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As lohud.com reports, a select group of Pace students along with professors Vanessa Merton, Thomas M. McDonnell, and Vikki Rogers, spent their ’2016 spring break’ in Dilley, Texas assisting the CARA Family Detention Pro Bono Project by offering legal assistance to women and children apprehended by ICE who are seeking asylum status in the United States. This was an intense and intimate lawyering experience for the students in the Pace Immigration Justice Clinic, lead by Prof. Merton, who worked closely with detained Central American children and mothers in the country’s largest family immigration detention center. Not only were the students able to work with the incredibly intricate and arcane immigration asylum law – many of these women and children face physical danger or death in their native countries - but they did so in a context that, as one of the students reported, required them to gain sufficient trust to make the representation effective. As result of their efforts, more than 90 women and children were released to join family members already residing in the United States.

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Fatou Bensouda, the ICC’s Prosecutor, announced in her statement that a preliminary examination has been initiated into Burundi on-going crisis, allegedly involving more than 430 persons killed, at least 3,400 people arrested, and over 230,000 Burundians forced to seek refuge. As reported in an earlier post, the Prosecutor has been watching the ongoing situation in Burundi since early 2015, commenting on the then-upcoming election, fulfilling the OTP’s early warning function and preemptively calling for peace and cease of violence. It appears however, that her prevention efforts within Burundi, a State Party to the Rome Statute, unfortunately fell short because about a year later, she is initiating a preliminary examination.

Preliminary examination may be initiated by the Prosecutor, referral from a State Party or Security Council, or a 12(3) declaration by a State that is not a Party to the Rome Statute. In this case, the Prosecutor exercised its vested authority to begin examination. The purpose of such examination is to review and assess information available so far to determine whether a reasonable basis to proceed with investigation exists. Article 53(1) of Rome Statute requires Prosecutor to consider issues of jurisdiction (often focusing on the Court’s subject matter jurisdiction), admissibility (comprising of both complementarity and gravity determination often focusing on the domestic prosecutorial and investigative efforts) and overall interest of justice.

Not every preliminary examination leads to authorization to investigate. In situations of Honduras, Republic of Korea, and the Vessels of Comoros, the Court found no reasonable basis to proceed with investigation, as required by art. 53(1), and concluded its preliminary examinations without prejudice, leaving the possibility to re-open examination available should additional information and evidence surface. On the other hand, in situations of Libya, Ivory Coast, Mali, Georgia, and CAR II, for example, the Court moved forward, finding reasonable basis to proceed and securing pre-trial chamber’s authorization to open investigation in these situations.

The ICC has seven open preliminary examinations at this time, making Burundi the eighth one. Three situations, Palestine, Ukraine and Iraq, are currently in Phase 2 – having the Court consider subject-matter jurisdiction. Four situations, Afghanistan, Colombia, Guinea, and Nigeria, have moved to Phase 3 – having the Court consider issues of admissibility. The Court issues reports on its preliminary examination conclusions each year sharing its findings in each situation and ensuring so the much needed transparency.

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WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

The contamination of water in Flint, Michigan, although still shocking and deplorable, is hardly a recent story. Rather, it has been a disaster years in the making, starting as early as three years ago when The Detroit Water and Sewage Department sent a notice to Flint that its water service contract would be expiring within the year and the city would have to find an alternative source for water. After switching their water source from Lake Huron to the Flint River the following year, for which the city did not prepare by preventing corrosion and lead from leaching into the pipes, the residents of Flint soon began complaining about the water quality. Despite complaints about the “peculiar colors and odors,” fecal coliform bacteria present in some neighborhood’s water, and the extra chlorine treatments that increased levels of other contaminants, Flint officials seemed unconcerned. In July 2014, city officials stated that

[t]his is not an emergency. If a situation arises where the water is no longer safe to drink, you will be notified within 24 hours.

Throughout 2015, various warnings emerged. The total trihalomethane (TTHMS), “a disinfectant byproduct that can cause liver and kidney problems” had exceeded federal limits, and the University of Michigan began testing Flint’s water and detected amounts of lead from drinking fountains in their older buildings. The Michigan Department of Environmental Quality (DEQ), along with the Environmental Protection Agency (EPA), began looking into the problem and discovered Flint’s water source did not contain adequate corrosion control to prevent lead in the pipes. However, both the DEQ and Michigan governor Rick Snyder, insisted the problem was not widespread. Meanwhile, more and more residents voiced their concerns, as people were becoming inexplicably ill from lead-poisoned water. It is estimated that there are at least 8,000 children under the age six who may have been exposed to lead in Flint’s water, a contaminant that causes irreversible damage to developing brains and nervous systems.

By the end of 2015, the cries for help from Flint residents could no longer be ignored, and the story garnered nationwide attention. Unable to rely on its water for consumption, many people from all over the country continue to donate bottled water to the city, while celebrities and activists have brought much-needed attention to the crisis. However, the most obvious question still lingers: Who is responsible for this catastrophe? 

The Flint Water Advisory Task Force, an independent panel, had found that the state’s slow response to its water contamination stemmed from its “disregards for the concerns of poor and minority people,” which make up the majority of Flint’s population. State employees, analysts, emergency managers, and even the governor’s office, were found to have ignored the persistent outcries from Flint residents. The panel, in a 116-page report, found that “bureaucratic indifference” both caused and prolonged the crisis, with fault attributed not only to local Flint officials but also to the EPA. The report concluded that this was a clear case of “environmental injustice.”

Now, months after the report, and nearly two years after the switch of water sources, a criminal indictment has finally been filed against three individuals alleged to have contributed to Flint’s water contamination. Mike Glasgow, a city employee who ran the Flint water treatment plant, was charged with evidence tampering and willful neglect of duty for filing false reports on the city’s water quality, while Stephen Busch, DEQ’s district supervisor, and Michael Prysby, a former engineer at DEQ, “were charged with misconduct, evidence tampering, conspiracy and violations of the Safe Water Drinking Act for allegedly altering water test results.” City officials lauded the indictment as a victory in accountability.

However, high-ranking officials are notably absent from the indictment. Governor Rick Snyder, despite factual findings that he prolonged the crisis, was not even questioned during the investigation. The water contamination was proven to be caused by widespread negligence and disregard – shouldn’t the indictment more accurately reflect the breadth of individuals that were responsible in the first place? Were the indicted men acting independently? Or were they merely taking orders from higher ranking officials? If the relatively lower-level employees of the water treatment plant and the DEQ are held responsible, what does that say about the culpability ‘up top’? Flint’s water crisis was obviously caused by mismanagement, whether negligent or purposeful, at all levels. But when indictments are only doled out against a select few in the lower ranks, it is likely that the scope of the investigation is limited. Many are predicting that this is only the beginning of criminal prosecutions, assuming that the investigations of low-level employees will lead to the bigger root causes. The problem, however, is when the investigations come to a dead end, because higher-ranking officials have isolated themselves from any consequences.

The indictment of anyone in this environmental catastrophe is obviously a move in the right direction. However, it is far from over. Rather than taking solace in the fact that someone will be held criminally liable, it is important for us – the public, the media, the citizens of this country – to make sure everyone is held accountable for this crisis.

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Last week, in Molina-Martinez v. United States, the Supreme Court rejected a narrow interpretation of the plain error doctrine that would require a defendant sentenced under the wrong guideline range, but whose sentence would have been within the proper range, to show “additional evidence” beyond the plain error, that the error violated his substantial rights.

In Molina-Martinez, the defendant pled guilty to a crime that appeared to have a guidelines range of 77-96 months and he was sentenced to 77 months. On appeal, he argued for the first time that the  District Court miscalculated his Guidelines range, which should have been 70 to 87 months. The Fifth Circuit agreed but held that the defendant could not satisfy the plain error requirement (F.R.Cr.P. Rule 52(b) – an obvious error that affects “substantial rights.”).  It reasoned that a defendant whose sentence falls within what would have been the correct Guidelines range must, on appeal, produce “additional evidence” to establish beyond the mistake itself to show that the error affected his sentence.  Based on earlier Fifth Circuit caselaw, if a defendant’s ultimate sentence falls within what would have been the correct guidelines range, the defendant must identify “additional evidence” to make that showing.

Most Courts of Appeals have adopted a less demanding standard under which a district court’s mistaken use off the wrong guidelines rang can itself serve as evidence of an effect on substantial rights, without more. See, e.g., United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014) (application of an erroneous Guidelines range “‘runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside’” that range) (emphasis added); United States v. Vargem, 747 F.3d 724, 728–29 (9th Cir. 2014); United States v. Story, 503 F.3d 436, 440 (6th Cir. 2007). These courts recognize that, in most cases, when a district court uses an incorrect range, there is a reasonable probability that the defendant’s sentence would have been different without the error. The Supreme Court agreed, and rejected the “additional evidence” requirement for plain error review.

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The New York Court of Appeals has been busy on the criminal procedure front. Last month it decided several cases, including three that addressed the issue of ineffective assistance of defense counsel. In one, the court held that counsel had been ineffective in failing to move to suppress a gun. In the second and third, the Court held that counsel had not been ineffective in 1) failing to move to reopen a suppression hearing when a detective changed his testimony at trial and 2) failing to object to inflammatory and improper gender based summation comments. The Court essentially found strategic justifications for counsel’s failures, but in split decisions.

In People v. Rashid Bilal, the defendant was charged with Criminal Possession of a Weapon in the Second Degree under N.Y. Penal Law § 265.03(3), based on allegations that he possessed a gun. Without any strategic or other reason, defense counsel failed to move to suppress the gun. The Court held that defense counsel’s failure amounted to ineffective assistance and remanded for a suppression hearing. This is a fairly clear-cut case.

In People v. Roy Gray, where the defendant was charged and convicted of murder in the second degree under N.Y. Penal Law § 125.25(1), the Court reached the opposite conclusion and held that it was not ineffective assistance for the defense lawyer to decline to move to reopen a suppression hearing. Judge Stein, joined by Judge Fahey, dissented.

In Gray, the defendant had moved to suppress three statements: the first, when he had told police he was going to take the blame for the murder because his brother had spent too long in jail, and a second, in writing, after additional Miranda warnings were given, inculpating himself. Both statements were suppressed because of the failure to give adequate Miranda warnings. The People appealed and the Appellate Division reversed, finding that the written statement was admissible because it was attenuated from the initial failure to give adequate Miranda warnings.

At trial, notwithstanding the suppression of the first statement, the defense stipulated that the first statement could be admitted on the theory that it cast doubt on the truthfulness of the written confession. Then, at trial, the detective who had taken the defendant’s statements changed his testimony in a way that raised the issue whether the second statement was a continuation of the first, unlawful interrogation. That is, he testified at trial  for the first time that after the first statement he continued to talk with the defendant for an hour during which time the defendant made a second statement that inculpated him – in substance the same as the subsequent written statement. Even though this testimony would have totally undermined the Appellate Division’s reasoning that the written statement was attenuated from the initial failure to give Miranda warnings, defense counsel did not move to reopen the suppression hearing; instead, he moved to have the detective’s testimony limited to what he had testified to at the hearing – that the first statement was limited to defendant’s intention to falsely confess. The Court recognized that this was a strategic decision, intended to undermine  the impact of the second and written confession, which counsel apparently believed would not be suppressed despite the change in testimony. The Court of Appeals held that this did not constitute ineffectiveness but was instead a reasonable strategic decision.

Judge Stein, in dissent, disagreed. As he saw it, the detective’s altered trial testimony undermined the basis for the Appellate Division’s decision that the second statement was attenuated. Given that the People had stipulated they did not have enough evidence to go forward without the confessions, and given that the People agreed that the written statement “was the culmination of the prior unwarned statements,” the failure to move to reopen the suppression hearing as to the second statement, and the decision to instead rely on the first statement to cast doubt on it – constituted ineffective assistance.

The dissent also disagreed with the majority’s conclusion that defense counsel had not been ineffective in failing to move to reopen because the issue was not a “winning” suppression argument. The dissent agreed that there could be no ineffectiveness where counsel failed to make a motion that has little or no chance of success, here, where “counsel fails to raise a close suppression issue,” that is so important to the proof of his client’s guilt, ineffectiveness is established. It was undisputed that the original Miranda warnings were deficient; there was now new evidence that the police had continued to question the defendant between the first and second statements and that there was “no pronounced break” between the two. Moreover, the decision was not a reasonable strategic one because defense counsel had “nothing to lose and everything to gain” by reopening the suppression hearing. All of the defendant’s statements would have been suppressed.

Finally, in People v. Urselina King, where the main issue argued on appeal concerned whether the court had improperly discharged potential jurors on hardship grounds, the Court affirmed the burglary in the first degree and assault in the second degree convictions under N.Y. Penal Law § 140.30(3) and N.Y. Penal Law § 120.05(2) respectively. With respect to ineffective assistance, the Court held that defense counsel was not ineffective for failing to object to “inflammatory gender-based” statements in the prosecutor’s summation. The effect of the statements was that the viciousness of the attack in question meant it could only have been done by a woman and, at the same time, that the victim, a different kind of woman, was more believable because she filled the “female victim” stereotype. Although finding that this double-barreled gender stereotyping was inflammatory and irrelevant, the majority concluded that the prosecutor’s remarks “were so over the top and ridiculous that defense counsel may very well have made a strategic decision not to object…out of a reasonable belief that the jury would be alienated by the prosecutor’s boorish comments.” The Court concluded that, on the whole, defense counsel rendered effective assistance.

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In two cases, People v. Assad Cedeno and People v. Keith Johnson, the NY Court of Appeals recently held that the defendants were deprived of their Sixth Amendment rights to be confronted with the witnesses against them by inadequately redacted statements of non-testifying co-defendants that were admitted at trial. Because the inadequately redacted statements remained facially incriminating, the convictions were reversed.

In People v. Cedeno, No. 24, 2016 NY Slip Op. 02281 (Mar. 29, 2016), which arose out of a gang fight, the lower court dealt with a statement by a co-defendant describing the defendant as “one of the Latin Kings wearing red and white trunks…[who] pulled out a knife and rushed the whole crowd and then ran over to the victim and started punching him with a small knife.” The statement was redacted to remove the description of the defendant’s clothing.

Judges Piggott and Garcia dissenting, the Court held that despite the redaction the statement remained facially incriminating and violated the defendant’s confrontation rights. The oral statement did not do so, because it contained a reference to a generic Latin King. However, the written version, which also went to the jury,  replaced the description with a  large blank space.  The Court concluded that since the defendant was one of the three co-defendants sitting at the table with the declarant, the statement powerfully implicated him. Presumably the Court was saying that the fact that it could have implicated one of the other defendant “latin kings” at the table did not change the result.

The dissenters would have held  that despite the blank spaces and clear signs of alteration the statement did not cause the jurors to realize that it specifically referred to the defendant.

In People v. Johnson, No. 25, 2016 NY Slip Op. 02282 (Mar. 29, 2016), the co-defendant had testified in the grand jury and gave a false exculpatory statement about what had occurred during the crime, which included a description of the defendant’s role in trying to rob an undercover officer in a buy and bust operation. The grand jury testimony was read into evidence. The Court rejected the People’s argument that the statement could not be inculpatory under Bruton because it offered “perfectly innocent explanation of the evening’s events.” The Court held that the co-defendant’s explicitly incriminating the defendant in possession of the robbery proceeds and in the initial stages of the drug transaction violated the defendant’s constitutional rights, even if the statement was ultimately exculpatory.

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The Syndrome_IG copy smWe are pleased to join investigative reporter Susan Goldsmith and filmmaker Meryl Goldsmith in announcing that their powerful film on shaken baby syndrome, “The Syndrome” will be available everywhere on video on demand starting April 15, 2016. iTunes, DirecTV, In Demand (cable outlets), Amazon Instant and so many more are all distributing the film.

An estimated 1,000 innocent people are currently incarcerated based on doctors diagnosing shaken baby syndrome, a child abuse theory that has been disavowed as “junk science.” The prosecutions, false allegations and devastation of innocent peoples’ lives continues even as the science has dissolved.

Several years ago, in England, the prosecution re-examined a series of its shaken baby convictions and re-evaluated its policies and procedures for handling such cases.  Interestingly, the new wrongful conviction integrity unit in the LA County District Attorney’s Office told California Public Radio that they plan to review shaken baby cases.

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Here is an alert to a new and interesting podcast addressing criminal justice issues.  As described by its creator, Professor David Harris,  Distinguished Faculty Scholar and Professor, University of Pittsburgh School of law:

“Created with production help from WESA, Pittsburgh’s NPR station, the Criminal (In)justice Podcast covers the issues in criminal justice that have taken center stage over the last year and a half: everything from police body cameras to police use of force to implicit racial bias.”  Prof. Harris’s goal is to offer discussion and interviews with nationally prominent guests from law enforcement, civil rights, prosecution and government.

The first season is planned to have 8 episodes, each released on a Tuesday. The first episode was published on March 29, 2016 addressing the issue of police body cams. There are 7 more episodes to look forward to. Learn more about the creative team. Anyone interested can directly subscribe to the podcast. 

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.

The Prison Litigation Reform Act (PLRA) sets up roadblocks for prisoners in civil rights cases that are uniquely harsh including a requirement that prisoners must exhaust all available administrative remedies. This exhaustion requirement, which is not imposed on other civil rights litigants, often keeps litigants with meritorious claims out of court. Recently, in Ross v. Blake, No. 15-339, the Supreme Court took a Maryland case from the Fourth Circuit holding that the exhaustion requirement should be excused if the inmate makes a “reasonable mistake” about whether a particular administrative remedy is, in fact, available.

However, during oral argument last week the Court learned that this issue may not be presented by this case at all. This is because in papers filed with the Court before the case was argued it appeared that Maryland’s complicated and confusing administrative remedies were probably, in fact, unavailable to the inmate after all. Thus, there was no “reasonable mistake” after all. And no need to decide whether if there were such a mistake that would excuse the inmate from the obligation to exhaust.

Based on this new information it appears from the oral argument of the case that the Court will either remand the case or dismiss the case as improvidently granted for review. But even if the case is dismissed or remanded the case has value because the oral argument record available here reveals dramatically the Kafkaesque world of confusing remedies that prisoners must confront and overcome to achieve their day in court. If one needs proof of the lack of wisdom of the PLRA’s exhaustion requirement, and the need to repeal it, look no further.

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In a recent decision by the ICC’s Pre-Trial Chamber I on March 24, 2016, the Court confirmed charges for war crimes for intentionally directing attacks against religious and cultural buildings under Art. 8(2)(e)(iv) in the case of the Prosecutor v. Ahmad Al Faqi Al Mahdi. The defendant is alleged to have committed war crimes in Timbuktu, Mali, between around June 30, 2012 through around July 11, 2012. Already in a press release dated September 26, 2015, the ICC Prosecutor Fatou Bensouda stated that that

Intentional attacks against historic monuments and buildings dedicated to religion are grave crimes. [...] No longer should such reprehensible conduct go unpunished. [...] Such attacks affect humanity as a whole. We must stand up to the destruction and defacing of our common heritage.

The ICC’s Rome Statute Article 8(2)(e)(iv) defines war crimes as

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely any of the following acts: (iv) Intentionally directing attacks against building dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; [...].

The Pre-Trial Chamber I found sufficient evidence to establish substantial grounds to believe that Ahmad Al Faqi Al Mahdi committed the crimes with which he is charged and reasoned, in paragraphs 40-44 of its decision on confirmation of charges, that it is not disputed that the targeted buildings/structures were “dedicated to religion and constituted historic monuments because of their origins and significance, and that none of them constituted a military objective” and that these buildings were “specifically identified, chosen, and targeted by the perpetrators as objects of their attack, precisely in light and because of their religious and historical character.” The Court further reasoned that the article’s prohibition “attaches to the attack per se” regardless of whether the building/structure was or was not destroyed and concluded that the “attacks” within the meaning of the statute also include acts “which did not bring about a complete destruction” of the targeted building or structure.

This reasoning is a step in the right direction when a Court of international stature recognizes the importance of cultural, historical, religious, and national heritage as embodied in buildings and structures and articulates that even a partial destruction will not go unpunished. The Court appears to focus on the reasons that the objects were targeted for their religious and historical importance within the surrounding society, the fact that they did not constitute military objectives, and that their destruction (even partial) was considered very serious by the local populations rather than the level or the intended level of destruction. As such, it would reason that even vandalizing, defacing, or otherwise damaging a building or structure might fall within the statute according to the Court’s interpretation of Art. 8(2)(e)(iv).

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