Month: January 2017

Categories
Law

Trump’s immigration order is unconstitutional

Sally Yates paid with her job for standing up for the Constitution.

In a letter Monday to lawyers at the Department of Justice, Yates, the acting attorney general, explained that she was “not convinced” that the defense of a White House order issued Friday that bars entry to the U.S. by people from seven majority-Muslim countries would be consistent with DOJ’s “solemn obligation to always seek justice and stand for what is right.”

That earned her a sacking by the White House, intensifying a crisis that began Friday when President Trump signed the order, leading customs officials to detain people arriving from the countries at issue, visas in hand.

But as Yates appears to have concluded, the order is unconstitutional. Among other reasons: It results in the government’s favoring one religion over another, in violation of the Establishment Clause of the First Amendment.

Though the president denies that the order is a ban on Muslims, he also told an interviewer on Friday that Christians would be given priority when applying for refugee status. As David Cole, legal director of the American Civil Liberties Union wrote in a blog post published Saturday:

Here, too, Trump has violated the Establishment Clause’s ‘clearest command.’ Christians suffering persecution deserve asylum, but so do Muslims suffering persecution and Buddhists and Jews and Sikhs and Zoroastrians. There is no legitimate reason to favor Christians over all others who are persecuted for their beliefs.

Even had Trump not singled out Christians, the order would still be unconstitutional, according to Cole. Thirty-five years ago, the Supreme Court invalidated a Minnesota law that required religious organizations receiving less than half their contributions from members to register as charitable organizations and file an extensive annual report.

Though the statute did not mention any religion by name, members of the Unification Church, which raised most of its donations from non-members and, therefore, did not qualify for the exemption, accused the government of violating its free exercise of religion guaranteed by the First Amendment.

The court agreed. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another,” Justice Brennan wrote for the majority. “The fifty per cent rule sets up precisely the sort of official denominational preference that the Framers of the First Amendment forbade.”

Categories
Law

Trump Muslim ban: voices from the weekend

“It is appropriate and just that, pending completion of a hearing before the court on the merits of the petition, that the respondents be enjoined and restrained from the commission of further acts and misconduct in violation of the Constitution…”
U.S. District Judge Ann M. Donnelly
Eastern District of New York

“The court orders that… respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport.”
U.S. District Judge Leonie Brinkema
Eastern District of Virginia

“It is hereby ordered that respondents… shall not, by any manner or means, detain or remove individuals with refugee applications approved by the U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, lawful permanent residents, and other individuals from Iraq, Syria Iran, Sudan, Libya, Somalia and Yemen who, absent the executive order, would be legally authorized to enter the United States.”
U.S. District Judge Allison Burroughs
U.S. Magistrate Judge Judith Gail Dein
District of Massachusetts

“The unethical and discriminatory treatment of law-abiding, hard-working, and well-integrated immigrants fundamentally contravenes the founding principles of the United States.”
Petition signed by Academics Against Immigration Executive Order, including 37 Nobel laureates

“Ultimately, I fear this executive order will become a self-inflicted wound in the fight against terrorism.”
Senator Lindsey Graham, R-S.C.

“It’s working out very nicely.”
President Donald Trump

Categories
Law

Judge stays Trump Muslim ban

President Trump, meet the rule of law.

A federal judge on Saturday blocked the administration from enforcing an executive order that would deny entry to the United States by people from seven Muslim countries.

In granting a request by the American Civil Liberties Union to stay deportations of as many as a dozen people detained upon arrival at Kennedy Airport, Judge Ann Donnelly of the U.S. District Court in Brooklyn noted that the detainees had arrived with valid visas.

“Our own government presumably approved their entry to the country,” she told lawyers at a hearing Saturday evening, noting that had the detainees arrived before the president signed the order on Friday they would have been admitted to the country without question.

The case of Hameed Khalid Darweesh, an Iraqi citizen who arrived at JFK on Friday evening, shows the serpentine path to the U.S. and the extensiveness of screening of refugees from the affected countries even before the president barred them for at least three months.

As detailed in court papers, Darweesh, 53, worked for the U.S. government in a variety of capacities for a decade starting in March 2003. His jobs included interpreter for the U.S. Army, project engineer for the U.S. Government and a contractor for a firm hired by the Americans.

The work led to Darweesh’s being targeted by anti-American militias. In October 2014, he applied for Iraqi Special Immigrant Visa (SIV) status, which Congress created to provide safety for Iraqis who have faced threats that resulted from their service to the U.S. Here’s what ensued, according to court papers:

  • Darweesh applied for and obtained so-called Chief of Mission (COM) approval from the U.S. embassy.
  • As a SIV applicant, he then filed a petition on Form I-360 with the U.S. Citizenship and Immigration Service.
  • Darweesh then applied for a visa by filing Form DS-260 with the National Visa Center. After that was processed, he was interviewed at the U.S. Embassy in Baghdad.
  • After the interview, the U.S. government conducted various security checks and a medical examination. It took two years from the data Darweesh received COM approval for the visas for his family and him to be processed.
  • Darweesh and his family received the visas on January 25. The family immediately boarded a flight to the U.S. via Istanbul and arrived Friday around 6 p.m. Eastern.

The family had hoped to travel to Charlotte, where they were to receive refugee benefits. But after landing at JFK, Darweesh was detained by agents from U.S. Customs and Border Protection (CBP).

According to the ACLU, Darweesh’s attorney was present in the arrivals section of Terminal 1 but did not enter the CPB area. Darweesh allegedly was moved to so-called secondary screening.

His family waited over an hour before Darweesh emerged with a CPB officer to return passports for every member of the family except Darweesh, who was then returned to screening.

At around 11:30 p.m., CPB officers asked the family to return to the security zone for additional questioning of Darweesh’s wife. The officers refused to question Mrs. Darweesh in the arrivals area despite requests of counsel. Darweesh himself allegedly was unable to meet with his attorneys despite their making multiple attempts to meet with him.

CBP officers allegedly told the attorneys they were not the ones to speak with about seeing their clients. When the attorneys asked with whom they should speak, the CPB agents allegedly told them, “Mr. Trump. Call Mr. Trump.”

In court papers, the ACLU charged that Darweesh’s detention denied him his right to apply for asylum in violation of U.S. and international law. The U.S. cannot return Darweesh to Iraq, where he might face persecution or torture, they alleged.

What’s more they alleged, the Trump executive order is “substantially motivated by animus toward – and has a disparate effect on – Muslims” in violation of the Fifth Amendment’s due process clause.

“In every conceivable way, the vetting process is already extremely thorough,” Mostafa Hassoun, a Syrian refugee living in the U.S., wrote Saturday in Politico. “I know this because I went through the process myself.”

Judge Donnelly set a date at the end of February to hear the case.

Throughout Saturday, while Darweesh and others were detained despite holding valid visas, and their attorneys worked to secure their release, and thousands of Americans protested at airports, the president took to Twitter to complain about the “failing” New York Times.

Categories
Law

Trump ‘extreme vetting’ to face court challenges

Of the 19 terrorists who attacked the U.S. on 9/11, 15 were from Saudi Arabia, two were from the United Arab Emirates, one was from Egypt and one from Lebanon.

President Trump invoked the image in an executive order signed on Friday that makes citizens of seven majority Muslim nations ineligible for a visa to enter the U.S. None of the nations include countries of the terrorists who carried out the 9/11 attacks.

The order directs the Homeland Security secretary to determine what information is needed to issue visas to people from Iraq, Syria, Yemen, Somalia, Sudan, Libya and Iran. The American Civil Liberties Union called such vetting “a euphemism for discrimination against Muslims.”

The order also bars refugees from entering the country for four months, and suspends admission of refugees from Syria indefinitely. The president said he would prioritize persecuted Christians from the Middle East as refugees.

The Council on American-Islamic Relations said Friday it would sue to challenge the order on behalf of more than 20 people who charge that it violates the First Amendment.

“The courts must do what President Trump will not — ensure that our government refrains from segregating people based on their faith,” Gadeir Abbas, one of the group’s attorneys, said in a statement.

Separately, lawyers for two Iraqi men reportedly en route to the U.S. on Friday evening with valid visas and detained at Kennedy Airport have filed a lawsuit challenging the ban on refugees as unconstitutional. It was unclear how many refugees were detained at airports nationwide.

Presidents have broad powers to control the country’s borders, which the administration seems likely to assert in court. Because absent alternative facts, the president will be unable to point to anything that ties the nations at issue to the September 11 attacks. As a report by New America notes, “every jihadist who conducted a lethal attack inside the United States since 9/11 was a citizen or legal resident.”

Categories
Law

Driver not deprived of right to consult with counsel before taking blood-alcohol test, appeals court rules

A suspect charged with driving under the influence of alcohol cannot keep the results of a blood-alcohol test out of court because he did not have an opportunity to consult with an attorney before taking the test, a state appeals court in Brooklyn has ruled.

Whether to suppress evidence of a blood-alcohol test because the suspect was deprived of his right to counsel depends on whether the attorney “entered” the case before the test was given, the Appellate Division’s Second Department ruled on Jan. 11.

An attorney enters a criminal matter and triggers the right to counsel when either a suspect asks to speak with an attorney or the attorney or his or her professional associate notifies police that the suspect is represented by counsel, Judge Randall Eng noted on behalf of the four-judge panel.

“Because the record does not establish that counsel ‘entered’ the case before the test was given, the [trial court] erred in finding that the blood-alcohol test was given in violation of the defendant’s limited right… to consult with counsel,” he wrote. “Notification given to the police by a third party, such as a member of the defendant’s family, is not sufficient to establish counsel’s entry into the case.”

The appeal arose from a prosecution that began on August 26, 2013, when the defendant allegedly got into a fight with a friend at late-night party in North Massapequa. The friend drove away and the defendant got into a car and chased him, before allegedly ramming his car into the back of his friend’s car.

The police arrived, arrested the defendant and took him to the hospital. At 2:35 a.m. the suspect consented to a blood-alcohol test. Three minutes later, the police learned the name and telephone number of an attorney for the suspect, but the record did not establish how they obtained the information. (A police officer testified he did not remember how he learned it.)

At 2:49 a.m., police administered the test. At 3:30 a.m., the suspect was advised of his rights and made a statement to police that implicated him in several crimes arising from the incident.

At trial, the defendant asked the court to suppress both the result of the blood-alcohol test and his statement. The trial court sided with the defendant, holding that police violated his right to consult with an attorney about whether to take the test.

The Appellate Division, disagreed, noting that by law, any person who operates a motor vehicle in New York “shall be deemed to have given consent” to a test of his or her breath, blood or urine to determine the driver’s blood alcohol level. Drivers who refuse the test face automatic revocation of their license to drive and admissibility at trial of evidence that the driver refused to take the test, provided that the police have warned the driver in advance of the consequences of his or her refusal.

When deciding whether to refuse to take the test, a defendant may wish to consult with counsel, said the court, adding that by law police have no duty to warn a defendant of this limited right before asking the defendant to submit to the test.

Still, “when an attorney has actually entered the case, a defendant who had not asked to speak with an attorney must be made aware of the attorney’s entry into the case so that he or she may decide whether to consult with counsel before making a refusal decision,” Eng wrote.

Criminal defendants in New York have an indelible right to counsel, which the state’s highest court has held to mean that a defendant in custody in connection with a matter for which he is represented by counsel may not be questioned by police in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney.

Categories
News

‘I want a president’

‘I want a president,’ Zoe Leonard (1992), The High Line
Categories
News

The Trump dossier differs from an indictment

BuzzFeed itself made news Tuesday when it published a 35-page dossier detailing Donald Trump’s alleged relationship with Russia.

Most news outlets, including the Times, The Washington Post and CNN, refrained from publishing the document, which as far as I know remains unverified. Dean Baquet, executive editor of the Times, said his organization would not publish “totally unsubstantiated” allegations.

BuzzFeed said it published the dossier “so that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of the US government.”

But how can readers make up their minds about the truth of the charges, which include claims of meetings between Trump aides and Russian operatives, as well as sexual acts? As Erik Wemple wrote in The Washington Post, “Americans can only ‘make up their own minds’ if they build their own intelligence agencies, with a heavy concentration of operatives in Russia and Eastern Europe.”

That intelligence agencies briefed both the president and president-elect about the allegations did not sway me either. I imagine the agencies brief the president about all sorts of unsubstantiated information – possible terrorist plots, for example – that I would be in no position to assess if I learned of them.

At the same time, the existence of the dossier was known throughout official Washington. Mother Jones reported the information in October. Senator John McCain said he passed the dossier to the FBI.

As Jack Shafer argued in Politico, “… when such a report is flung about by people in power, as this one was, and its allegations are beginning to inform governance, more damage is done to trust in government and confidence in journalism by withholding it from public scrutiny.”

Ben Smith, BuzzFeed’s editor-in-chief,  appeared Sunday on CNN to defend the decision to publish. “Our job is not to be gatekeepers,” he told host Brian Stelter. Smith compared the dossier to an indictment – a charge of a serious crime – which news outlets report on all the time, usually by prefacing the allegations with the word alleged. As Smith sees it:

We are I think well within the tradition of American journalism, which is every time you use the world ‘alleged’ on your air, every time you see the word ‘alleged’ in print or on the web, that is saying we are repeating a claim we can’t verify. That is totally, within the standard particularly of covering law enforcement.

The dossier reportedly originated as opposition research commissioned by one of Trump’s Republican rivals for the White House. It was later championed by a Democrat, though not necessarily the Hillary Clinton campaign.

To bring criminal charges, prosecutors generally must have probable cause, which courts have construed as meaning they must have a reasonable basis for believing that a crime has been committed.

According to the Justice Department’s charging guidelines, the requirement of probable cause merely begins the inquiry and does not alone automatically warrant prosecution.

“On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions as well,” the guidelines instruct.

Opposition researchers do not need to worry whether an allegation will hold up in court.

That’s not to suggest that criminal charges necessarily have merit because prosecutors have assessed probable cause or that charges do not need to be substantiated. But they reflect a calculation by prosecutors, as the guidelines put it, “that the admissible evidence will probably be sufficient to obtain and sustain” a conviction.

Of course, journalists are not prosecutors. And I share the instinct to want to provide readers with primary sources. But the dossier differs from an indictment.

Categories
Law

The investigation into Eric Garner’s death passes to Jeff Sessions

The investigation into the death of Eric Garner at the hands of the NYPD will pass to Jeff Sessions, the incoming attorney general who has criticized efforts by the Justice Department to end discriminatory policing and the use of excessive force in poor, mainly black communities.

Attorney General Loretta Lynch, who is overseeing the probe, is expected to step down before prosecutors reach a resolution in the case, The Washington Post reported Friday.

In December, Lynch shifted the investigation to Washington from Brooklyn following a disagreement between prosecutors there and at headquarters, with prosecutors in Brooklyn doubting whether they could prove in court that the use of force by Daniel Pantaleo, the NYPD officer whose chokehold of Garner, a black man, led to the latter’s death on Staten Island almost three years ago, was unreasonable based on the circumstances. Their colleagues in Washington reportedly thought the record contained enough evidence to proceed.

At a hearing of the Senate Judiciary Committee in November 2015, Sessions, a senior member of the panel, called the Black Lives Matter movement, which campaigns to end anti-black racism and police abuses, “really radical” and said that “police officers all over America are concerned” about legal actions by the Justice Department against police departments and officers.

As attorney general, Sessions will inherit DOJ’s oversight of agreements with the cities of Chicago, Cleveland and Baltimore that commit police in each of those cities to refrain from unconstitutional stops, searches and arrests of African-Americans, as well as from using excessive force. In an introduction to a paper published in 2008 by the Alabama Police Institute, Sessions denounced the use of such agreements as “an end run around the democratic process.”

According to Ames Grawert, counsel for the Brennan Center for Justice, Sessions’ comments “call into question” whether he would continue the department’s probes intro police practices.

Sessions also will be charged with implementing the criminal justice agenda of the president-elect, who campaigned on a platform of law and order. Though Sessions pushed for passage of a 2010 law that reduced the disparity in sentences between crimes for crack and powder cocaine, he has opposed reform of federal sentencing laws despite bipartisan support for ending mass incarceration without compromising public safety.

Pantaleo and his partner arrested Garner, a father of six, for allegedly selling untaxed cigarettes. Video from a cellphone camera recorded the encounter, which ended with Garner telling the officers 11 times he could not breathe as they pinned him to the ground.

In a letter last Tuesday to Lynch, Rep. Hakeem Jeffries of Brooklyn and five of his fellow New York-area lawmakers called on the attorney general to prosecute Pantaleo. “In approximately two weeks, there will be a new DOJ less committed to civil rights enforcement,” they wrote. “Consequently, the investigation into Mr. Gamer’s death may itself be suffocated and die.”

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Law

President Obama writes about the president’s role in advancing criminal justice reform and the significance of second chances

In its investigation of the police department in Ferguson, Missouri, the U.S. Department of Justice found that the city relied heavily for revenue from fines for such minor offenses as jaywalking or untended lawns that it enforced most often against members of African-American communities. The city issued arrest warrants not based on public safety needs, but as a routine response to fine payments, investigators found.

We are reminded of that more recently by President Obama, who in an article for the Harvard Law Review discusses the president’s role in advancing criminal justice reform. The 50-page article summarizes many of the statistics that may be all too familiar to people in communities of color.

Roughly 2.2 million U.S. adults were housed in federal, state or local jails at the end of 2015 (the most recent year for such data), down about 2% from a year earlier. While blacks and Hispanics constitute roughly 30% of the population, they comprise half the prison population. As the president notes, though evidence suggests no statistically significant difference in drug use across races and ethnicities, the arrest and conviction rate for African-Americans is much higher.

For similar offenses, the president writes, “members of African American and Hispanic communities are more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties.”

The U.S. has 5% of the world’s population but incarcerates nearly 35% of the world’s prisoners. That’s four times the world average and more than the 35 largest European countries combined. About one-third of adults – an estimated 70 million Americans – have a criminal record, which brings with it barriers to voting, employment, housing and the safety net.

“We simply cannot afford to spend $80 billion annually on incarceration, to write off… one in three adults… to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of… men and women currently in U.S. jails and prisons,” Obama writes. “In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.”

The president outlines a series of changes that would make the criminal justice system fairer and more effective. They range from reform of sentencing laws and improvements in the system of public education and juvenile justice, to curtailing use of solitary confinement, reducing gun violence and restoring rights of those who have paid their debts to society.

He also notes his commuting the sentences of more than 1,000 people, the vast majority of whom had already served much more time than the sentence they would receive today and each of whom had obtained a GED, addressed substance abuse that led to their conviction or learned skills for future employment.

“This is an effort that has touched me personally, and not just because I could have been caught up in the system myself had I not gotten some breaks as a kid,” the president writes.

In 1990, Barack Obama, then 28, was elected the first black president in the 104-year history of the Harvard Law Review. The law review’s current president, Michael Zuckerman, along with its articles chair, invited Obama to contribute the article.

As it happens, Zuckerman was arrested and pleaded guilty to criminal trespass 16 years ago, at age 13, for trying to steal alcohol from a family he knew was away. The court assigned him to community service, which included doing art projects with homeless children who lived in motels.

The experience, Zuckerman told The Washington Post, underscored for him his privilege and taught him to redirect his energy into more productive things than stealing liquor. “So being able to publish a piece in which the president of the United States talks about the importance of second chances is very meaningful to me personally,” Zuckerman said.

Categories
Law

Skin color provides a basis to challenge the peremptory strike of a juror: Court of Appeals

A Queen’s man charged with robbery will receive a new trial because the judge erred in allowing prosecutors to discriminate in the selection of jurors in violation of federal and state law, New York’s highest court has ruled.

During jury selection, the prosecutor in the trial of Joseph Bridgeforth dismissed five prospective jurors, all black or dark-complexioned women, including an Indian-American woman. Attorneys for Bridgeforth challenged the strikes, asserting that the state discriminated against dark-colored women. The prosecutor supplied non-discriminatory explanations for four of the exclusions but failed to provide a reason for striking the juror at issue. Still, the juror was not seated.

Bridgeforth, who is African-American, charged that the strikes violated the Equal Protection Clause of the U.S. Constitution, which forbids a prosecutor to challenge potential jurors on the basis of their race, sex or ethnicity. The move, Bridgeforth charged, also contravened the New York Constitution, which forbids denying someone his or her civil rights because of race, color, creed or religion.

The Court of Appeals agreed. “Persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity,” Judge Sheila Abdus-Salaam wrote on behalf of five of her colleagues in a ruling dated Dec. 22. “That is why color must be distinguished from race.”

According to the court, the distinction between color and race is necessary to serve the purpose of Batson v. Kentucky, a 1986 ruling by the U.S. Supreme Court that provides a framework for challenging use of peremptory strikes, which allow lawyers to dismiss prospective jurors without saying why. Lawyers have used such strikes to get rid of jurors based on their race or ethnicity even though such discrimination is unconstitutional.

In Batson, a black man in Kentucky was convicted of burglary and receipt of stolen goods. At trial, the prosecutor used his peremptory to strike all black persons in the pool of prospective jurors, and a jury composed solely of white people was selected.

In an opinion by Justice Powell, the court in Batson outlined a three-step protocol for such situations. First, the defendant must show that the prosecutor used the strike the discriminate. If that showing is made, the burden shifts to the state to articulate a non-discriminatory reason for striking the juror. Third, the trial court must determine whether the reason proffered for the strike constitutes an excuse to discriminate, and whether party challenging the strike has shown purposeful discrimination.

At Bridgeforth’s trial, the discussion during jury selection proceeded as follows, according to the record before the court:

The district attorney has now preempted all the female black women and I don’t believe that there are valid reasons other than their face and their gender that they have been challenged,” [defense counsel said]. The People responded, ‘Well, Judge, we are either going to do Guyanese or African American, can’t do black or skin color, Judge.’

“Where individuals are excluded from jury service on the basis of their skin color, the defendant is denied the right to a trial by a jury of his or her peers, which is meant to reflect the community in which the defendant lives,” Judge Abdus-Salaam noted.