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Supreme Court Strikes Down Florida’s Way Of Imposing Death Sentences

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — The Supreme Court on Tuesday struck down Florida’s death-penalty practice, concluding that the state’s unique system, which combines a jury’s non-unanimous recommendation with a trial judge’s final decision, violates the Constitution’s Sixth Amendment.

In an 8-1 decision that united liberal and conservative justices, the court bluntly overturned several past opinions that had upheld Florida’s system.

“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death,” Justice Sonia Sotomayor wrote. “A jury’s mere recommendation is not enough.”

The court’s 10-page ruling is a victory for death-row inmate Timothy Lee Hurst and a direct challenge to Florida state lawmakers, who will probably have to rewrite the rules in order to fully preserve capital punishment.

The fate of the 37-year-old Hurst may still be fought out in lower courts, as state-level judges next decide whether the legal error in his case was harmless.

It was unclear how the ruling would immediately affect the 400 inmates facing the death penalty in Florida, though a number of similar challenges might be forthcoming.

“If Florida, like other states, had required a binding, unanimous jury verdict before a death sentence could be returned, it would have imposed 70 percent fewer death sentences over the last five years,” said Nan Aron, president of the liberal Alliance for Justice.

Whitney Ray, director of media relations for Florida Attorney General Pam Bondi, said in an email Tuesday afternoon that “we are reviewing the ruling.”

Nationwide, Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, predicted that the decision “represents another step on the inevitable road toward ending the death penalty” because of jurors’ decreasing willingness to impose death.

Only 49 death sentences were imposed last year, down from 315 in 1996, according to the Death Penalty Information Center.

The decision issued Tuesday morning capped a case that began May 2, 1998, when a murder and robbery occurred at a Popeye’s restaurant in Pensacola. Cynthia Harrison, a young assistant manager, was found bound; she’d been stabbed 60 times on her face, neck, back and arms.

Nineteen years old at the time of the murder, Hurst has consistently professed his innocence. His defense attorneys also have argued he was psychologically damaged from childhood and has below-average mental capacity.

Under Florida law, a death sentence requires the finding of at least one aggravating circumstance; for instance, that the killing occurred during the course of another felony, or was particularly heinous.

The jury makes a nonbinding recommendation of life or death, after weighing both aggravating and mitigating circumstances. The jury, though, does not have to spell out the factual basis for its recommendation. The judge makes the final sentencing decision, giving “great weight” to the jury’s recommendation.

The jury in Hurst’s case recommended a death sentence by 7-5. The trial judge, on her own, made the formal findings concerning aggravating circumstances that are necessary to justify the death penalty.

“The Sixth Amendment protects a defendant’s right to an impartial jury,” Sotomayor wrote. “This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfinding.”

Joel Hirschhorn, a criminal defense attorney with the Miami-based firm Gray Robinson, said Tuesday that the state’s death-row inmates must now “hurry and wait for the Florida Supreme Court to apply the new rule of law or wait for the Florida Legislature to act.”

In 27 of the 31 states that maintain the death penalty, the jury makes the final decision whether to impose the death penalty. Only Florida, Alabama, Delaware and Montana leave the final sentencing decision up to the trial judge.

©2016 McClatchy Washington Bureau. Distributed by Tribune Content Agency, LLC.

Photo: Justice Sonia Sotomayor of the Supreme Court. Commonwealth Club via Flickr

 

Women Share Abortion Stories With Supreme Court Justices

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — Claudia Polsky, a Harvard graduate who directs an environmental clinic at the University of California Berkeley School of Law, had an abortion.

So did Amy Oppenheimer, a former California administrative law judge. Decades ago, while studying at Stanford, Dr. Carol McCleary, too, had an abortion.

And now, in an unusually personal move, th

“Carol has no regrets about her decision to have an abortion,” attorney Michael Dell wrote in a new brief, referring to McCleary. “She cannot imagine having her current career in neuropsychology, or marrying her husband and having their children together, had she been forced to have a child as an undergraduate.”

McCleary, now director of neuropsychology at the University of Southern California’s Keck School of Medicine, joined actress Amy Brenneman and eight other women in revealing their abortions as part of the brief prepared by Dell and the firm Kramer Levin Naftalis & Frankel.

Polsky and Oppenheimer were among 113 women who put their names on a like-minded brief prepared by attorney Allan J. Arffa and the firm Paul, Weiss, Rifkind, Wharton & Garrison.

“I joined the brief, and recruited a number of other women lawyers to join, because reproductive rights are at a crisis point in the United States,” Polsky explained in an email.

Both amicus briefs seek, among other goals, to put sympathetic human faces on the abortion access question now looming before the high court in the case called Whole Woman’s Health v. Cole.

In particular, the latest briefs may be tuned to the frequency of Justice Anthony Kennedy, a swing vote on the nine-member court populated by five Republican appointees and four Democratic appointees.

“It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” Kennedy wrote in a 2007 decision.

The case, to be heard March 2, tests a 2013 Texas law that requires abortion clinics to meet the same standards as surgical centers, and requires doctors performing abortions to have admitting privileges at a hospital within 30 miles.

Underscoring the stakes, 45 amicus briefs were filed this week with the Supreme Court opposing the state law. That’s a significantly higher-than-average number, and they include filings from the states of California and Washington as well as cities such as San Francisco and 163 members of Congress.

“I would love it if all women in elected office who have had abortions would so state during relevant debates, because I think this would substantially change the legislative conversation,” Polsky said.

Some already have.

During House debate in 2011 over Planned Parenthood funding, Rep. Jackie Speier, D-Calif., cited her own health-related abortion. Former Texas state Sen. Wendy Davis joined former Seattle City Councilwoman Judy Nicastro in a brief this week recounting their abortions.

Others are newer to the spotlight.

Oppenheimer, now working as an attorney in Berkeley, said Wednesday that she had not been public about her abortion before joining the amicus brief, nor had she discussed it with her two adopted children.

“I am amazed that as a society we have come to a place where people feel a need to be more secretive about having had an abortion than about sexual orientation,” Oppenheimer said in an email. “I don’t think it benefits our society for people to feel a need to be secretive about either.”

Supporters of the Texas law will get their turn, as well, when their amicus briefs are due in several weeks. These will include personal accounts from women who have come to regret their past abortion decisions.

“Our goal is to now collect a hail storm of declarations (to) show the court the size of the problem caused by abortion and how it hurts women,” the conservative Justice Foundation says on its Operation Outcry website.

Any of the personal stories, whatever their intended moral, are probably unlikely to change the minds of the four justices most fervently opposed to abortion or the four considered most sympathetic to a woman’s right to choose.

The 79-year-old Kennedy, though, has had a foot in both camps, and many advocates are courting him in a case that revolves, personal experiences aside, around whether Texas has imposed an “undue burden” on women’s access to abortion.

More than 40 Texas clinics were providing abortions in 2012, prior to the law. The number of clinics subsequently dropped by nearly half and, according to Whole Woman’s Health, the law if given full effect “would eliminate more than three-quarters of Texas’s abortion facilities and limit the capacity of the remaining few.”

(c)2016 McClatchy Washington Bureau. Distributed by Tribune Content Agency, LLC.

Photo: Alisa Ryan via Flickr

Supreme Court Upholds Use Of Death Penalty Drug

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — A bitterly divided Supreme Court on Monday upheld a drug combination used by Oklahoma to execute death row inmates.

In the most closely watched capital punishment case of the court’s term, and one that provoked strong feelings from both sides, a conservative 5-4 majority rejected a challenge to the sedative midazolam.

“The prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims,” Justice Samuel Alito Jr. wrote.

The case called Glossip v. Gross is the Supreme Court’s first substantive death penalty decision since a 2008 decision that upheld Kentucky’s use of a lethal three-drug cocktail for executions. It brought to the fore intense emotions in a highly unusual scene, as four different justices read parts of their opinions from the bench.

“Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution,” Justice Stephen Breyer declared in one of several dissenting opinions.

The decision came on the last day of the court’s term, when justices also upheld an Arizona redistricting commission and struck down EPA clean air rules.

The court’s new death penalty ruling comes about 14 months after Oklahoma’s execution of convicted murderer Clayton Lockett went horribly awry. Lockett writhed in apparent agony and remained alive for 43 minutes after being injected with an untested combination of chemicals.

The decision issued Monday, on the last day of the court’s 2014-15 term, did not judge the death penalty itself. In a 1976 decision, the Supreme Court ruled capital punishment did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Since then, 1,410 U.S. inmates have been executed, according to the Death Penalty Information Center.

Instead, the new decision centered on the specific drugs used in lethal injection.

The court previously concluded in the 2008 Kentucky case that only measures that present a “substantial” or “objectively intolerable” risk of serious additional harm violate the Eighth Amendment.

In the botched Locket execution, Oklahoma used the sedative midazolam, along with pancuronium bromide, to paralyze the inmate, and potassium chloride to stop the heart. Midazolam was a substitute. American manufacturers stopped making sodium thiopental, the sedative at issue in the 2008 Kentucky case, and European manufacturers will not export it.

Other states, including Florida and Arizona, also used midazolam in lethal-injection executions last year. Florida Attorney General Pamela Jo Bondi filed a brief supporting Oklahoma’s position, as did the attorneys general for other states including Idaho, Texas, and Georgia.

Still other states have adopted new execution protocols as an alternative to lethal injection, with the Utah Legislature in March approving use of firing squads as a backup method.

The ruling Monday came too late for one of the four inmates named in the original Oklahoma petition, Charles Warner, was executed last January. Warner was convicted of raping and killing an 11-month-old child.

The other three inmates, Richard E. Glossip, John M. Grant, and Benjamin R. Cole, are still awaiting execution. Glossip, whose name is first on the petition, was convicted in 1998 of first-degree murder. He maintains his innocence.

(c)2015 McClatchy Washington Bureau. Distributed by Tribune Content Agency, LLC.

Some School Food Program Recipients Ineligible, Audit Finds

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — School districts in California, Florida, and Texas are providing free or low-cost meals to ineligible students, Agriculture Department auditors warn in a new report.

The failures cost taxpayers millions of dollars in benefits provided to children from households whose income was later found to be excessive or unsupported, auditors say. With 97 percent of the assisted households not double checked at all, the full cost is unknown.

Auditors suggest it might be time to require more proof of poverty from families applying for free or low-cost meals.

“The act of turning in income documentation with applications may discourage applicants from being dishonest about household income levels,” the Agriculture Department’s Office of Inspector General noted in the report made public this week.

But while USDA officials acknowledge the room for improvement and say they have the legal authority to require income documentation, they also resist imposing new application barriers.

“Significant other legal, policy, and operational concerns remain,” the department’s Food and Nutrition Service stated.

Requiring applicants for free or low-cost meals to submit proof of income “could create barriers to participation for eligible children (and) cause significant administrative and record-keeping burden for participating schools,” the agency stated.

Elyse Homel Vitale, a nutrition policy specialist with California Food Policy Advocates, added in an interview Wednesday that the most “administratively efficient” means of checking applicants is “direct certification.” Instead of requiring separate applications and documentation, families already found eligible for other federal food or cash assistance programs are automatically enrolled in school meals.

“Having schools take additional steps to verify eligibility may not be the best use of their resources,” Vitale said.

The National School Lunch Program operates in more than 100,000 schools and institutions nationwide; the newer School Breakfast Program serves somewhat fewer. Upward of 31 million children eat free or low-cost meals every day, at an annual cost of some $15 billion.

Texas and California lead the nation in participation, with 3.3 million and 3.2 million children, respectively, served under the school lunch program. In Florida, 1.6 million children benefited last year.

Within each state, some regions in particular rely on the federal aid. In California’s San Joaquin Valley, as many as 78 percent of schoolchildren in certain counties are eligible for the free or low-cost meals. In Harris County, Texas, which includes Houston, more than half a million children participate.

Auditors examined school regions authorized to operate nutrition programs that included 17 schools each in California and Texas and 26 schools in Florida. The individual districts and schools were not named. Schools were also examined in Delaware, Rhode Island, and Wyoming, where participation rates are much lower.

Children from families with incomes at or below 130 percent of the poverty level are eligible for free meals, while those at or below 185 percent of the poverty level can get reduced-price meals. Currently, families can simply attest to their income and need not show proof. Districts, in turn, must take small samples to verify eligibility.

Often, there are errors. A separate study released by the Food and Nutrition Service this week found that roughly ten percent of school lunch or breakfast program payments were improper, a combination of underpayments and, mostly, overpayments amounting to about $1.5 billion.

“Reducing errors in our school meal programs is a top priority for USDA,” Kevin Concannon, undersecretary for food, nutrition, and consumer services, said in a statement.

The Office of Inspector General auditors noted that in one large, unnamed California district, 886 out of 1,020 sampled households turned out to be ineligible for the level of meal aid received.

“Based on these results, we conclude that it is likely that other students receiving free or reduced-price meals may not be eligible for them,” auditors stated.

In Texas, auditors found a district where 796 out of 1,198 sampled households didn’t respond to a request for documents. In Florida, auditors found a woman who had submitted a pay stub indicating she was married, even though her meal application said she was single.

“FNS is at risk for improper payments because there is no assurance that household self-reported income is accurate,” auditors cautioned.

Photo: U.S. Department of Agriculture via Flickr

House Passes Water Bill, But Drought Solutions Still Under Debate

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — The House on Friday passed a big energy and water spending bill that showcases the continuing federal discord over how to handle California’s drought.

The $35 billion bill includes money for the California status quo, ranging from Sacramento-San Joaquin Delta restoration to operations of the sprawling Central Valley Project. It also includes drought-related language, with directives to speed completion of water storage project studies.

The bill, approved by a largely party line 240-177 margin, does not, however, reflect significant consensus on some key California water disputes, nor does it come close to the comprehensive drought bill that has so far eluded lawmakers.

“The president has declared the drought to be a national disaster,” said Rep. Sam Farr, D-Calif. “Unfortunately, we have not invested sufficiently in addressing that disaster.”

Farr, a liberal member of the House Appropriations Committee from which the Fiscal 2016 funding bill arose, joined most Democrats in voting against the energy and water package.

Three of the 10 Democrats who supported the bill represent Central Valley districts where either drought or flood control issues are paramount: Reps. Jim Costa, Doris Matsui and Ami Bera.

Republicans overwhelmingly supported the legislation, though they acknowledged its shortcomings.

“I think there are some good things in the bill,” said Rep. Jeff Denham, R-Calif., “but there’s a lot more that we can do.”

Denham noted “we are having continuous meetings” on drafting a separate California water bill, following the inability of lawmakers to resolve their differences last year. In early April, the new chairwoman of the Senate Energy and Natural Resources Committee, Sen. Lisa Murkowski, R-Alaska, attended a fundraiser in Fresno and took her first, brief tour of the drought-affected area.

“We need to be able to explain to the other 49 states why California is in such a tight situation with water, and what we can do to fix it ourselves,” Denham said, adding that lawmakers are trying to decide how to move the legislation.

Some provisions in the House energy and water bill approved Friday range far afield, such as a so-called legislative “rider” allowing guns to be carried on all Corps of Engineers’ lands. Citing the politically divisive firearms policy, among other reasons, the White House issued a veto threat against the legislation.

Other provisions target California specifically, though their future is uncertain.

One measure added in the House Appropriations Committee by Rep. David Valadao, R-Calif., sets specific deadlines for federal officials to complete water storage project feasibility studies.

Under the bill, studies of a Shasta Dam expansion in Northern California and Temperance Flat dam construction east of Fresno will be due Dec. 31. Studies of expanding Los Vaqueros Reservoir in Contra Costa County and constructing Sites Reservoir in the Sacramento Valley will be due Nov. 30, 2016. A study of expanding San Luis Reservoir near Los Banos must be finished by Dec. 31, 2017.

(c)2015 McClatchy Washington Bureau, Distributed by Tribune Content Agency, LLC.

Photo: docentjoyce via Flickr

Supreme Court Endorses Ban On Judges Seeking Campaign Cash

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — A divided Supreme Court on Wednesday upheld Florida’s ban on judicial candidates directly soliciting campaign funds.

In a ruling that affects many of the 39 states where voters elect trial or appellate judges, the high court concluded that the direct-solicitation ban does not violate the First Amendment’s free-speech guarantee.

“A state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office,” Chief Justice John Roberts Jr. wrote for the majority. “A state may assure its people that judges will apply the law without fear or favor.”

The ruling split the court along somewhat unusual lines, as Roberts’ fellow conservatives Antonin Scalia, Samuel Alito, and Clarence Thomas dissented, as did frequent swing vote Anthony Kennedy. Two liberal justices, Stephen Breyer and Ruth Bader Ginsburg, largely sided with Roberts’ conclusion, but broke from part of his reasoning.

The court’s bottom line in the case called Williams-Yulee v. Florida Bar, though, is a victory for judicial campaign fundraising limits. Coming from the conservative-dominated court, the ruling is also a notable good day for the frequently embattled advocates of campaign finance reform.

“Most states with elected judges have determined that drawing a line between personal solicitation by candidates and solicitation by committees is necessary to preserve public confidence in the integrity of the judiciary,” Roberts wrote. “These considered judgments deserve our respect.”

The case arose from Lanell Williams-Yulee’s bid for a seat as a county court judge in Hillsborough County, Florida. The county includes the city of Tampa. During her campaign kickoff in September 2009, Williams-Yulee signed a mass-mailed letter that asked for contributions, with recommended amounts ranging from $25 to $500.

Incumbent Judge Dick Greco, Jr., easily defeated Williams-Yulee in the August 2010 balloting, winning 80 percent to 20 percent. Williams-Yulee subsequently lost a later three-way judicial race in 2012.

The Florida Bar filed a complaint against Williams-Yulee, alleging she had violated a provision in the state’s Code of Judicial Conduct. The code states that “a candidate…for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.”

According to the American Bar Association, 30 of the 39 states that elect trial or appellate judges have adopted similar restrictions. These other states include Idaho, Mississippi, and Pennsylvania.

Williams-Yulee received a public reprimand and was ordered to pay $1,860.30 to cover costs. She and her allies argued the punishment intruded on her ability to speak, including on matters of pressing public importance.

“Neither the court nor the state identifies the slightest evidence that banning requests for contributions will substantially improve public trust in judges,” Scalia wrote in dissent.

American Constitution Society for Law and Policy President Caroline Fredrickson countered with a statement Wednesday that praised the decision as recognizing “the corrosive effect money has had in judicial elections,” and as one that will “help stem the trend of politicization that has been occurring in the state courts.”

The liberal organization is one of several that have studied the growing role of big money in state-level judicial elections. Between 1990 and 1999, judicial candidates raised approximately $83.3 million. Judicial candidates then raised $206.9 million over the next 10 years, Emory University Law School Professor Joanna M. Shepherd reported in the Duke Law Journal.

“One of the biggest problems we have in the country today is the impact of money on politics, and the trend of special interest groups pouring money into efforts to defeat or elect judges” Tallahassee-based attorney Barry Richard, who represented the Florida Bar in the case, said in an interview Wednesday.
Richard added that it was a “great relief” to learn that the Florida rule will survive; otherwise, he said, “the door would be open” to more problematic judicial fundraising.

Photo: Boston Public Library via Flickr

U.S. Blocks Settlement Between Lance Armstrong, Ex-Teammate Landis

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — Uncle Sam has now further complicated the high-stakes grudge match between disgraced bicyclist Lance Armstrong and his former teammate, Floyd Landis.

In a twist that even a federal judge admitted “might seem unfair,” the Justice Department has succeeded in blocking a settlement totaling $600,000 that Landis reached with Armstrong’s business associates. The department did not explain its objections to settling a case it previously declined to enter.

“Fairly or not, withholding of consent requires no explanation,” U.S. District Judge Christopher R. Cooper wrote in a decision Thursday.

Cooper’s decision is the latest, but not the final, turn of the wheel in the dispute pitting Landis against Armstrong, an Austin, Texas, resident who forfeited his seven Tour de France titles following revelations that he cheated by using banned substances.

Landis, whose own blood-doping eventually caused him to forfeit his 2006 Tour de France title, sued Armstrong and various associates in 2010. Originally filed under seal, Landis’ false-claims lawsuit became public when the Justice Department entered it, in part, in 2013.

The Justice Department joined Landis in targeting Armstrong personally, reasoning that the U.S. Postal Service had been duped when it spent more than $30 million sponsoring Armstrong’s racing team. False Claims Act lawsuits like this can potentially triple the damages owed, with Landis, as the original whistleblower, entitled to a cut.

The Justice Department, though, did not ally itself with the part of Landis’ lawsuit targeting Armstrong’s longtime agent Bill Stapleton, longtime business partner Barton Knaggs, and their Austin-based company, Capital Sports and Entertainment.

Last December, Stapleton and Knaggs agreed to a settlement that would include a $500,000 payment, as well as $100,000 in attorneys fees, to Landis. On February 20, in a brief legal filing, Justice Department attorneys declared they were “not in a position to consent to the settlement at this time.”

Cooper, appointed to the bench by President Barack Obama, said he had little choice but to side with the Justice Department, despite the vexing result.

“While it might seem counterintuitive that the government can effectively veto a settlement of claims it has chosen not to join, the False Claims Act itself and the majority of circuits that have addressed the question say otherwise,” Cooper stated.

Citing a 2000 decision involving a case brought against some Lexington, Kentucky-area health clinics, Cooper added that “the power to veto a privately negotiated settlement of public claims is a critical aspect of the government’s ability to protect the public interest.”

In a legal filing last month, attorneys for Stapleton and Knaggs complained that the Justice Department’s effective veto keeps everyone in a costly “litigation limbo.” Underscoring the work involved, the attorneys noted that “up to 130 depositions” will have to be taken as parties prepare for a possible trial.

“The government impermissibly seeks to replace the (private) settlement with a settlement of its own making, negotiated from a position of absolute power,” wrote the attorneys, Marc S. Harris and John P. Pierce.

Tactically, though, the Justice Department’s move may put pressure on Armstrong to settle on terms more favorable to the government. Previous media reports, citing anonymous sources, have suggested the parties remain millions of dollars apart.

Photo: Tom Raftery via Flickr

Obama, School Officials Talk Education Goals

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — President Barack Obama on Monday found an ally in Fresno Unified School District Superintendent Michael Hanson.

During an hourlong meeting, Obama pitched his education priorities to Hanson and other superintendents. For the school leaders and administration officials now facing some high-stakes legislative struggles, the White House session came at a key time.

“We were reinforcing to him the importance of his continued support,” Hanson said, adding that Obama’s “articulated vision for what goes on in public schools gives us the room to do this very difficult work.”

Hanson is a member of the executive committee of the Council of Great City Schools, which represents 67 districts serving cities that include Sacramento, San Francisco and Los Angeles.

The late morning meeting in the White House’s Roosevelt Room came as part of the Council’s annual legislative conference, a four-day program that features speeches, receptions and briefings. Politically, the timing was apt, as the Republican-controlled Congress and the Democratic White House are now maneuvering for position across several fronts.

“This is a pretty polarized city,” Hanson said, standing on the driveway outside the West Wing of the White House. “You can feel it when you come here.”

This week, the polarization will intensify when House and Senate budget committees unveil budget resolutions that spell out Republican priorities on everything from education to defense. The House committee members include Rep. Tom McClintock (R-CA), a staunch conservative whose district stretches from Fresno County in the south to Amador County in the north.

Separately, House GOP leaders have been struggling to pass a bill reauthorizing the Elementary and Secondary Education Act. The bill, dubbed the No Child Left Behind Act during the George W. Bush administration, has roiled conservatives critical of the federal government’s role in education, but it has also worried educators who fear funds will be diverted away from the neediest.

After failing to rally a majority on Feb. 27, Republican leaders pulled the bill from the House floor and have not yet rescheduled a vote. The Obama administration has warned that the president would veto the bill, now renamed the Student Success Act.

“We are making too much progress now in terms of graduation rates, improved reading scores, improved math scores, increasing standards, increasing access to the resources the kids need for us to be going backwards now,” Obama said after the meeting with superintendents.

Nationwide, high school graduation rates for African-American, Hispanic and Native American students have increased during the past two years, Education Department records released Monday show. The nation’s overall high school graduation rate reached a record 81.4 percent during the 2012-13 school year.

The Fresno district’s graduation rate of about 76 percent during that school year was somewhat lower than the national average. The other superintendents who met with Obama on Monday, serving cities like Kansas City, Mo., San Francisco and Washington, D.C., struggle with similar challenges.

“The students they work with are largely poor, and they’re largely people of color,” Education Secretary Arne Duncan said.

One specific sticking point between congressional Republicans and the White House involves the distribution of Title I funds, designed to help districts serve low-income students. The Fresno Unified School District relies heavily on the funds and currently receives about $46 million annually through Title I.

The stalled House bill revises the funding through an idea called “portability,” which would attach dollars to individual students rather than to the district as a whole. If the student moved, the old district would lose the money.

Republican supporters say portability promotes parental choice and ensures all low-income students receive their fair share of federal dollars. Skeptics don’t buy it; by Obama administration estimates, the Fresno district would lose upward of $4.9 million.

“A raid on those Title I dollars,” Hanson said, “would be a significant problem.”

Photo: U.S. President Barack Obama meets with the Council of the Great City Schools Leadership in the Roosevelt Room of the White House March 16, 2015 in Washington, D.C. The purpose of the meeting is to discuss efforts to strengthen educational opportunities for students in city schools. (Olivier Douliery/Abaca Press/TNS)

A Flurry Of Briefs As Supreme Court’s Same-Sex Marriage Case Looms

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — Many friends descended upon the Supreme Court Friday, some more welcome than others.

In a concerted show of force, same-sex marriage supporters delivered more than 70 amicus curiae briefs urging the court to find that the Constitution prohibits states from limiting marriage to that between a man and a woman.

Also known popularly as friend-of-the-court briefs, the green-covered documents that surged in by a Friday deadline will eventually be matched, in fervor if not in number, by opposing amicus briefs. Of them all, a few may actually make a difference.

“Amicus briefs are influential and can impact both the votes justices cast and the content of their opinions,” Paul M. Collins Jr., director of legal studies at the University of Massachusetts, said in an email Friday. “It is important to recognize, however, that not all amicus briefs are created equal.”

The briefs are supposed to help the court’s nine justices prepare for the April 28 oral argument, in which same-sex marriage restrictions imposed in Kentucky, Tennessee, Michigan and Ohio will be put to the test.

One brief supporting same-sex marriage, for instance, was filed on behalf of 379 companies, ranging from Amazon.com and American Airlines to The Walt Disney Co. and Xerox. Another was signed by 226 mayors.

“It shows (our) extraordinarily broad base of support,” Camilla Taylor, counsel for Lambda Legal, a civil rights advocacy group, said Friday. “It’s really a cross section of society.”

Some briefs provide non-legal research and context, such as an Organization of American Historians’ recounting of anti-gay discrimination. Another, by the American Sociological Association, cites studies concerning the health of children raised by same-sex couples.

Others, less unique and therefore less useful, essentially repeat familiar legal arguments. In part for this reason, many briefs get the brush-off. In 2012-13, research by Arnold & Porter attorneys Anthony J. Franze and R. Reeves Anderson found, the justices cited just 5 percent of the nongovernmental briefs.

In sheer volume, if nothing else, the amicus briefs are also part of an evolution in Supreme Court advocacy. Once relatively rare, amicus briefs now swarm the chambers like so many courtiers, each pleading for but a moment of a justice’s precious time.

In 1946, Supreme Court cases were accompanied by an average of less than one amicus brief. By 2007, cases were receiving an average of more than eight briefs. During the 2012 term, the cases were attracting an average of 14 amicus briefs.

All told, by the 2013 term the high court received more than 1,000 amicus briefs, though it heard oral argument in fewer than 80 cases.

“In the contemporary era, it is the rare case that is not accompanied by amicus briefs,” Collins said.

The individual record, to date, was set by the 136 amicus briefs filed during the 2012 challenge to the individual mandate of the Patient Protection and Affordable Care Act.

The two-hour oral argument on April 28 will focus on two questions, each involving the 14th Amendment to the Constitution’s guarantee of equal protection and due process.

As framed by the court, one question is whether the 14th Amendment will “require a state” to license a marriage between two people of the same sex. The other question is whether states are required to recognize same-sex marriages performed elsewhere.

“Civil marriage is a civil right, that all Americans are entitled to enjoy, whatever their religious identity or sexual orientation,” the California Council of Churches and other California-based religious organizations declared in a brief.

The last time the Supreme Court considered same-sex marriage, in 2013, a total of 96 amicus briefs representing both sides were filed over a challenge to California’s Proposition 8, which banned same-sex marriage. A related challenge to part of the federal Defense of Marriage Act brought in 80 amicus briefs.

These previous same-sex marriage cases, moreover, showed how a clever amicus brief can work. A brief led by Walter Dellinger, an emeritus professor at Duke University School of Law and a former acting solicitor general, was widely credited with helping shape the court’s 5-4 conclusion that Proposition 8’s supporters lacked the legal standing to defend the measure in court.

The brief’s reasoning was tactically deft, in part, because it provided a way for conservative Chief Justice John Roberts Jr. to effectively strike down Prop. 8 without having to rule on what the Constitution says about it.

An equally potent amicus brief signed by retired senior military officers helped persuade conservative Justice Sandra Day O’Connor in 2003 to uphold affirmative action at the University of Michigan Law School.

“High-ranking retired officers and civilian military leaders assert that a highly qualified, racially diverse officer corps is essential to national security,” O’Connor recited in her opinion.

Photo: Marriage Equality rally at the U.S. Supreme Court on First Street between Maryland Avenue and East Capitol Street, NE, Washington DC on Tuesday morning, 26 March 2013 (Elvert Barnes/Flickr)

To Nobody’s Surprise, Supreme Court Seems Split On Health Care Law

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — A clearly divided Supreme Court on Wednesday put Obamacare under the microscope once again, with the tentative prognosis looking rather positive for the president’s signature health care law.

During an unusually long oral argument, several members of the court, including potential swing Justice Anthony Kennedy, warned of a “death spiral” that might occur from a ruling that cuts off insurance subsidies in 34 states that rely on a federal health exchange.

“You get these disastrous consequences,” Justice Ruth Bader Ginsburg declared.

Immediately at stake are the tax-credit subsidies that have helped make health insurance affordable for millions of Americans in dozens of states.

At issue is the legality of the subsidies for an estimated 7.5 million subscribers in the 34 states that chose not to run their own health insurance exchanges, leaving it to the federal government. Critics argue that the law, as written, permits the subsidies to go only to people who use state-run exchanges. The administration says the subsidies were intended to be available in all states.

Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer posed questions or made statements that suggested sympathy for the administration’s position. Pointedly, Kennedy also identified what he termed a serious problem with the argument made by the law’s opponents.

In particular, justices questioned whether the opponents’ interpretation of the law puts the federal government in a position of coercing states, which the court generally frowns on.

“There is something very powerful to the point that if your argument is accepted, the states are being told, ‘Either create your own exchange or we’ll send your insurance market into a death spiral,'” Kennedy told Michael A. Carvin, the attorney for the law’s opponents.

Possibly keeping his powder dry, Chief Justice John Roberts Jr. was uncharacteristically quiet during much of the 85-minute argument.

Once considered an esoteric, long-shot, the case, King v. Burwell, could still shake the foundations of the Affordable Care Act, the 900-plus-page health care law that Congress passed and Obama signed in 2010.

The court previously upheld the law against an explicit constitutional challenge, in a 2012 decision written by Roberts that concluded Congress had the authority to impose the so-called individual mandate. The mandate requires individuals either to buy insurance or pay a penalty.

The new challenge is focused more on the text of the law than on the Constitution, although the Constitution might still come into play.

The health care law encourages states, but does not require them, to establish exchanges to offer one-stop shopping for insurance coverage. As inducement, the law offers tax credits to people qualified by income who buy insurance through an exchange “established by the State.” The challenge turns on this four-word phrase.

Driven primarily by Republican resistance, 34 states declined to establish health insurance exchanges. Nevertheless, the Internal Revenue Service has extended tax credit subsidies to residents of these states who buy insurance through the federal exchange, HealthCare.gov.

Challengers say the law’s black-and-white text means what it says: A health exchange must be established by “the state” for the subsidies to be available. The federal government, by this reasoning, cannot substitute when states have declined to act.

“It may not be the statute they intended,” Justice Antonin Scalia said. “The question is whether it’s the statute they wrote.”

Even the possibility of “disastrous consequences,” Scalia added, shouldn’t distract the court from its understanding of the text.

“This is a straightforward case of statutory construction where the plain language of the statute dictates the result,” Carvin agreed.

Supporters of the law counter that the questionable phrase makes sense only in context. Citing everything from the expectations of states to the deal-making that shaped the legislation, they insist on a broader interpretation.

“We look at the whole text,” Kagan said. “We don’t just look at the four words.”

Defenders of the law say, as well, that Congress wouldn’t bury a big burden on the states beneath such ambiguous language.

“Their reading produces an incoherent statute that doesn’t work,” Solicitor General Donald Verrilli Jr. said of the health care law’s opponents. “It revokes the promise of affordable care for millions of Americans.”

Justice Clarence Thomas, in keeping with his customary practice, was the only one of the nine justices not to speak or ask questions during the argument, which drew an unusual number of reporters. Outside the court, demonstrators rallied and enthusiasts lined up especially early for seats inside to hear the argument.

A decision is expected by the end of June. In public, Obama administration officials have said they aren’t preparing backup plans in case the court strikes down the crucial subsidies.

“We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision,” Health and Human Services Secretary Sylvia Burwell wrote senators last month.

Underscoring the stakes, Burwell attended the argument, along with her predecessor, Kathleen Sebelius, under whom the Affordable Care Act came to pass. Several key lawmakers were also in attendance, including House Minority Leader Nancy Pelosi (D-CA); House Majority Leader Kevin McCarthy (R-CA); and Senator Orrin Hatch (R-UT), chairman of the Senate Finance Committee.

Photo: Chris Phan via Flickr

Free Speech Or Conflict? High Court To Hear Judges Fundraising Case

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — Hands-on fundraising for a 2009-2010 judicial campaign in Florida’s Hillsborough County is now front and center at the U.S. Supreme Court, where justices must balance free speech against judicial neutrality.

Amid escalating campaign costs nationwide, the high court on Tuesday will weigh Florida’s rule that prohibits judicial candidates from directly soliciting contributions. The court’s eventual answer will matter in many of the 39 states where residents appear before elected judges.

“Very significant life decisions are in the hands of these judges,” noted Tracey George, a professor at Vanderbilt University Law School. “We should be particularly concerned and interested with the rules that govern how we choose (them).”

Underscoring the broader stakes, 11 states including Idaho, Pennsylvania and Washington have joined a legal brief supporting Florida’s position. The organization representing the chief justices in all 50 states also backs the campaign solicitation rule.

“The restrictions on direct judicial solicitation safeguard the critical state interests in a judiciary that is impartial in both fact and appearance, and protect lawyers and litigants from potential coercion,” the chief justices declared in a brief, signed by attorney Igor V. Timofeyev.

But to Lanell Williams-Yulee and her allies, the contribution solicitation ban seems a rank violation of rights protected by the First Amendment. Her strange-bedfellows array of supporters range from the American Civil Liberties Union to conservative attorney James Bopp, the longtime general counsel to the National Right to Life Committee.

While Williams-Yulee declined to comment until after the hour-long oral argument Tuesday morning, her case against Florida’s direct solicitation rule is spelled out in court filings.

“It prohibits speech at the core of the First Amendment, the speech of candidates for elective office,” Williams-Yulee’s attorneys wrote in one brief, adding that “recusal rules prevent judges from presiding over matters in which their impartiality might plausibly be questioned, without intruding on First Amendment rights.”

A graduate of the University of West Florida and the Mississippi College School of Law, Williams-Yulee had prior experience as both a prosecutor and assistant public defender when she launched a campaign for county court judge in Hillsborough County. The county includes the city of Tampa.

As part of her campaign kickoff in September 2009, Williams-Yulee signed a mass-mailed letter that asked for contributions, with recommended amounts ranging from $25 to $500.

Incumbent Judge Dick Greco Jr., easily defeated Williams-Yulee in the August 2010 balloting, winning 80 percent to 20 percent. Williams-Yulee subsequently lost a later three-way judicial race in 2012.

“I don’t care how much money you have, or your color,” Williams-Yulee told the Tampa Bay Times during the 2012 campaign. “I want to be fair and impartial.”

Even before the 2010 election ended, though, the Florida Bar filed a complaint alleging Williams-Yulee had violated a provision in the state’s 43-page Code of Judicial Conduct. The code states that “a candidate…for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.”

Willliams-Yulee received a public reprimand and was ordered to pay $1,860.30 to cover costs.

Defenders of the fundraising restriction cite the importance of maintaining public confidence in a neutral judiciary. Illustratively, a 2007 survey by Annenberg Public Policy Center at the University of Pennsylvania found 69 percent of those asked think raising money for elections affects a judge’s ruling. One quarter of state judges surveyed in 2002 said contributions influence decisions.

“States have a compelling interest in avoiding the actuality and appearance of corrupt influence,” attorneys for the Florida Bar declared in a brief.

Between 1990 and 1999, judicial candidates raised approximately $83.3 million. Judicial candidates then raised a stunning $206.9 million over the next 10 years, Emory University Law School Professor Joanna M. Shepherd reported in the Duke Law Journal.

The dash for dollars is accelerating. In Florida, the three state Supreme Court justices facing retention elections last year raised approximately $1.5 million for their campaigns. The money race, moreover, has seemingly outpaced restraint efforts.

“This is the first time the court has considered regulations of judicial campaign conduct since 2002,” noted Matthew Menendez, counsel for the Brennan Center for Justice’s Democracy Program.

Restrictions have been challenged before, sometimes successfully.

Erlanger, Ky.-based attorney Marcus Carey, who has joined in a brief supporting Williams-Yulee, twice sought election for state court positions, including an unsuccessful 2006 bid for a Kentucky Supreme Court seat. In July 2010, the U.S. 6th Circuit Court of Appeals sided with Carey in calling the state’s ban on direct solicitations overly broad.

“Judicial elections, like most elections, require money; often, a lot of it,” Judge Jeffrey Sutton wrote. “Prohibiting candidates from asking for money suppresses speech in the most conspicuous of ways and, in the process, favors some candidates over others.”

AFP Photo/Jim Watson

Talk Of Petraeus Indictment Raises Legal Questions For His Ex-Paramour

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — Former CIA Director David Petraeus is not the only one in potential legal jeopardy for the reported discovery of classified information on his former paramour’s computer.

Unauthorized recipients of classified information, too, can be prosecuted along with alleged leakers. And though these sorts of prosecutions are exceedingly rare and difficult to win, even their remote possibility might merit close tending now by Charlotte, N.C., resident Paula Broadwell.

“It would be very complicated, and I doubt the government would want to go there,” said Mark S. Zaid, a Washington-based attorney specializing in national security issues.

At the same time, Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, noted that “the government takes the position that the unauthorized receipt and possession of classified information can be a violation of the law.”

It is, Aftergood stressed, a “contentious area.”

It’s also a shadowy area that’s back in the spotlight, amid reports that Justice Department prosecutors have recommended bringing charges against Petraeus. The New York Times, citing anonymous “officials,” first reported last Friday that prosecutors have recommended that the retired Army general face charges.

The decision whether to prosecute Petraeus, with its potential ripple effects on Broadwell, will be made at the “highest levels,” Attorney General Eric Holder said Sunday.

“The determination has yet to be made and we will just see how things play out before any final decision is made,” Holder said on NBC.

Broadwell’s attorney, Robert Muse of Washington, declined to comment Monday.

Broadwell co-authored a highly sympathetic biography of Petraeus, with whom she was subsequently revealed to have been romantically involved. In December 2012, federal prosecutors said they would not pursue cyberstalking charges against her, following an investigation into emails allegedly sent by Broadwell to another woman.

“As federal prosecutors, we are guided in the discharge of our responsibilities by considerations of fairness and justice,” William Daniels, spokesman for Tampa-based U.S. Attorney for the Middle District of Florida Robert E. O’Neill, said at the time.

The prosecutors’ December 2012 statement did not deal with the separate issue of classified information. News reports from 2012, citing anonymous sources, recounted that FBI agents, in the course of their alleged cyberstalking investigation, had found classified documents on Broadwell’s computer.

In previous news accounts, Petraeus has been quoted as denying that he provided classified information to Broadwell. Broadwell also previously has denied getting classified documents from Petraeus.

What law, or laws, might theoretically apply to any recipient of classified documents could turn on several questions, including the jobs of those who hold the information.

“Yes, there is potential liability, on paper,” Zaid said, “but there are lots of laws on the books that are never enforced.”

One federal law governs those who are an “officer, employee, contractor or consultant” for the U.S. government. Such an individual who “becomes possessed” of classified documents, “knowingly removes” them without authority and retains them at an “unauthorized location” can face a prison term of up to one year.

Broadwell, a West Point graduate, was a major in the Army Reserves at the time the Petraeus scandal became public. She had a security clearance, a point that Zaid cautioned “could change the dynamic” by increasing her legal liability.

Stricter penalties, including a prison term of up to 10 years, come with violating the Espionage Act’s prohibition against the gathering, transmitting or receipt of defense information with the intent or reason to believe the information will be used against the United States.

But that charge would be difficult to pursue.

“Although reporters frequently gain access to classified information, there has never been a non-espionage case in which a person has actually been charged with unauthorized receipt of classified information,” Aftergood said.

In 2005, Justice Department prosecutors brought charges against two former officials with the American Israel Political Action Committee. The men were accused of receiving classified information and transmitting it to lobbyists, journalists and diplomats.

But four years later, underscoring the courtroom complications, prosecutors dropped all charges against the two men. The trial judge had set a high bar for conviction, saying prosecutors would have to prove the defendants knew distributing the information would harm the United States.

“It was wrong to apply the Espionage Act to people who clearly were not spies,” defense attorneys Abbe Lowell, John Nassikas and Baruch Weiss said in a statement at the time.

Photo via Wikimedia Commons

Supreme Court Permits ‘Reasonable Mistakes’ By Police In Searches

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — The Supreme Court on Monday upheld a North Carolina car search, in an 8-1 decision that provides more wiggle room for law enforcement officers who make a “reasonable” mistake about the law.

With conservative and liberal justices all but united, the court ruled that the 2009 search was permissible even though the Surry County Sheriff’s Office sergeant who conducted it erred in thinking the car violated state law governing warning brake lights.

“To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection,” Chief Justice John Roberts Jr. wrote.

Justice Sonia Sotomayor was the sole dissenter, arguing that the decision means “further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.”

The Fourth Amendment prohibits unreasonable searches and seizures. The Supreme Court has previously ruled that a search might be permissible if the officer makes a reasonable factual mistake. Roberts cited the example Monday of an officer stopping a motorist for traveling alone in an HOV lane, only to discover that two children are slumped over asleep in the back seat.

The case decided Monday extended the same kind of reasoning to different kinds of mistakes, dealing with the law.

“Reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion,” Roberts wrote.

Underscoring the case’s broader significance, 19 states filed a brief siding with North Carolina.

The case grew out of a police stop on the morning of April 29, 2009, when Sgt. Matt Darisse of Surry County pulled over a Ford Escort on Interstate 77 near Dobson, N.C., about 90 miles north of Charlotte. Darisse had begun following the car because he thought the driver looked “stiff and nervous.”

Darisse thought he had reason to pull the car over and subsequently search it when he noticed that only one of its brake lights went on while the car slowed. At the time, Darisse said he thought North Carolina law required that cars have two working brake lights; the North Carolina Court of Appeals later ruled Darisse was wrong.

The driver, who was not involved in the case decided Monday, and the car’s owner, Nicholas Brady Heien, did not object to a search. Following a search of about 40 minutes, Darisse found in the side compartment of a duffle bag a sandwich bag containing cocaine.

Heien pled guilty, while reserving the right to appeal.

“Only by refusing to excuse such mistakes can officers be properly deterred from engaging in such overly ambitious readings of the traffic code, at the expense of individual liberty,” Stanford Law School professor Jeffrey L. Fisher wrote in a brief filed on Heien’s behalf.

The court’s majority, though, reasoned that law enforcement officers sometimes must act quickly, even in cases where the law’s technical specifications may be hard to come by.

“A law prohibiting ‘vehicles’ in the park either covers Segways or not,” Robert noted as an example, “but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by.”

Heien, now 26, was released from prison in 2012, state records show.

AFP Photo/Mark Wilson

Results Are Mixed When Feds Try To Reform Local Police

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — As the Justice Department pursues new cases involving the deaths of black suspects, a recent North Carolina courtroom clash shows what can happen when the federal government becomes entangled with local policing.

It can get uglier than a mug shot.

But federal oversight can also promote progress, albeit with rocky starts. In cities such as Seattle, official monitors are applauding certain police department changes compelled by agreements reached with the Justice Department.

How federal intervention in local law enforcement works out appears to matter now more than ever.

The Justice Department has launched a civil rights investigation into the shooting death by police of Michael Brown, an 18-year-old black teenager in Ferguson, Mo. Attorney General Eric Holder pledged a similar inquiry into the death of 43-year old Eric Garner of New York, who died after being placed in a chokehold by a police officer.

Both Brown and Garner were unarmed. Both police officers involved were white. And in both cases, grand juries declined to indict the officers, triggering street protests in several cities and a national debate over race and police violence.

A related civil rights investigation into the Ferguson Police Department might lead to a consent decree with the Justice Department — a court-enforced and publicly monitored agreement that spells out specific steps to be taken.

“They have been proven to be effective as a means of reform for troubled departments that have been incapable of reforming themselves,” Samuel Walker, an emeritus professor of criminal justice at the University of Nebraska Omaha, said of consent agreements in an interview.

The Obama administration’s Justice Department has opened more than 20 investigations of local law enforcement agencies, which Holder noted Thursday is “more than twice as many as were opened in the previous five fiscal years.”

These are investigations of institutions, and they’re separate from the civil rights investigations into individual officers who kill civilians.

Sometimes federal investigators have given local agencies clean bills of health. In the past five years, inquiries by the Justice Department’s Special Litigation Section, part of the Civil Rights Division, found no pattern or practice of unconstitutional violations in five local law enforcement agencies that had been under scrutiny.

In September 2012, for instance, federal officials closed an investigation of the Escambia County Sheriff’s Office, in westernmost Florida, despite lingering problems cited by the Justice Department, such as what it called excessive use of stun guns. In May 2011, the Justice Department amicably closed a four-year investigation of the Austin Police Department in Texas.

Sometimes, local officials resist the federal oversight.

After a two-year investigation, Justice officials concluded in 2012 that the Alamance County Sheriff’s Office in central North Carolina had engaged in discriminatory policing practices against Latinos. Sheriff Terry Johnson refused to negotiate a settlement agreement, and the Justice Department sued.

A nine-day trial ensued last August in the federal courthouse in Winston-Salem. More recently both sides have presented U.S. District Judge Thomas Schroeder with their final post-trial arguments.

“Before an operation at the predominantly Latino Rocky Top mobile home park, Sheriff Johnson ordered two Gang Unit officers to ‘go get me some Mexicans,’ ” the Justice Department recounts in its 149-page post-trial brief.

Over a five-year period, other testimony showed, Latinos made up 36.8 percent of all checkpoint stops, despite composing only 8.6 percent of the driving-age population in Alamance County. But in their own 131-page post-trial brief, the Raleigh-based attorneys who are defending the sheriff deny allegations of discrimination.

“The government asserted that (the sheriff department’s) roundups were discriminatorily based,” the defense attorney noted. “However, the uncontroverted evidence reveals that upwards of 90 percent of drug traffickers in Alamance County are not only Hispanic, but from Mexico.”

Schroeder, appointed to the federal bench by President George W. Bush at the recommendation of then-Sen. Elizabeth Dole, hasn’t yet issued a decision.

Rather than resist, most local law enforcement agencies facing Justice Department scrutiny end up collaborating. On Thursday, Holder traveled to Cleveland to announce the results of an investigation into the Cleveland Police Department and the progress toward a court-enforced consent agreement.

The investigation was initiated well before the shooting Nov. 22 of 12-year-old Tamir Rice, who was carrying a pellet gun, by a Cleveland police officer.

The anticipated agreement will address the practices that Justice officials found during their 18-month investigation of the police department, concluding that it’s engaged in the use of excessive force. That was exemplified by the mishandling of a man named Edward Henderson, whom police apprehended in January 2011 after a six-minute car chase.

“After Mr. Henderson was restrained, prone on his stomach, officers began kicking Mr. Henderson, and other officers appear to be striking him as well,” the Justice Department’s investigation found. “Mr. Henderson was subsequently brought to the hospital with a broken orbital bone.”

The eventual Cleveland police consent agreement, as well as one that might eventually follow the still-unfinished Ferguson police investigation, would join nine other consent agreements — all stemming from civil rights investigations — currently in force at departments across the country. They bring ongoing monitoring, making sometimes-insular police departments more transparent.

A 154-page monitor’s assessment of the Seattle Police Department last June identified continuing, but incomplete, progress since the 2012 signing of a consent agreement with the Justice Department.

“This transition has accomplished a good deal,” noted the independent monitor, Merrick Bobb. “Nonetheless, critical milestones remain elusive.”

On the positive side of the ledger, Bobb noted that Seattle police had completed helpful new manuals governing the use of force, stops and detentions, and bias-free policing. Officers have received fresh training, and are collaborating more with social service providers.

Still, some rank-and-file resistance remains, as more than 100 Seattle police officers joined a lawsuit earlier this year against adopting a new use-of-force policy. A federal magistrate judge dismissed the suit in October.

“That lawsuit was a rant,” said Walker, the emeritus criminal justice professor, adding that “in most cases, the rank and file doesn’t like” the changes imposed by consent decrees.

Bobb cautioned that other remaining problems range from the Seattle Police Department’s “byzantine and arcane” disciplinary system to a deeply flawed data system that’s “some 20 years behind major law enforcement agencies” and leaves the department “flying blind.”

AFP Photo/Jim Watson

A Possible Ferguson Solution: Cameras On Cops

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — The Ferguson fallout will include more police officers nationwide wearing cameras as part of their uniforms.

Lawmakers like Sen. Claire McCaskill (D-MO) are talking about federal funding. Researchers are digging into data about costs and benefits. Cities that already have equipped police with cameras are fielding questions from those that are considering it.

“The officers have welcomed them, and I think the community has, too,” April R. Harris, treasurer of the Greensboro Police Foundation in North Carolina, said in an interview Wednesday, recalling that “before we had the cameras, we had here in Greensboro a couple of police situations where it was, ‘He said, she said.’ ”

The Greensboro Police Foundation raised more than $100,000 to purchase the cameras for the city’s police department. While the fundraising drive was a success, the need for it also underscored one of the challenges ahead: the cameras can be costly.

The cameras’ use, moreover, can open up unanticipated conflicts. Harris noted, for instance, that there are now questions about whether the video taken by a camera worn by an officer amounts to a personnel record that’s exempt from public release.

There’s no doubt, though, that the shooting of unarmed teenager Michael Brown by Ferguson Police Officer Darren Wilson is prompting much more interest in the cameras that can capture an ambiguous encounter.

“Since Ferguson, the agencies will look more closely to see, ‘How can we make this happen?’ but also, ‘How can we do it right?’ ” Lindsay Miller, senior research associate at the Police Executive Research Forum, said in an interview Wednesday.

Miller, co-author of an extensive Justice Department-funded study of police cameras, noted that, even before Ferguson, the cameras often first deployed “in smaller and mid-sized agencies” have in the last year or two been adopted by larger agencies.

Charles Katz, an Arizona State University criminology associate professor, agreed that the Ferguson incident will accelerate the use of body-worn cameras.

No good public estimate exists for how many law enforcement agencies currently deploy officers with cameras. The agencies that do use them vary widely in size and sophistication. The two-officer police department in Miller’s hometown in rural Missouri uses body-worn cameras, and so, as part of a test run, does the Los Angeles Police Department.

The Police Executive Research Forum study included a survey with responses from 254 law enforcement agencies, 63 of which reported using body-worn cameras.

The analysts identified tangible benefits that include better documentation of evidence, increased police accountability and a reduction in the use of force.

A yearlong study of the Mesa Police Department in Arizona, for instance, found that camera-wearing officers had 40 percent fewer public complaints, and 75 percent fewer use-of-force complaints, than they had without wearing cameras. Camera-wearing police in Rialto, Calif., had an 88 percent reduction in citizen complaints.

But with the benefits come costs and questions.

Individual cameras can cost in the range of $800 to $1,200, although TASER International markets an “ultra-durable on-officer camera” for $399. Thirty-nine percent of agencies responding to the Police Executive Research Forum survey identified price as a primary reason for not ordering the cameras.

Private fundraising, akin to what happened in Greensboro, has been one solution. The Los Angeles Police Department raised nearly $1.3 million in private funds for officer cameras, which began as a pilot project last January. Another solution could be federal aid, of the sort being suggested by McCaskill.

“She is specifically looking at options for prioritizing federal resources that go to local police departments, so that body cameras come first, before other equipment,” McCaskill spokeswoman Sarah Feldman said in an interview Wednesday, stressing the idea is “not a mandate.”

Other questions, beyond funding, include:

— How much discretion will individual officers have to turn off the cameras for certain particularly sensitive encounters, such as meetings with informants or during work at crime scenes?

— How will the privacy interests of victims be protected, and how will those privacy interests be balanced against the public’s?

— How will the video recording of encounters change the behavior of citizens and officers alike?

The questions are prompting states and municipalities to come up with different answers, on policies ranging from how long video recordings are stored to who has a say in the video recording.

Pennsylvania legislators, for instance, passed earlier this year a law waiving the previous requirement that police obtain consent before video recording another person. In some other states, the old two-party consent rules still apply.

Police unions, too, weigh in, and sometimes voice resistance. In New York City last year, the Patrolmen’s Benevolent Association pushed back against U.S. District Judge Shira Scheindlin’s order that the city initiate a pilot program equipping officers with cameras in selected precincts.

The pilot program has begun, though union leaders maintain that mandated use of body cameras is a workplace condition that should be negotiated as part of an overall labor contract. Scheindlin insisted on trying the cameras as part of a ruling that struck down the city’s controversial stop-and-frisk policy.

“The recordings should also alleviate some of the mistrust that has developed between the police and the black and Hispanic communities,” Scheindlin wrote, adding that “video recordings will be equally helpful to members of the NYPD who are wrongly accused of inappropriate behavior.”

Photo: A St. Louis County Police tactical team arrives on West Florissant Avenue to disperse the crowd as the Beauty Town store burns on Monday, Nov. 24, 2014. (David Carson/St. Louis Post-Dispatch/TNS)

Ferguson Grand Jury Does Not Indict, But Probes Continue In Washington

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — Two Justice Department investigations related to the fatal shooting in Ferguson, Mo., of teenager Michael Brown remain open, separate from the state grand jury that announced Monday night it would not indict Police Officer Darren Wilson.

One still-open investigation could yet lead to federal charges against Ferguson Police Officer Darren Wilson, although the odds appear to be against this.

The other ongoing investigation is much broader, as a federal team probes whether there has been a pattern and practice of discriminatory behavior by the Ferguson Police Department. This investigation likely will take many more months but ultimately could lead to systemic reforms.

“There, I think the federal government is going to act,” Peter A. Joy, a professor at Washington University School of Law, predicted several weeks ago at a school panel discussion.

Attorney General Eric Holder initiated the broader Ferguson investigation in early September. Undertaken by the Civil Rights Division’s Special Litigation Section, the investigation is focusing on the Ferguson Police Department’s use of force; stops, searches and arrests; discriminatory policing; and treatment of detainees inside the Ferguson city jail.

The federal investigators, for instance, are digging into data concerning Ferguson traffic stops.

Last year, African-Americans drove 86 percent of the 5,384 cars stopped by Ferguson police officers, according to the state’s annual racial profiling report. African-American drivers were twice as likely to be searched and twice as likely to be arrested as white drivers, according to the report.

Similar investigations have targeted the Albuquerque Police Department in New Mexico, the Miami Police Department in Florida and the Newark Police Department in New Jersey, among others.

The investigations can take a long time.

In May 2011, for instance, federal officials opened the Newark investigation. The final report was issued in July 2014. The Albuquerque investigation that opened in November 2012 also lasted until this year.

The Ferguson inquiry is one of about 20 similar investigations begun during Holder’s tenure. The Justice Department is already enforcing 14 agreements to reform law enforcement practices at agencies both large and small.

Separately, the Justice Department’s Community Oriented Policing Services office has joined in a collaborative reform effort with the St. Louis County Police Department. The assessment includes a look at the agency’s Municipal Police Academy, which trains officers for many police departments in the region.

Similar assessments have led, for instance, in Las Vegas to a set of 75 findings and concrete recommendations regarding officer-involved shootings and other use-of-force issues.

The most sensitive of the federal investigations is the one targeting Wilson himself, and it may face the longest odds.

To successfully bring a separate federal charge against Wilson, Justice Department prosecutors would have to prove beyond a reasonable doubt that he intended to violate Brown’s civil rights. Federal law makes it a crime for anyone acting with governmental authority to “willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.”

The FBI opened 380 such “color of law” cases in 2012, involving allegations ranging from false arrest to sexual assault and excessive force. Prosecutions, though, don’t necessarily follow investigations.

An extensive 2004 analysis by the Transactional Records Access Clearinghouse, a nonpartisan data-gathering organization, found that only about 2 percent of “color of law” civil rights investigations resulted in charges being brought.

A Justice Department civil rights investigation into George Zimmerman’s 2012 shooting of Florida resident Trayvon Martin technically remains open, but media reports have indicated no charges will be brought.

“This investigation will take time,” Holder said of the Darren Wilson investigation in early September, “but the American people can have confidence that it will be fair, it will be thorough, and it will be independent.”

On another track, Brown’s family can file a federal wrongful death civil suit against Wilson, the police department or both. The standard of proof to win such a suit is preponderance of the evidence, lower than the beyond a reasonable doubt threshold for a criminal conviction.

One civil suit, seeking $40 million, already has been filed by other Missouri residents claiming Ferguson police used excessive force in controlling demonstrators.

St. Louis County Prosecutor Robert McCulloch announces the grand jury’s decision not to indict Ferguson police officer Darren Wilson in the Aug. 9 shooting death of Michael Brown on Monday, Nov. 24, 2014, at the Buzz Westfall Justice Center in Clayton, Mo. (Cristina Fletes-Boutte/St. Louis Post-Dispatch/TNS)

Attorney General Nominee Lynch: ‘Doesn’t Play The Political Game’

By Michael Doyle, McClatchy Washington Bureau (MCT)

WASHINGTON — Loretta Elizabeth Lynch entered politics the old-fashioned way, family first.

Her father, Lorenzo A. Lynch Sr., was running for mayor of Durham, N.C. It was 1973, and the younger Lynch dutifully volunteered at the entry level.

“I was 14 at the time,” Lynch later told the Senate Judiciary Committee, “and primarily answered phones and stuffed envelopes.”

Her father lost, and the inaugural experience in raw campaigning didn’t appear to enrapture his daughter. The Greensboro, N.C., native went on to graduate cum laude with a degree in English and American literature, not government, from Harvard.

But now, at the age of 55, Lynch is poised to revisit the Senate Judiciary Committee and navigate the nation’s busiest intersection of politics and law. As President Barack Obama’s nominee to become the nation’s 83rd attorney general and the first black woman to hold the post, she’ll face a Congress controlled by Republicans and a Justice Department that’s about 400 times larger than the Brooklyn-based U.S. attorney’s office she runs.

All of which will test the mettle of this minister’s daughter, whom many praise for her grace under pressure.

“She’s someone who is well-liked by all,” former federal prosecutor George Stamboulidis said in an interview. “She is very charismatic and she attracts people of all kinds, but she doesn’t play the political game.”

Stamboulidis, now a co-chair of BakerHostetler’s white-collar defense and corporate investigations team, added that “when everything is blowing up all around you, she has the ability to focus.”

That will certainly help if Lynch wins Senate confirmation to run a department with 116,000 full-time employees, an annual budget of about $27 billion and, it sometimes seems, a big fat target painted on its back.

Attorney General Eric Holder was voted in contempt of Congress by the Republican-led House in 2012, the first U.S. attorney general to face that ignominy. President George W. Bush’s widely derided second attorney general, Alberto Gonzales, resigned amid bipartisan pressure. Some Justice Department sub-agencies, such as the Bureau of Alcohol, Tobacco, Firearms and Explosives, regularly draw fire from Capitol Hill.

Illuminating the potential for problems, Republican Sen. Charles Grassley of Iowa, the incoming chairman of the Judiciary Committee, said last year that “concerns about ATF’s hostility to small gun dealers” had contributed to a seven-year delay in confirming a new ATF head.

Lynch’s still-unscheduled confirmation hearing will be her third review by the committee. The panel confirmed her twice before for two stints as a U.S. attorney. In preparation for her latest hearing, Senate researchers are thumbing through every page of her past.

It’s all being collected, grist for the mill: Lynch’s June 1992 “Women’s Day Celebration” talk at Long Branch Baptist Church in Greenville, S.C., a September 2007 panel discussion at Duke University Law School about the false accusations of rape levied against players on the men’s lacrosse team, an April 2009 speech to New York lawyers celebrating “South African Freedom Day.”

If they find an immaculate personal record, as most expect for a candidate who’s already been vetted and approved twice by voice vote in the Senate, Republicans might still press Lynch hard on Obama’s planned use of executive action on hot-button issues such as immigration.

Republican Sens. Ted Cruz of Texas and Mike Lee of Utah have already warned that Lynch will be pressed on “whether or not she believes the president’s executive amnesty plans are constitutional and legal.”

Lynch was the second of three children. Her mother, Lorine, was a school librarian and her father a longtime minister at Durham’s White Rock Baptist Church. The senior Lynch has since retired and lives with his wife in Durham.

Loretta Lynch graduated from Durham High School in 1977 and then Harvard in 1981, where she was a member of the Delta Sigma Theta sorority. Some students take time off the academic fast track after college. Lynch did not, immediately entering Harvard Law School and graduating in 1984.

She worked in private practice with a New York City firm until she joined the Justice Department in 1990. She took on some tough prosecutions, such as an eight-week trial of nine members of the Green Dragons, a violent Asian street gang. Seven defendants are now serving life sentences.

“I like being on what I view as the good guys’ side of the law,” Lynch told the Durham Herald-Sun in a 1999 telephone interview. “I try to ignore the media and focus on what’s going on in the courtroom.”

That’s been a particular challenge in some high-profile cases she’s taken on. Her Brooklyn-based prosecutors are currently going after Republican U.S. Rep. Michael Grimm of New York, who recently won re-election despite facing a 20-count indictment that includes charges of perjury and mail fraud.

“The word that comes to mind with Loretta Lynch is courtly,” New York-based defense attorney Stephen C. Worth said in an interview. “She has a certain dignity about her.”

Worth, who faced off against Lynch in an incendiary case involving a 1997 police attack on Haitian immigrant Abner Louima, said he continued to think that his client Charles Schwarz was wrongly convicted amid a heated political atmosphere. Conflicting evidence was presented about Schwarz’s role in the assault on Louima.

At the same time, Worth praised Lynch for doing a “terrific job” during the trial summation and said “everyone likes her.” With a sardonic New York defense attorney’s edge, he said her “annoyingly nice personality” could win over jurors and antagonists alike.

In 2007, she married Stephen Hargrove, and she’s now the stepmother to his two grown children.

A registered Democrat, Lynch has been a minor campaign contributor to her party’s candidates over the years, including a total of $9,200 to several Obama committees in 2008, records show. Her relatively low-key political activity might help her, as it deflects potential GOP charges of cronyism.

She has an important political ally in New York Sen. Charles Schumer, for whom she’s served on a judicial screening panel. Schumer is now a senior member of the Judiciary Committee, which will consider her nomination.

Photo: U.S. President Barack Obama nominates Loretta Lynch, the U.S. attorney in Brooklyn, to succeed Eric Holder as attorney general during an event in the Roosevelt Room on Saturday, Nov. 8, 2014, in Washington, D.C. (Olivier Douliery/Abaca Press/MCT)