Tuesday, June 15, 2021

Family of Alton Sterling, the black victim of a fatal police shooting at Louisiana convenience store, settles lawsuit against Baton Rouge for $4.5 million

The convenience store where Alton Sterling died


The family of a black Louisiana man has settled a police-shooting lawsuit against Baton Rouge for $4.5 million. The settlement in the death of Alton Sterling comes about two weeks after news broke about the death of another black man, Ronald Greene, at the hands of the Louisiana State Police, in a case where evidence apparently was covered up for roughly two years. Video suggests Greene was beaten, choked, and tortured at the end of a high-speed chase over an alleged traffic violation. News of the two cases, coming so close together -- in the same locale -- indicates America's policing problem is as intractable as ever, especially in regards to victims of color.

Alton Sterling was fatally shot while he was selling CDs outside a convenience store in 2016. From a report at NBC News:

The family of a Black man who was fatally shot by police in Baton Rouge, Louisiana, announced Friday it has settled a lawsuit against the city for $4.5 million.

Alton Sterling was 37 when he was fatally shot by an officer in 2016. His family filed the suit the next year.

Lawyers for Sterling's relatives said that the settlement would benefit his five children and involve "significant policy changes" for Baton Rouge officers.

"Our hope is that these policy changes, which focus on de-escalation, providing verbal warnings prior to using deadly force and will create a better future going forward for Baton Rouge residents," the lawyers said in a statement.

Sharon Weston Broome, the mayor-president of the city, echoed those remarks, saying in a statement, "As a community, we must work together to implement changes in policy and in our community to ensure that no other families in Baton Rouge will endure this loss, trauma, or heartbreak."

The Baton Rouge Union of Police did not immediately respond to a request for comment Friday evening.

Officer Blane Salamoni was fired and Officer Howie Lake II was suspended in the death.

How could a seemingly innocent incident end in a death? NBC News reports:

Early on July 5, 2016, someone called 911 and reported that a man in a red shirt outside a convenience store had a gun and was acting in a threatening manner, authorities said. Sterling, wearing red, was selling CDs.

Surveillance footage shows Sterling pushing back against the two officers when they appear and attempt to pin him against a car. Lake attempts to shock Sterling with a Taser gun to no avail, and Salamoni then tackles Sterling to the ground.

Salamoni can be heard on the body cam audio yelling profanities at Sterling and then threatening to shoot him in the head.

Sterling appears slightly confused and says, "What I did, sir?"

The shooting occurs shortly thereafter.

 Video provides some clues about the cops' mindset on the matter:

After Sterling is apparently dead, Salamoni can be heard panting, and his hands are seen holding his handgun. He begins going through Sterling's pockets and calls him a "stupid motherf-----" twice.

The U.S. Justice Department and Louisiana Attorney General Jeff Landry declined to pursue charges against the two officers.

Authorities later said Sterling had a pistol in his right pocket and unspecified drugs in his system.

The Washington Post has additional details

Sterling, 37, was shot and killed in July 2016 outside a convenience store where he was selling CDs. Two officers responded to a call about a man threatening someone with a gun and, according to video from the scene, immediately shouted profanities at Sterling while threatening to open fire on him. Although Sterling did have a gun — a loaded .38-caliber handgun found in his right pocket — it was unclear whether he was reaching for it when officers tackled and shot him. (See video at the end of this post.)

Neither of the officers were criminally charged. Blane Salamoni, the officer who fired the shots, was fired from the department in 2018 but, after appealing the decision, was allowed to resign retroactively without compensation or back pay. The other officer, Howie Lake II, was suspended for three days after police officials said he violated the department’s “command of temper” policy.

Sterling’s death was one of several high-profile incidents of police violence that set off a wave of racial justice protests during the summer of 2016 and prompted widespread cries for greater accountability from law enforcement. Hundreds of people were arrested during demonstrations in Baton Rouge. A mural of Sterling was painted at the Triple S Food Mart where he was killed.

In the wake of the fatal shooting, city officials rewrote the police department’s use-of-force guidelines to encourage officers to de-escalate situations when possible and give warnings before using deadly force. The updated guidelines also banned chokeholds and firing into vehicles unless there is an imminent threat.


Monday, June 14, 2021

Claims of ignorance from Sessions and Barr about leak investigation of House Democrats have to be falsehoods, according to former Watergate prosecutor


Bill Barr and Jeff Sessions, under oath


Trump attorneys general Jeff Sessions and Bill Barr are lying when they claim to know nothing about secret warrants to spy on reporters and Democratic members of Congress, among others, a former Watergate prosecutor told MSNBC yesterday. From a report at Raw Story

Former Watergate prosecutor Jill Wine-Banks explained on MSNBC Sunday that there's no way that Attorneys General Bill Barr and Jeff Sessions didn't know about the warrants to spy on reporters, Democratic members of Congress, their staff and families, and [Trump's] own White House counsel.

Barr, Sessions and former Justice Department deputy Rod Rosenstein have all denied they knew of the subpoenas to spy, but Wine-Banks explained that's impossible because something like this would go all the way to the top.

"It may be that the person that they were investigating, had a legitimate predication for the search warrants and that they had some reason to do this," she told MSNBC. "It could have been that he got called by somebody that they were already investigating. It doesn't mean this is normal. It is not normal, and I think the investigation is absolutely critical, holding someone accountable is important to stop this from ever happening again. We can't have members of Congress, the press, and the White House counsel subjected to this. And the reason Don McGahan, of course, is of concern is because he was cooperating with Mueller which made him an enemy of Donald Trump. Donald Trump was calling out [Adam] Schiff, he was calling out [Eric] Swalwell, people who were subject to this search warrant, and he certainly must have felt uncomfortable with his own White House counsel who was cooperating and telling the truth to Mueller. So, that's why it's of concern."

Long-time observers of Alabama politics, who have followed Sessions' machinations as state attorney general and U.S. senator, should not be surprised to learn he has a disconnect with the truth. Sessions' detractors call him "the evil elf" for a reason. How laughable are the claims of ignorance so far? Here is more from Raw Story

Sessions said that he was never briefed on this seizure of records. Barr played fast and loose with the language, saying that he never discussed the leak cases with Trump. That was similar language to Barr's refusal to answer when then-Sen. Kamala Harris (D-CA) questioned him about Trump or anybody else who "asked or suggested" that he open an investigation into his political foes. Barr pretended not to know what the word "suggested" meant and refused to answer.

Host Alicia Menendez asked Wine-Banks if it was possible they didn't have any idea what was going on.

"In my opinion, no, and let me tell you why," said Wine-Banks. "First of all, we had [Osmar] Benvenuto, who was brought in at the recommendation of the U.S. Attorney from New Jersey, who was put in by Barr to replace the New York attorney who he was pushing out. He recommended Benvenuto who came in, and Benvenuto has said -- in a recording, that he briefed Barr at least every other week. So, it is not credible. And if Barr didn't know about this, then Barr is the worst manager, the worst Attorney General ever, because that is his job. The Department of Justice policy requires that there be notice and approval from a higher source. So, it's not something that you can just subpoena a member of Congress' records or a reporter's records without something much more. So, it doesn't pass what I call the 'red face test.' It's like, could I stand up before a jury and say this in front of them without blushing or giggling? The answer is, no, I couldn't."

Sessions' denial is particularly nutty, given this from The New York Times, which broke the story last Thursday

Prosecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

Translation: The leak investigation started on Sessions' watch, and he repeatedly bragged about being a tough guy on leaks, but now he claims to know nothing about what went on. This is a guy who has lied at least three times to Congress about his role in the Trump-Russia scandal, so lying to the press is . . . well, minor-league stuff for this big-league liar.

How uncomfortable could all of this get for Sessions and others? Axios already has labeled it "the emerging scandal of the summer": 

Washington has been served up an unprecedented controversy, and now officials from two branches of government are rushing to get a piece of the scandal spoils.

  • In the spotlight... the Trump-era Justice Department, which seized records from journalists and House Democrats during a leaks investigation over stories about the Russia probe.
  • Now Senate Democrats and the Biden-era Justice Department inspector general are separately launching investigations.

Back in 2017 and 2018, the DOJ obtained a gag order against Apple and subpoenaed the company to hand over data belonging to a dozen people linked to the House Intelligence Committee.

The big picture: "While Justice Department leak investigations are routine, current and former congressional officials familiar with the inquiry said they could not recall an instance in which the records of lawmakers had been seized as part of one," the N.Y. Times reports.

  • The seized records contained no proof of leaks.

The bottom line: The slow drip, drip of stories has now turned into the potential big story of the summer.

Thursday, June 10, 2021

Kansas City settles police-brutality lawsuit for $725,000, where victim survived under facts similar to those in the Minneapolis death of George Floyd

Kansas City officers make an arrest


What might have happened to George Floyd if he had survived his encounter with police brutality in Minneapolis -- if he had lived through officer Derek Chauvin pressing a knee on his neck for more than nine minutes? A recently settled lawsuit in Kansas City, MO, provides a clue.

The Kansas City matter involved circumstances similar to those present in Floyd's death -- except the victim survived, and his lawsuit was settled for $725,000. Tom Porto, of the Popham Law Firm, represented the teen and his family in the civil matter.From a report at the Columbia Missourian

Kansas City has agreed to a $725,000 settlement of an excessive force complaint filed after a police officer allegedly forced his knee onto the neck of a teenager who prosecutors said was not resisting arrest.

The settlement arises from a confrontation in a fast-food restaurant in November 2019. The teenager was in a car that sped away from officers but eventually stopped. The teenager and a man inside got out, put their hands in the air and got on their knees, according to court documents.

Although the teen was not resisting, Police Sgt. Matthew Neal put a knee on his neck, causing him to have difficultly breathing, prosecutors said. He was treated for cuts, bruises and broken teeth. He was not charged with any crime arising from the confrontation.

The officer, however, does face criminal charges:

Neal was charged in August with third-degree assault in the case. He has pleaded not guilty. He has been suspended with pay since the charge was filed. Another officer who was on the scene, Dylan Pifer, was not criminally charged and remains on active duty.

The settlement was approved Nov. 17. The Kansas City Star reported the amount after filing an open records request.

This is not an unusual outcome -- in fact, KC cops seem to be slow learners -- as a Kansas City Star editorial makes clear, under the headline "A new $725,000 settlement? KCPD excessive force cases are costing taxpayers millions":

Kansas City’s agreement to pay $725,000 to settle a police excessive force case is an outrage, another sad episode in an all-too-familiar pattern at police headquarters downtown.

The payment, agreed to in November, compensates the family of a teenager stopped by officers in November 2019. The teenager emerged from a car after a short chase, and was allegedly assaulted by Sgt. Matthew Neal of the Kansas City Police Department.

The young man’s teeth were broken, according to prosecutors, and his head was cut open. Neal allegedly knelt on the suspect’s neck until the young man said he was unable to breathe.

Other officers stood and watched. Neal has been charged with felony assault.

The incident was “an abomination,” Mayor Quinton Lucas said this week. Last year, we said it revealed a crisis in the Kansas City Police Department.

The available evidence shows the family is entitled to payment for the teenager’s suffering, and the Board of Police Commissioners has approved the settlement.

But the payment won’t come from commissioners’ pockets. It won’t come from Police Chief Rick Smith’s pocket. It won’t come from Neal’s pocket, even though he continues to draw a salary from taxpayers while facing criminal charges.

No, the cost of Neal’s violent, foolish act will be paid by taxpayers (some of it may come from the state). And because taxpayers are paying the bills, the police department has little incentive to improve its record or fix its brutality problem. Instead, Smith and others clearly see the payout as a mere cost of doing business.

This isn’t the first time. Last year, The Star revealed $6.3 million in police settlement payments related to the actions of just one former officer. Millions more have been paid for other claims.

Reducing or eliminating excessive force payouts must be at the top of the department’s agenda this year. To do that, of course, the Kansas City Police Department must reduce or eliminate police brutality.

Tuesday, June 8, 2021

Was former Drummond exec David Roberson's guilty verdict driven largely by trial court's improper decision to try him jointly with Balch & Bingham lawyer?

David Roberson


Was former Drummond Company executive David Roberson found guilty in the North Birmingham Superfund bribery case because he was tried jointly with a lawyer from Balch & Bingham -- the very lawyer who had falsely assured Roberson his actions, and those of his company, were fine and legal?

That seems to be the primary question raised by an opinion from the U.S. 11th Circuit Court of Appeals, upholding the convictions of Roberson and Balch attorney Joel Gilbert. The appellate ruling makes clear that Roberson's attorneys timely moved to sever the two trials, but District Judge Abdul Kallon -- apparently in the interest of "judicial economy" -- ruled for joinder. The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief stating that trials should be conducted separately when one defendant stands to be prejudiced by a joint proceeding, especially where an attorney and client are tried together.

It appears the 11th Circuit largely ignored the amicus brief in upholding Roberson's conviction. (More on the NACDL brief in an upcoming post.) But the nagging question remains: Was a man found guilty because of a joint trial, when he likely would have been acquitted if he had been tried alone? Is "judicial economy" more important than dispensing justice, than getting it right? Those seem to be the kind of troubling questions that produce mixed opinions in legal circles and probably merit en banc review of the full 11th Circuit -- and perhaps, if necessary, clarification from the U.S. Supreme Court. Here's how the 11th Circuit framed the issue in its 37-page opinion:

Roberson . . . argues that the district court should have severed the trial pursuant to Federal Rule of Criminal Procedure 14(a), and failure to do so led to events requiring a new trial. Roberson states that because of joinder he was unable to properly present a reliance on the advice-of-counsel defense. Roberson argues that certain evidence was excluded at trial because it inculpated Gilbert, even though that evidence supported Roberson’s defense that he relied on counsel, Gilbert, in believing his actions were legal. Specifically, the trial court excluded a portion of an FBI agent’s written summary of Roberson’s interview with the FBI in which Roberson states that he had checked with Gilbert to ensure “there was no problem with what they were doing.”

Let's take a closer look at the evidence that was excluded, because Roberson was jointly tried with Gilbert, compared to FBI evidence the jury was allowed to see. First, here is the evidence that was allowed:

The full passage at issue, with the portions excluded at trial underlined, states:After the Hubbard trial, Roberson considered what they were doing, i.e., contracting with a state representative, in light of the ethics law but determined that the area targeted by the campaign was not in Robinson’s district. Roberson stated that they (Drummond) have always been very careful, and he (Roberson) has a reputation to maintain. Roberson had a conversation with Gilbert about ethics considerations.

Here is the underlined portion that was kept from the jury:

Roberson had a conversation with Gilbert about ethics considerations. Roberson wanted to know if it was a problem for him (Roberson) to be associated with the effort because he was a lobbyist. Gilbert later told Roberson that he checked with Greg Butrus and Chad Pilcher at Balch, and there was no problem with what they were doing.

What are the legal issues in play here? This is how the 11th Circuit explains them:

Roberson claims this exculpatory evidence was critically important to his advice-of-counsel defense. Roberson also argues that the exclusion of portions of the FBI interview distorted the meaning conveyed by the admitted portions and rejects that any other evidence presented at trial was curative of this omission as the government undermined that evidence in its closing . . . . Although Roberson raised the motion to sever early in the district court’s proceedings, we focus first on the district court’s later denial of a motion for a new trial because if the district court was correct in denying the motion for a new trial then “its earlier rulings not to sever–when it had even less evidence of potential prejudice before it–were necessarily correct.” Blankenship, 382 F.3d at 1121–22. In evaluating whether a motion for a new trial should have been granted, first the court must assess whether there is a risk of prejudice. See Zafiro v. United States, 506 U.S. 534, 538–40 (1993). Next the court must ascertain whether severance was the necessary remedy, as “[t ]here are only two circumstances in which severance is the only permissible remedy[;]” (1) when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants,” or (2) to “prevent the jury from making a reliable judgment about guilt or innocence.” Blankenship, 382 F.3d at 1122–23 (quoting Zafiro, 506 U.S. at 539).

That raises three key questions: 

(1) Was there a "serious risk" of prejudice from Roberson being tried with Gilbert? Answer: Of course. Even the 11th Circuit goes on to admit as much:

(2) Was there a serious risk that a joint trial would compromise a specifiic trial right of one of the defendants (in this case, Roberson)? You can read the underlined passage above, which was excluded from the jury, and see it did, in fact, ruin Roberson's advice-of-counsel defense. You also can see that Roberson's attorneys were correct when they argued the allowed passage was pretty much meaningless when not accompanied by the disallowed passage. Heck, the allowed passage contains a reference to "Hubbard," and some jurors might not even have known what that meant. The disallowed passage goes directly to Roberson's question to Gilbert about actions he and Drummond were taking, were they legal -- but the jury never heard it, wiping out the advice-of-counsel defense that likely would have led to a Roberson acquittal.

(3) Was the jury prevented from making a reliable judgment about guilt or innocence? Well, the jury was prevented from hearing a key portion of Roberson's defense, so the answer clearly is yes.

How did that happen? The 11th Circuit explains, sort of:

Roberson argues that pursuant to the rule of completeness, but for the fact that Gilbert was his co-defendant, the omitted passage would have been read into evidence.See FED.R.EVID. 106. Roberson claims this exculpatory evidence was critically important to his advice-of-counsel defense. . . .  

The Confrontation Clause prohibits the admission of a non-testifying defendant’s confession if that confession directly inculpates another defendant. See Bruton v. United States, 391 U.S. 123, 126 (1968). The district court redacted the portions of the FBI’s Roberson interview at issue pursuant to Bruton

Do the three issues and questions noted above, coming straight from the 11th Circuit's opinion, override Bruton?     And what about that rather important issue of prejudice? The 11th Circuit seems to admit it                  existed, because of the joint trials, but it goes into a litany of what sound like excuses to defend         Kallon's actions and ultimately responds with a collective shrug:

The only evidence Roberson claims he was prevented from introducing at trial were the redacted portions of the FBI report. Although this evidence lends additional support to Roberson’s advice-of-counsel defense, its exclusion is not misleading with respect to the portion that was admitted, given the other evidence presented, and essentially was cumulative. 

Translation: Yes, the advice-of-counsel evidence was important, but its exclusion was not THAT big a deal.

In sum, the exclusion was not so prejudicial as to compromise Roberson’s ability to present his defense or deny him a fair trial.

Translation: Yes, Roberson was prejudiced, but a little bit of prejudice is fine in a federal criminal case. 

The 11th Circuit's casual approach to exclusion of a key part to Roberson's defense runs counter to the trial court's jury instruction, as noted in Footnote 27 of the 11th Circuit's ruling:

As the jury instructions noted, “[e]vidence that a defendant in good faith followed the advice of counsel would be inconsistent with the unlawful intent required for each charge in this case.”

In everyday language: If Roberson had not been tried with Gilbert, he would have been able to raise a complete advice-of-counsel defense, and that likely would have shown he did not have the unlawful intent required for a criminal conviction.

The Roberson case teaches, essentially, that we now have a criminal "justice" system that tolerates prejudice, that "judicial economy" trumps fundamental justice, and exclusion of a critical defense is perfectly fine.

Have we really sunk that low? Will Americans continue to tolerate this in courts that are taxpayer funded, but largely unscrutinized?