CrimProf Blog

Civil complaint filed against San Diego officer in police dog's death Criminal Charges Possible

SAN DIEGO -- City Atty. Michael Aguirre filed a civil complaint Friday in San Diego Superior Court seeking damages from Officer Paul Hubka, whose police dog died of heat stroke after being left in Hubka's squad car.

Aguirre wants Hubka to pay the cost of acquiring and training a replacement for his dog. He said the cost exceeds $25,000. "Since 9/11, police dogs have become hard to replace because of the high demand for them worldwide," said Executive Assistant City Atty. Don McGrath.

Aguirre's announcement comes as the San Diego County district attorney is determining whether to file a criminal charge against Hubka under a law that makes it a crime to leave a dog in a car on a hot day. Hubka's dog, a 5-year-old Belgian Malinois named Forrest, died when it was left in his squad car on a day when the temperature exceeded 100 degrees.

The Belgian Malinois, a medium-size dog with great stamina and intelligence, is used by police departments across the U.S. Like the San Diego department, some departments get the dogs from breeders in Europe.

Aguirre announced Monday that he would not approve the payment of $50,000 to Hubka, his share of a settlement of a lawsuit filed by three officers claiming the city owed them extra pay for their canine duties. Hubka's attorney protested that the payment had already been approved by the City Council and was unrelated to the dog's death. [Mark Godsey]

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Sacramento Hails Drop In Murdered Teens, Progress Vs. Gangs

The streets of Sacramento are claiming fewer young people.

In what authorities say may be a fragile sign of progress, fewer Sacramento County teenagers have been slain in 2008 than in any year going back at least a decade.

And the promising signs do not end there. According to Sacramento police and the county Sheriff's Department, the number of teenage shooting victims is down by about one-third over last year.

In the area's two largest law enforcement jurisdictions – the city of Sacramento and the neighborhoods of Sacramento County patrolled by the Sheriff's Department – the drop may be the residual effect of increased prevention efforts and a shift toward more aggressive anti-gang tactics used by law enforcement, officials said.

Other police agencies across the region reported little or no change in their already low levels of youths involved in violent crime but said efforts to engage young people – especially in schools and those arrested for low-level crimes – are working.

"We're doing something right, and I think it's not just one thing," Sacramento Police Chief Rick Braziel said. [Mark Godsey]

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Cross Dressing and the Criminal

Drawing upon cultural studies, literary theory, and criminal law, Cross Dressing and the Criminal argues that cross dressing as a metaphor, as a sign, as a practice has the potential to subvert not only expectations about gender, but also about race, sexuality, class, and status. Taking up Judith Butler's suggestion that we could all benefit from serious play, and turning to the criminal arena, this essay conceptualizes a justice system in which officers, prosecutors, jurors, and judges engage in imaginative acts of cross dressing in cases where implicit biases may be present. Such imaginative acts, the essay argues, would not only have the salutary effect of foregrounding such biases. It would also allow decision-makers to override them. [Mark Godsey]

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Crime, Legitimacy, and Testilying

Crime, Legitimacy, and Testilying draws upon Tom Tyler's highly influential legitimacy theory (that perceptions of legitimacy play a crucial role in inducing voluntary compliance with the law) to make the novel but utilitarian argument that more policing of the police - by holding officers accountable for sanctionable and criminal conduct - is likely to have the counter-intuitive effect of reducing crime in the general population. The Article makes this argument by following Mari Matsuda's suggestion and looking to the bottom, i.e., adopting the perspective of those in minority and poor communities. From this (disad)vantage point, police actions that are normally associated with over-enforcement, such as racial profiling and the use of excessive force, also signal a type of under-enforcement. Except in the most egregious cases, law enforcement officers can engage in otherwise sanctionable conduct usually without fear of consequences; in short, officers themselves often operate in and benefit from a zone of under-enforcement. This in turn undermines police legitimacy and induces non-compliance with the law.

As a case in point, the Article turns its focus on "testilying" (the name given to police perjury), the paucity of prosecutions, and the resulting legitimacy failure. The Article then proposes reforms to reduce the occurrence of "testilying" and punish its offenders. The Article's conclusion, which should be acceptable to civil libertarians and law and order advocates alike, is that the collateral benefits of such increased policing of the police far outweigh the drawbacks. In fact, increased policing of the police would not only have the collateral consequence of reducing crime across the board. It would also benefit the police themselves by leading to safer and better policing. [Mark Godsey]

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U.S. Prosecutors Feel the Heat, Want Protection

In the wake of three murders and the recent attack on a federal prosecutor in a New York courtroom, a group representing the nation's federal prosecutors is calling for stepped-up security, including home alarms, self-defense training and the right to carry firearms.

Additionally, the National Association of Assistant U.S. Attorneys, which represents the country's 5,400 federal prosecutors, wants secure parking for prosecutors, particularly those who handle dangerous criminal cases.

"Statistically, we are threatened more than judges," said Steve Cook, chairman of the NAAUSA security committee and a Tennessee federal prosecutor. "Security is a very important issue for us."

In a recent NAAUSA survey (.pdf) on security issues answered by 1,257 federal prosecutors -- or 23 percent of the total work force -- 46 percent said they had been threatened or assaulted due to their job, and 81 percent said someone in their office had been threatened.

The survey showed that 78 percent rated secure parking as very important, and 42 percent rated home alarms very important. Eighty-one percent of respondents believe Assistant U.S. Attorneys should be authorized by the Department of Justice to carry firearms if they so choose.

NAAUSA officials last month met with Deputy Attorney General Mark Filip about security concerns for prosecutors and shared the survey results with him.

Additionally, the group plans to step up lobbying efforts next year for a bill to fund some of their proposals. Heavy lobbying last year led to prosecutors being partially included in the Court Security Act of 2007, which was originally intended only for judges.

Under the legislation, prosecutors will not get the same security measures as judges, such as home alarms; however they will now be protected from having their driver's license information made public.

"Prosecutors are on the front lines like federal agents; they are the face of federal law enforcement," said Peter Prieto, a former Miami federal prosecutor and chairman of Holland & Knight's litigation practice. "They are dealing with pretty dangerous people and have a legitimate gripe. For the job they do, they deserve more protection." [Mark Godsey]

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In lieu of DNA evidence, exoneration proves tougher

SAN DIEGO — It took more than four years of pure grunt work to free Timothy Atkins.

There was no DNA evidence to support Atkins' claims of innocence in a fatal Los Angeles carjacking. Instead, students at California Western School of Law pored over old police reports and searched for one critical witness whose false testimony had led to Atkins' 1987 conviction.

PHOTOS: Freed without DNA evidence

More than any other victory in the campaign to free the innocent, the work that secured Atkins' release symbolizes where the movement is heading, some of its key members say. Dogged investigative efforts such as this are likely to become more common, they say, as DNA is being used up in some of the oldest post-conviction cases, primarily because of uneven efforts by states to preserve it.

NATION: DNA not kept in half of states

A shortage of DNA evidence would remove the most dramatic and clearest path to exoneration.

"This is very much an untold story," says Justin Brooks, executive director of the California Innocence Project, which engineered Atkins' release. "We're seeing very few DNA cases where testing is a possibility."

Of the project's pending investigations, 90% are non-DNA cases. Instead, other evidence, such as new witnesses, is needed to prove innocence. Nearly 10 years ago, half of its cases depended on DNA testing.

Jeff Blackburn, chief counsel for the Innocence Project of Texas, fears Texas cases dependent on DNA could "run out" within a year. Of the 700 cases his group believes have potentially credible claims, 225 would be heavily weighted on the outcome of DNA analysis — if the material exists. The rest involve issues such as witness identification problems and coerced confessions.

Some advocates' concerns over the availability of DNA have injected tension into a movement to free the wrongfully convicted.

Barry Scheck, co-director of the Innocence Project, a national group whose work relies almost exclusively on DNA testing, says enough cases exist to sustain a decade's worth of potential exonerations. His group says the DNA caseload has increased from 141 in 2004 to 278 this year.

"These cases are not slowing down," he says, adding his colleagues "are not looking hard enough." He says DNA cases will decline eventually — but not yet. [Mark Godsey]

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Inmate 'too fat for execution'

COLUMBUS - A death row inmate scheduled for execution in October says he's so fat that Ohio executioners would have trouble finding his veins and that his weight could diminish the effectiveness of one of the lethal injection drugs.

Lawyers for Richard Cooey argue in a federal lawsuit that Cooey had poor veins when he faced execution five years ago and that the problem has been worsened by weight gain.

They cite a document filed by a prison nurse in 2003 that said Cooey had sparse veins and that executioners would need extra time.

"When you start the IVs come 15 minutes early," wrote the nurse who examined Cooey. "I don't have any veins."

The lawsuit, filed Friday in federal court in Columbus, also says prison officials have had difficulty drawing blood from Cooey for medical procedures. Cooey is 5 feet 7 inches tall and weighs 267 pounds, according to the lawsuit.

Cooey, 41, was sentenced to die for raping and murdering two female University of Akron students in 1986. In April, he lost a challenge to Ohio's lethal injection process when the U.S. Supreme Court said he had missed a deadline to file a lawsuit.

Cooey's execution is scheduled for Oct. 14. He would be the first inmate put to death in Ohio since Christopher Newton was executed last year for killing a prison cellmate.

It would also be the first execution in Ohio since the end of an unofficial national moratorium on executions that began last year while the U.S. Supreme Court reviewed Kentucky's lethal injection procedure. [Mark Godsey]

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Texas Executes José Medellín

In a case that has drawn international attention, Texas executed José E. Medellín on Tuesday night in defiance of an international court ruling and despite pleas from the Bush administration for a new hearing.

The execution came just before 10 p.m. Central time, shortly after the United States Supreme Court denied a last request for a reprieve. Protesters for and against the death penalty clamored in the rain outside the Huntsville Unit, about 70 miles north of Houston, where Mr. Medellín was executed by lethal injection.

“I’m sorry my actions caused you pain,” he said to the witnesses present. “I hope this brings you the closure that you seek. Never harbor hate.”

Gov. Rick Perry, a Republican, rejected calls from Mexico and Washington to delay the execution, citing the torture, rape and strangulation of two teenage girls in Houston 15 years ago as just cause for the death penalty.

Mr. Medellín and five other teenage boys in his street gang took part in the rape and murder of the girls, Elizabeth Pena, 16, and Jennifer Ertman, 14. The gang raped the girls for an hour, then strangled them. Their corpses were found two days later.

Two other members of the gang were also sentenced to die. Two had their sentences commuted to life in prison. The sixth, Mr. Medellín’s brother, Vernacio, is serving a 40-year sentence.

Mr. Medellín’s case has become the focal point of a dispute between Mexico and the United States over whether some Mexicans have been denied fair trials because they were never given an opportunity to talk to a consul. A 1963 treaty requires foreigners accused of crimes to be given that opportunity.

Over the last five days, Mr. Medellín’s lawyers tried to stop the execution by arguing to the Supreme Court that it should be put off until Congress had a chance to pass pending legislation that would require a review of similar cases. They argued that Mr. Medellín would be deprived of life without due process if he died before Congress acted.

But the court, in a 5-to-4 decision, said the possibility of Congressional action was too remote to justify a stay. Justice Stephen G. Breyer wrote in dissent that to permit the execution would place the United States “irremediably in violation of international law and breaks our treaty promises.”

Read full article here. [Brooks Holland]

Oklahoma Co. Sheriff defends jail's conditions

A Justice Department report rips the Oklahoma County jail as a chaotic and largely unsupervised den of "unconscionable” violence, abuse and medical neglect.

Detailed in the federal report are jail deaths, excessive use of force and a "disturbing” incident in which a pregnant woman was handcuffed to a rail for 10 hours while giving birth to a premature baby.

The child died at a metro-area hospital.

The year-old report was delivered to Oklahoma County officials last week, and Sheriff John Whetsel quickly responded Monday that most of the problems the agency found have already been corrected.

"I am confident that our work to resolve these issues will satisfy the concern expressed by the Department of Justice,” Whetsel said. "I have no problem in telling family members that their loved ones are safe.”

He added, "I can tell you this report is one year old. We have made the corrections.”

However, the seriousness of the report led the U.S. Marshals and Immigration and Customs Enforcement to transfer 160 federal inmates from the Oklahoma County jail over the weekend to jails in Tulsa and Grady counties until the issues are officially resolved.

The report details excessive inmate-on-inmate violence and use of force by jail staff, an unsanitary kitchen with birds and insects, lack of clothing and showers, several fire hazards and virtually no mental health treatment. There is also an inadequate investigatory process to review deaths and other serious incidents, according to the report.

A spokesperson for the Justice Department could not be reached for comment late Monday.

A spokesman for U.S. Attorney John Richter said the department's local office was reviewing the letter sent to the county and had no comment. [Mark Godsey]

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Oxbow empty as jail crowds

Woodrow Burton is a "frequent flier" in the criminal-justice community. At 56, Burton has amassed a long history of arrests in Salt Lake County. But some of those busts have come without one thing: jail time. In a three-year span, Burton was nabbed 18 times, hauled to the county jail and released without ever spending a minute behind bars.

He isn't the only one who has had a hard time getting a bed at the jail. The lockup has turned away 10,167 other arrestees, according to a Salt Lake Tribune review of jail records between April 2005 and April 2008.
    Meanwhile, bunk space inside the jail has grown so cramped that the Sheriff's Office absolved the sentences last weekend of 14 inmates, including some class A misdemeanor offenders, to relieve the overcrowding pressure.
    That release could have profound policy implications at the County Council, which will weigh Tuesday whether to reopen the minimum- to medium-security Oxbow jail.
    "We are at a critical threshold," Democratic Mayor Peter Corroon said. "It is time that we prepare Oxbow to be reopened."
    The squeeze on jail space has troubled the county for years. But Sheriff Jim Winder said the problem has intensified, spurring early releases like the ones last week.
    The county's population continues to climb. And crime has shot up with it. [Mark Godsey]

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State Medical Examiner Fired

WLBT has learned Dr. Steven Hayne will no longer be doing medical examinations for the state of Mississippi.

Hayne has conducted 80% of all criminal autopsies in Mississippi for more than 20 years.

We're told Dr. Hayne performed his last autopsy early Monday morning and received notice of his termination via fax at his Brandon office at noon.

Hayne has come under fire from the Innocence Project, which investigates cases of people wrongfully convicted of crimes.

Earlier this year, Kennedy Brewer and Levon Brooks were cleared in two separate child murders they were wrongfully convicted of in the 1990's. Hayne conducted the autopsies in both cases.

The Innocence Project asked the state board of medical licensure to revoke Hayne's license accusing him of providing false and misleading autopsy reports and testimony in criminal prosecutions.

We went to Hayne's office in Brandon, Pathology Consultations, Inc., for comment, but we were told by his assistants, he was not in at the time. Hayne did not return our calls for comment.

Sources tell (WLBT) Dr. Hayne has 90 days to get all of his autopsy reports in order and submitted to the Department Of Public Safety.

Mississippi has been without an official state medical examiner for more than a decade, but Hayne has served as designated pathologist.

Angie Underwood, public affairs spokesman for the Department of Public Safety, declined comment only saying all questions would be answered at a press conference to be held at 1:30 Tuesday afternoon at public safety headquarters. [Mark Godsey]

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Feds Charge 11 in Massive Identity Theft Scheme

The Justice Department said on Tuesday that it had charged 11 people in the theft of tens of millions of credit and debit card numbers of customers shopping at major retailers, including TJX Companies, in one of the largest reported identity-theft incidents on record.

The United States Attorney in Boston said those charged were involved in the theft of more than 40 million credit and debit card numbers.

TJX, of Framingham, Mass., which owns the Marshall’s and TJ Maxx chains, was the hardest hit by the ring, acknowledging in March 2007 that information from 45.7 million credit cards was stolen from its computers.

The charges focus on three people from the United States, three from the Ukraine, two from China, one from Estonia and one from Belarus.

The authorities said that the scheme was spearheaded by a Miami man named Albert Gonzalez, who hacked into the computer systems of retailers including TJX, BJ’s Wholesale Club, OfficeMax, Boston Market, Barnes & Noble, Sports Authority, Forever 21 and DSW Inc. The numbers were then stored on computer servers in the United States and Eastern Europe.

They then sold the information to people in the United States and Europe, who used it to withdraw tens of thousands of dollars at a time from automated teller machines, the authorities said.

“This case clearly shows how strokes on a keyboard with a criminal purpose can have costly results,” Michael Sullivan, the United States attorney in Boston, said in a statement. “Consumers, companies and governments from around the world must further develop ways to protect our sensitive personal and business information.”

Read full article here. [Brooks Holland]

Federal Death Penalty Panel

As part of the annual meeting of the American Bar Association, the New York City Bar Association will host a panel on "The Crisis in the Federal Death Penalty," on Monday, August 11, from 10 a.m. to noon.  Besides myself, the panelists will be Hon. Frederick Block, U.S. District Judge, Eastern District of New York; Loretta E. Lynch, former U.S. Attorney, Eastern District of New York and currently a partner at Hogan & Hartson; and federal death penalty practitioner Jean Barrett of Ruhnke & Barrett.

The panel will explore the increase in federal death penalty prosecutions over the past eight years, especially in non-death penalty States.

The panel discussion will take place at the New York City Bar Association at 42 West 44th Street, between 5th and 6th Avenues. [Mike Mannheimer]

Gotti Back in Court

John A. Gotti has been charged with conspiracy for his role in a sprawling cocaine trafficking operation and in three mob-related killings in 1980s and ’90s, the United States attorney’s office in Tampa, Fla., announced on Tuesday.

Mr. Gotti, 44, who headed the Gambino crime family for a time, was arrested at his home in Oyster Bay, N.Y., early Tuesday morning on the federal racketeering and murder conspiracy charges, and was expected to be arraigned in Manhattan federal court.

Five others suspects were also charged in the wide-ranging racketeering indictments, Assistant United States Attorney Robert O’Neill said at a news conference in Tampa. He said all five — identified as John A. Burke, James V. Cadicamo, David D’Arpino, Michael D. Finnerty, and Guy T. Peden — were members of the Gambino organization.

Mr. O’Neill said the alleged criminal acts involved “the Gambino crime family reaching out to the Tampa Bay area,” and that the investigation had ranged widely, including work by federal investigators in New York, New Jersey, Miami and Philadelphia as well as Tampa.

If convicted, Mr. Gotti and the five others could be sentenced to life in prison.

Mr. Gotti has been prosecuted four times before on charges related to organized crime; he pleaded guilty in the first case but contested the later charges, resulting in three mistrials.

In New York, a lawyer for Mr. Gotti, Seth Ginsberg, said of the latest charges, “We’re confident that there is no strength to the allegations and that he will prevail once again.”

But Randy M. Mastro, a former deputy mayor under Rudolph Giuliani, said: “They’re old crimes, but the defense he used the last time — that he resigned from the mob — doesn’t work in this case. There’s no statute of limitations on murder.”

Mr. Ginsberg said that his client would probably be transported to Tampa quickly for arraignment.

Read full article here. [Brooks Holland]

3rd Circuit Rules Media Has Right to Juror Names

In a ruling that could have far-reaching effects on the handling of high-profile trials, the 3rd U.S. Circuit Court of Appeals ruled Friday that the media has a presumptive right of access to the names of jurors, and that a Pittsburgh federal judge erred when he sought to empanel an anonymous jury in the corruption trial of former Allegheny County coroner Cyril H. Wecht.

"The prospect that the press might publish background stories about the jurors is not a legally sufficient reason to withhold the jurors' names from the public. Although such stories might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process," 3rd Circuit Judge D. Brooks Smith wrote in United States v. Wecht.

The court's 118-page decision included a lengthy dissent by Senior 3rd Circuit Judge Franklin S. Van Antwerpen that said the ruling "effectively creates a new constitutional right" and "sets a precedent of permitting our court to micro-manage trial procedures established by the district courts."

Van Antwerpen complained that "requiring district courts to bow to media demands to know the names of prospective jurors would certainly impair the public good in many cases."

For a more in-depth analysis of the Wecht opinion, check The Legal Intelligencer later this week.

The decision was handed down just one business day before the same three-judge panel is scheduled to hear oral arguments in Pittsburgh today on the issue of whether all charges against Wecht should be dismissed on double jeopardy grounds as a result of the procedures followed by the trial judge in declaring a mistrial in April when the jury said it was deadlocked.

Wecht's defense team, led by attorneys Richard L. Thornburgh and David R. Fine of K&L Gates, argues in the appeal that U.S. District Judge Arthur J. Schwab denied Wecht's right to object when the judge declared a mistrial and immediately scheduled a retrial in the presence of the not-yet-discharged jurors.

In their brief, the defense team argues that the "right to be free from double jeopardy mandates that a district judge exercise 'scrupulous' and 'extraordinary' care to be certain that there is no alternative to a mistrial."

The Federal Rules of Criminal Procedure mandate an inquiry by the judge prior to declaring a mistrial, they argue, in order to "give the defendant an opportunity to dissuade a judge from granting a mistrial even when doing so would not be an abuse of discretion." [Mark Godsey]

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Gathering seeks ways to ease inmates back into society

Local leaders discussed the issue and different approaches to ease the transition during yesterday's kickoff of the National Forum on Criminal Justice and Public Safety, which continues through tomorrow at the Marriott Louisville Downtown.

The forum, whose theme is "No More Victims -- Standing Up to Violent Crime," will have workshops on various topics, including gang violence, campus security and using technology to fight crime.

Yesterday's presentation focused on partnerships between local, state and federal agencies.

Stephen Smith, executive director of the Louisville Metro Re-entry Task Force, said his group began by identifying resources in the community and getting different agencies to communicate.

"No one had tried to do that effectively," Smith said. "Everyone seemed to be acting independently."

The task force also created a round-the-clock hot line for former inmates to call for help with social services, emotional support, substance abuse treatment and other issues.

"It's incumbent upon all of us to give people a fair chance to succeed," Smith said.

Mayor Jerry Abramson, who was the moderator of yesterday's presentation, said about 2,000 Louisvillians are released from incarceration annually, and almost half of them come from the six ZIP codes: 40203, 40210, 40211, 40212, 40213 and 40218.

Yesterday's other main speaker, the Rev. Roosevelt Lightsy Jr., is community liaison for the Newburg Justice Reinvestment Pilot Project.

Lightsy, who is working with local organizations and clergy in the Newburg area, said inmates have a lot to deal with upon release.

"How do you come home to a family that you have devastated?" he asked. "How do you keep motivated and positive" and avoid backsliding into old behaviors?

One possible solution Lightsy has developed is a community garden project. It allows the Newburg Youth Council, which Lightsy and his fellow activists also developed, to work with ex-inmates tending a vegetable garden.

He said the project is a valuable experience and common ground for the ex-inmates and the youths, many of whom have relatives in prison.

Lightsy's program also helps ex-inmates find housing, jobs and support services, such as mental health counseling and substance-abuse treatment.

If the Newburg effort succeeds, it has the potential to be used in other areas. [Mark Godsey]

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SETON HALL LAW STUDENTS REVEAL GOVERNMENT’S SYSTEM FOR RELEASE OF GUANTÁNAMO DETAINEES

Press Release

August 4, 2008

Contact:

Janet LeMonnier –    973-642-8724 (office) – 973-985-3165 (cell) – lemonnja@shu.edu

Mark Denbeaux –     201-214-6785 (cell) – denbeama@shu.edu
Joshua Denbeaux –   201-664-8855 (office) – 201-970-6534 (cell)

Decision Based on Nationality, Not Level of Danger: Detainees with Strongest Ties to Al-Qaeda and Taliban Released as Quickly as Those with Weakest Connections

Newark, NJ —Today Seton Hall Law delivered a report to the Senate Judiciary Committee that reveals the U.S.government decided to release detainees at GuantánamoBayaccording to their nationality rather than to the strength of their ties to terrorist groups or to the presumed threat they presented to Americans here and abroad.

In his written testimony to the Committee, Professor Mark P. Denbeaux, director of Seton Hall Law’s Center for Policy and Research stated, “…the Center sought to determine how evidence gathered against any given detainee influenced the decision whether to release him. Center researchers expected to find that the detainees who presented the greatest threat would have been released last, or would still be held at Guantánamo. 

Center analysis shows that was not the case. The only significant correlation to one’s being released, the date of his release, and status upon release, is the nationality of the detainee. Those from Afghanistan, Pakistan, or Saudi Arabia were more likely to be released, and more quickly.”

Profile of Released Guantánamo Detainees: The Government’s Story Then And Now, the Center’s eleventh Guantánamo Report, is based entirely on the government’s own documents, most of which were procured through Freedom of Information Act suits. The prior Reports have been cited by the Senate Armed Services Committee, the House Armed Services Committee, the House Appropriations Committee, and the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security; and introduced into the Congressional Record.

For this report, the culmination of nearly three years of analysis, Center students employed a painstaking process to identify by name the detainees who were released and their date of release, and then correlated that release date against the Department of Defense’s classification of detainees as “fighters,” “members,” or “associates” of Al-Qaeda and the Taliban.

By November 2006, 45% of the 759 detainees ever held at Guantánamo Bay

were released. In 2006 the Center issued a report concluding that more than 55% of Guantánamo detainees were never alleged to have committed hostile acts against US or Coalition forces; 60% of all detainees were nothing more than associated with al Qaeda or the Taliban and no more than 8% of those were accused of being fighters.

Current report findings:

Presumed Threat of Released Detainees

The 8% of detainees alleged to be fighters were released at the same rate as the 60% alleged to be merely associated with terrorist groups.

Alleged fighters have been released at a rate greater than that for alleged members and associates.

Fighters were released an average of 43 days earlier than detainees merely associated with a terrorist organization, and 57 days earlier than those who were members of a terrorist organization.

Nationality of Released Detainees

Guantánamo detainees come from 44 countries; however 75% of the detainees are from only six countries:

Afghanistan, Algeria, China Pakistan, Saudi Arabia, and Yemen.

Detainees from Afghanistan, Pakistan, and Saudi Arabia

have been released without apparent regard to the evidence alleged against them: 60% of detainees from these countries have been released, constituting over 71% of all detainees released from Guantánamo.

Conversely detainees from Yemen, Algeria, and China

have been held without apparent regard to the strength or weakness of the evidence against them: 9.7% of detainees from these countries have been released, constituting 4.2% of all detainees released.

Detainees from Arabic-speaking nations have been released on average 10 months later than those from post-Soviet nations, and 21 months later than those from nations which are traditional US

allies.

Joshua Denbeaux, research fellow and co-author of the report, commented, “The decisions to release Guantánamo detainees—presumably the ‘worst of the worst,’ were political, but it’s hard to understand the politics. Guantánamo was supposed to make Americans safer, but some of the most dangerous detainees were released because of their nationality, regardless of the evidence the Department of Defense supposedly gathered against them. What our report can’t answer is whether that ‘evidence’ was nonexistent to begin with, or whether these releases took place with no regard to our national security.”

Profile of Released Guantánamo Detainees: The Government’s Story Then And Now, may be read at http://law.shu.edu/center_policyresearch/Guantanamo_Reports.htm. [Mark Godsey]

CA Court Upholds Medical Marijuana Program Against Supremacy Clause Challenge

A state appeals court upheld California's 12-year-old medical marijuana law Thursday, rejecting two counties' arguments that allowing patients to use the drug with their doctor's approval condones violations of federal narcotics laws.

The Fourth District Court of Appeal in San Diego dismissed challenges by San Diego and San Bernardino counties, which objected both to the 1996 marijuana initiative and to recent legislation requiring counties to issue identification cards to users of medical pot.

The cards protect their holders from arrest by state or local police for possessing small amounts of marijuana.

The U.S. Supreme Court has ruled that the federal government can enforce its drug laws, which ban marijuana use and cultivation, against patients and their suppliers in California and the 11 other states that have legalized medical marijuana under their own laws.

But in Thursday's ruling, the appeals court said states remain free to decide whether to punish drug users under their own laws.

"The (federal) law does not compel the states to impose criminal penalties for marijuana possession," said Justice Alex McDonald in the 3-0 ruling, which upheld a Superior Court judge's decision.

"The purpose of the (federal law) is to combat recreational drug use, not to regulate a state's medical practices."

Besides, McDonald said, the counties' only obligation under the California law is to process and hand out the ID cards, a requirement that poses no conflict with federal law.

State and local officers can't arrest marijuana users for violating the federal law, he said, and applications for the medical marijuana cards contain a warning that they provide no shield against federal authorities.

Although the state's decision to allow medical marijuana use "arguably undermines the goals" of the federal law, McDonald said, county governments are unaffected by any such conflicts and therefore have no right to sue to overturn the entire state law.

San Diego County's lawyer, Senior Deputy County Counsel Thomas Bunton, said county supervisors may decide by next week whether to appeal to the state Supreme Court. He said a future appeal to the U.S. Supreme Court is also possible.

"We think the court should have found that California's medical marijuana laws are pre-empted by the federal law," Bunton said. "We think (the ID card law) requires us to issue cards in support of conduct that violates federal law."

Read full article here. [Brooks Holland]

S.F. fund aids teen felons who are illegals

As San Francisco's juvenile justice system shielded young illegal immigrant felons from possible deportation, Mayor Gavin Newsom's office gave grants totaling more than $650,000 to nonprofit agencies to provide the underage offenders with free services - everything from immigration attorneys to housing assistance to "arts and cultural affirmation activities," city records show.

Newsom has said the city began its policy of not referring young immigrant offenders to federal authorities for deportation under previous mayors, and that he reversed the practice after he became aware of it this year. However, in 2006, the Mayor's Office of Criminal Justice - a community outreach arm of Newsom's office - created a grant program specifically designed to assist, rather than deport, "undocumented, unaccompanied and monolingual" immigrants who were in the custody of the city's Juvenile Probation Department or on juvenile probation, according to city documents.

The city provided $467,000 to three nonprofit agencies under the grant program from mid-2006 and mid-2008, records show, and another $200,000 was approved for two of the agencies for this budget year.

Newsom's office created the program, in part, to deal with an influx of Central American youths being housed on drug charges at San Francisco's juvenile hall, according to those familiar with the grant. Crowding at juvenile hall had led to protests among youth advocate groups.

"A key goal of this project is to assist these individuals to successfully navigate the juvenile justice system and achieve stability within the community setting," according to a 2006 invitation issued by Newsom's office for agencies to bid for grant money.

The grant language said the youths "require extensive support" to overcome "multiple complex barriers" in the justice system.

Money for the effort came from the pot of discretionary funding that the mayor's office receives each year as part of the city budget.

'Proud tradition'

The goal of the grant program, according to the request for bids, was to further the city's "proud tradition as a haven for immigrants."

In addition to immigration attorneys, Newsom's office envisioned the program helping young felons obtain housing, food, clothing, educational and vocational training, English-language instruction, medical care and mental health assessments.

The program would also provide "spiritual, cultural enrichment and recreation activities."

Joseph Russoniello, the U.S. attorney for the northern district of California and a critic of San Francisco's past policy of not turning over undocumented juvenile immigrant felons for deportation, said the mayor's office was funding programs that might be violating federal law.

"What it means to me," he said, "is they took the concept of sanctuary, and they applied it in a way that it is as close to harboring as I've ever seen."

Federal law bars people from knowingly harboring undocumented immigrants. Russoniello said the city grant program relied on young immigrant offenders staying in the juvenile justice system, away from federal authorities who might want to deport them. [Mark Godsey]

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Judge Removed From 'Jena Six' Case

The judge overseeing the criminal cases for the remaining Jena Six defendants was removed against his will Friday for making questionable remarks about the six black teenagers charged. They're accused of a December 2006 attack on a white high-school classmate in the central Louisiana town of Jena that led to widespread protests.

Judge J.P. Mauffray Jr. had acknowledged calling the teens "troublemakers" and "a violent bunch" but insisted he could be impartial. Judge Thomas M. Yeager, who was asked by defense attorneys to review the case, found there was an appearance of impropriety and took Mauffray off the case.

"The right to a fair and impartial judge is of particular importance in the present cases," Yeager wrote.

Six black teens were arrested and initially charged with attempted murder and conspiracy to commit murder in connection with a Dec. 4, 2006, attack on fellow Jena High School student Justin Barker, who is white. The charges were later reduced.

Jesse Ray Beard, Robert Bailey Jr., Carwin Jones, Bryant Purvis and Theo Shaw now face aggravated second-degree battery charges. Beard is charged as a juvenile.

Mychal Bell is the only member of the group to have been tried. He originally was charged as an adult with attempted murder. The charge was reduced before a jury convicted him last June of aggravated second-degree battery.

In September, an appeals court overturned the verdict and ordered Bell tried as a juvenile. He pleaded guilty to a juvenile charge of second-degree battery. He now lives with a foster family in Monroe, La., and is attending school.

Bell's attorney, Louis Scott, said he would also ask to have Mauffray removed from Bell's case. Although Bell's plea will remain unchanged, Scott said he did not want Mauffray to oversee the teen's probation. [Mark Godsey]

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