “mediocre” cop. Sergeant Eduardo Silva said he was your “basic average officer.” Lieutenant Barrett, whom he’d recorded at roll call telling officers she was “looking for five,” insisted this was not a quota but a “performance goal.”

Deputy Inspector McCormack got his turn on the stand on May 13. He disputed Serrano’s claim that he had been punished for not doing enough summonses or stop-and-frisks. When asked whether he set quotas for his officers, McCormack said, “Absolutely, positively not.” Asked why he told Serrano to stop “male blacks 14 to 20, 21,” he explained there had been a rash of robberies in and around the Mott Haven and Patterson housing projects, and that he was referring to “the victims’ statements of who the perpetrators were.”

Considering that the 4-0 is an “extremely violent location”—10,000 crimes reported a year, 123 shootings in the past two years—he said Serrano needed to be much more proactive. “I was very worried that, with his actions, that he was not handling his conditions, and it was not fair to the community.” Though Serrano had increased his numbers of arrests from five to eight between 2011 and 2012, McCormack said that in such a violent precinct, “it’s by far not enough.” He also insisted he only wanted “quality” summonses that address the right “conditions.” “I don’t need numbers for numbers,” McCormack said. “I don’t need old men stopped in parks for minor park violations.”

On the website Thee Rant—formerly known as NYPD Rant—commenters, mostly officers past and present, feasted on Serrano’s testimony.

“You wear a wire, you are a rat. That’s its. [sic] Men that disagree with their boss don’t record them. Fu-cking coward!”

“This guy needs to find his locker in the East River.”

“The Cop is a fat slob do nothing … I hope other Cops avoid him like the plague.”

A few who said they worked with McCormack weighed in, too: “Chris is extremely gung ho, they don’t call him Red Rage for nothing … He genuinely believes he is doing God’s work out there. When I was a crime sergeant he would go out with us at least three times a week and would always be the first one to jump out of the car to toss someone. He hates perps. The other thing he hates is laziness. He will do anything for people who work. He will also f*ck with people who refuse to work. And that’s what this is all about.”

There were also those commenters who agreed with Serrano. One wrote: “99 ­percent of 250s are utterly useless … Stopping the wrong people just leads to hostility between the PD and the people.” Another commenter wrote: “Sadly many cops don’t understand what a legit legal SQF [stop, question, and frisk] is and think what they are doing is legal police work. Bosses like McCormack want to keep it that way so cops keep writing … McCormack could have explained during the recording after being asked a half a dozen different ways who the ‘right people’ were. He could have simply said, ‘people that you have reasonable suspicion that they committed a crime or are about to commit one.’ Of course he didn’t say that because if his cops actually followed that legalstandard his SQF numbers would take a nose dive.”

The trial’s closing arguments are scheduled for May 20, but both sides will have to wait for Judge Scheindlin’s decision, and no date has been set for when she’ll hand it down. Depending on what she decides, the NYPD could find itself answering to an independent court-appointed monitor charged with overseeing the reform of stop-and-frisk—an outcome both the police commissioner and mayor have been aggressively fighting.

Back at work at the 40th Precinct, Serrano felt as if his head were on a swivel; he was hyperaware of everything, watching everybody closely, trying to read everyone’s expressions. After he finished testifying, he had traveled straight from the courthouse back to the station house to sign out for the day. The moment McCormack saw him, he recalls, he started hollering: “Make sure you sign out! Yesterday you didn’t sign out!” When Serrano tried to explain that he actually had signed out the day before, he says, McCormack just walked away.

As for his fellow cops at the 4-0, Serrano discovered that they fell into three camps. One third supported him (“They were like: ‘We get it, no problem’ ”); another third were furious (“They think what I did is wrong”); and the rest were neutral (“They were like, ‘We don’t care either way; we just don’t like the bad stuff that’s coming because he’s pissed off now’ ”).

Serrano had expected the anger and hostility. What surprised him was how many cops went out of their way to speak to him. Not just friends but even officers he didn’t get along with, and a few supervisors, too. “Every time I was by myself, people would approach me and tell me the same thing: ‘Listen, I can’t shake your hand, man, but good job.’ ”

After he testified and his name appeared in the press, he began receiving calls from cops in other precincts asking for advice. They told him they also had recordings of their bosses, and they wanted help figuring out how to step forward with their own allegations. Serrano began meeting with these cops in out-of-the-way diners. “I told them what to do, how to do it,” he says. “We support each other. Any time they want they call me. We text. We vent.”

On April 14, 24 days after his testimony ended, Serrano learned that he’d been transferred. He was assigned to a precinct in Manhattan North and put on the midnight shift. He knew he should not have been surprised, but he was. He also knew this was a better outcome than many ­others; at least they hadn’t sent him to Far Rockaway or Staten Island, where his commute would be two hours. And there didn’t seem to be nearly as much pressure to summons or stop and frisk people in his new precinct. “It’s just a different world,” he said.

One morning not too long ago, Serrano drove through the streets of the 4-0 on his day off, wearing jeans and sunglasses, a deodorant tree hanging from his rearview mirror, baby car seat in the back. (Fifteen months earlier, his wife had had a baby girl.) On a sidewalk ahead, Serrano spotted two former co-workers standing watch.

“What’s up gentlemen?” he shouted. “Working hard?”

The officers went over to his window. “Coming back to work?” one asked.

“I miss you guys,” Serrano said.

Nobody mentioned the trial or Serrano’s testimony. Instead, the two officers told Serrano how McCormack had just come by and screamed at them. They even sounded slightly envious talking to Serrano about his transfer.

Serrano understood, but he had already discovered a downside to his new precinct: The officers there didn’t seem nearly as tight-knit as the cops at the 4-0, maybe because their jobs weren’t as tough.

“My family is gone, man,” Serrano said. “I don’t know anybody.”

“You get to be home all day and see your kids,” one officer said.

“I’m good with that,” Serrano said. “But I miss my family.”

His former co-workers guffawed, then bid him good-bye, everyone slapping palms. But as Serrano began to drive away, he turned back one last time. “C’mon!” he shouted, leaning out the ­window. “I still love y’all!”

Officer Serrano’s Hidden Camera http://nymag.com/news/features/pedro-serrano-2013-5/ via @sharethis

Lawyers look to Alabama Supreme Court on juvenile killer sentences after legislature fails to act

By Kent Faulk | kfaulk@al.com 
May 21, 2013 at 6:13 PM

BIRMINGHAM, Alabama – How Alabama judges will handle the sentencing of juveniles convicted of capital murder – for at least the immediate future — now appears to be in the hands of the Alabama Supreme Court after the Alabama Legislature failed to enact a bill addressing the issue.

A bill had been pending in the state legislature to address a U.S. Supreme Court ruling in Miller v. Alabama last June that bars automatic no-parole sentences for juvenile killers. The session ended Monday with no final action on the bill.

“We were very disappointed that the legislature didn’t act,” said Wendell Sheffield, the attorney for one of the teens awaiting trial on capital murder charges in the deaths of five people at a house in Ensley. “We have an act that’s unconstitutional. We have a client who is in jail on a no-bond.”

Sheffield is among several attorneys who have asked local circuit judges to toss out the capital murder indictments against their teen clients after the U.S. Supreme Court ruling.

Those teens include:

 Rashad Stoves (Sheffield’s client), one of three teens indicted on capital murder charges in the January 2012 shooting deaths of five men at a house in the Ensley Highlands neighborhood of Birmingham. Stoves was 17 at the time of the shooting.

– Larry Henderson was indicted on a capital murder charge in the June 6, 2010, shooting death of Alex Rogers, 69, after a dispute in Ensley. Henderson was 16 years old at the time of the shooting. Another man, Detrick McGee, also was charged in Rogers’ death but McGee was 18 at the time of that shooting.

– Andrew Amison, was 17 when Mobile police arrested him on allegations that he participated in the robbery and killing of Sam Richardson inside in Main Street Barbershop on Nov. 22, 2011. Last month Amison’s attorney asked Mobile County Circuit Judge Robert Smith to throw out the capital murder charge.

Judges denied the requests in the Stoves and Henderson cases. In March Sheffield and Donald Colee, who represents Henderson, argued their appeals to the Alabama Supreme Court.

The Alabama Supreme Court had not ruled in the appeal as of today in the Stoves and Henderson appeals. “I think everybody was thinking they (Supreme Court justices) were waiting on the legislature” to address the issue first, Sheffield said.

“We are definitely looking for some action on their (Alabama Supreme Court) part,” Sheffield said. “Everybody’s in limbo.”

The U.S. Supreme Court in 2005 had ruled that juveniles cannot face the death penalty. Since then when juveniles in Alabama have been convicted of capital murder, they have automatically been sentenced to life without the possibility of parole _ the only other option remaining under Alabama’s capital punishment law.

But in last year’s ruling the U.S. Supreme Court said that judges must have options to sentence juveniles to something other than life without the possibility of parole.

Many attorneys and judges believed the Alabama Legislature would enact a bill that would deal with the issue. The bill introduced in the 2013 state legislative session, which ended Monday, called for giving judges the option of sentencing a juvenile convicted of capital murder to life, with one shot at parole after 40 years.

State Sen. Cam Ward, R-Alabaster, who had sponsored the bill in the Alabama Senate, stated in an email this afternoon that the reason the bill didn’t pass was mainly because it got caught up “in the procedural log jam of the last day.”

“Also, you had some people who wanted to make it 70 years instead of 40 which in my opinion would have been unconstitutional,” Ward stated.

Sheffield said that if the Alabama Supreme Court were to grant their appeal in the quest to have the capital murder indictment tossed out, he believes the state prosecutors would move “very, very, quickly” to charge Stoves with murder.

If the Alabama Supreme Court were to rule against them, however, it would basically leave the question in place about what state judges can do in sentencing teens convicted of capital murder, Sheffield said. If that happened, they would continue the appeal, he said.

“We’re not going to let this drop,” Sheffield said.

If the bill had been approved, Sheffield said they would have challenged it anyway. One shot at parole after 40 years only gave “lip service, not substance” to the U.S.

“I think courts in this jurisdiction need direction from the Supreme Court of Alabama in how they need to proceed,” Sheffield said.

Tommy Nail, the presiding Jefferson County Circuit Court criminal judge, said today that the judges and lawyers are “left to our own devices” and will have wait until the Alabama Supreme Court renders a decision.

New York Times Editorial on the Brady Rule

The New York Times

The New York Time’s Editorial Board advocates laws that require open file policies in felony criminal cases.