Sheriff Alex Villanueva is Obstructing Attempts to Eradicate Deputy Gangs from the LASD

By Sean Kennedy, Kaplan & Feldman Executive Director, Center for Juvenile Law & Policy

The Los Angeles County Sheriff's Department has tolerated deputy gangs within its ranks for at least 50 years.

Our Legislature recently enacted Penal Code Section 13670 - effective Jan. 1, 2022. The new law requires law enforcement agencies to adopt a written policy prohibiting members from participating in a "law enforcement gang" and authorizes agencies to terminate members who violate that policy. Section 13670 also requires any agency that terminated a member for participating in a law enforcement gang to disclose the reason for the termination to other agencies that are considering hiring the former member. The legislative history reveals that the longstanding problem of "deputy gangs" in the Los Angeles County Sheriff’s Department was the impetus for enacting Section 13670.

The first known deputy gang, the Little Red Devils, started at East Los Angeles station - where Sheriff Alex Villanueva started his career. Records from Sheriff Peter Pitchess's administration reflect that investigators compiled a list of dozens of' deputies with sequentially numbered devil tattoos to ascertain whether they were engaged in misconduct. After this 1973 investigation, LASD leadership stopped compiling lists of internal tattooed groups based on the questionable assertion that such investigations would violate deputies' right to freedom of association under the First Amendment. To this day, the LASD uses this rationale as an excuse for not investigating deputy gangs, even after receiving County Counsel's 2021 memorandum advising that there is no First Amendment bar to banning deputy gangs.

In 1990, the NAACP filed a civil-rights lawsuit on behalf of scores of Lynwood residents alleging that the LASD tolerated racially motivated violence committed by a tattooed group of deputies known as the Vikings. After U.S. District .Judge Terry Hatter characterized the Vikings as "a neo-Nazi, white supremacist gang" that operated under leaders who "tacitly authorized deputies' unconstitutional behavior, the County settled the suit for $9 million. A 1992 commission headed by Judge James Kolts concluded that the Vikings "appeared at least in times past to have engaged in behavior that is brutal and intolerable and is typically associated with a street gang."

In 2012, a sergeant discovered a written creed of a tattooed group of deputies known as the Jump out Boys inside a LASD patrol car used by the Gang Enforcement Team. The creed boasted that the Jump out Boys "understand when the line needs to be crossed and crossed back; and directed members to memorialize deputy-involved shootings in a secret black book, While some members of the .Jump out Boys were terminated, most or all were reinstated by the Civil Service Protection process.

In 2018, several deputies celebrating the end of training were severely beaten by a tattooed group of deputies from the East Los Angeles station known as the Banditos. After investigating the incident, the Inspect General reported, "Substantial evidence exists to support the conclusion that the Banditos are gang-like and their influence has resulted in favoritism, sexism, racism, and violence:” Most recently, deputies from the Compton station have alleged that a tattooed group of deputies called "the Executioners" discriminated against female and African American deputies, engaged in racial profiling, and hosted shooting parties to celebrate deputy-involved shootings. Photos of demonic tattoos worn by the Grim Reapers, the Banditos, and the Executioners are all over social media.

Deputy gangs are in the jails as well as at patrol stations. The U.S. Commission on Civil Rights published a 1999 report on policing in Los Angeles that identified an "organized vigilante group" of deputies known as the Posse. According to the Commission, Posse members assaulted mentally ill inmates in Twin Towers because they opposed reforms to treat mentally ill inmates like patients, rather than prisoners. Then-sheriff Sherman Block lamented, "There are some people in the system who think we are coddling, and by God, they're going to set up their own brand of punishment."

Thirteen years later, in 2012, the Citizens Commission on Jail Violence concluded that tattooed ''deputy cliques" inside Men's Central Jail, such as the 2000 Boys and the 3000 Thousand Boys, "contributed to acts of insubordination, aggressive behavior, and excessive force in the jail for many years."

Citing a lack of evidence that is belied by the historical record, Sheriff Villanueva denies there are any deputy gangs within the department. At the same time, he has refused to investigate alleged deputy gang members - characterizing calls for an investigation as a witch-hunt" motivated by racism against Latinos. It goes without saying that if the Sheriff won't investigate alleged deputy gangs, he will never find any evidence one way or another.

The residents of Los Angeles County have paid a high price for the LASD leadership's failure to address gang culture within the ranks. Deputy gangs undermine constitutional policing, escalate uses of force, and sow distrust between the LASD and the communities they are supposed to serve. By valorizing aggressive policing and deputy shootings, deputy gangs foster an "us-against-them" culture that socializes deputies to view themselves as at war with the communities they are supposed to serve. A compilation of all deputy-involved shootings in Los Angeles County during the last five years reveals that LASD stations with active deputy gangs had significantly more deputy-involved shootings than other stations. The County Counsel estimates that the taxpayers have spent at least $55 million for settlements and judgments related to alleged deputy gang misconduct. Because LASD leadership refuses to investigate deputy gangs, prosecutors do not know and therefore do not comply with their constitutional duty to disclose to the defense that a particular sheriff witness belongs to a deputy gang - a fact that impeaches their credulity and reveals their bias on the stand.

Section 13670 creates an opportunity for the LASD to reverse course and eradicate deputy gangs once and for all. LASD leadership for years has claimed they cannot investigate tattooed groups absent proof that deputies committed specific felonies constituting a "pattern of criminal activity" that support a conviction for a criminal gang enhancement under the Street Terrorism Enforcement and Prevention Act (STEP Act). Not anymore, Section 13670 defines a "law enforcement gang" as "a group of peace officers...who may identify themselves by a name and may be associated with an identifying symbol, including, but not limited to matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or principles of professional policing." The definition of a law enforcement gang under Section 13670 is much broader than the traditional definition of a "criminal street gang" under the STEP Act. The new law prohibits a wide variety of gang-related misconduct and unconstitutional policing, rather than just the felonies listed in the STEP Act. These differences between Section 13670 and the STEP Act obviate LASD leadership's past justifications for refusing to investigate and terminate deputies actively participating in a law enforcement gang.

Section 13670 also directs, "A law enforcement agency shall cooperate in any investigation into these gangs by an inspector general, the Attorney General, or any other authorized authority." This provision will require Sheriff Villanueva to change his ways. He has refused to comply with subpoenas to testify and produce records regarding deputy gangs - even after courts have held that he is obligated to do so - and resisted oversight focused on reining in the gang. Sheriff Villanueva must abandon these obstructionist tactics and collaborate with oversight authorities to eradicate deputy gangs from the LASD.

Imagining A Greater Justice: Criminal Violence, Punishment and Relational Justice

By Professor Samuel H. Pillsbury 

This excerpt of the book Imagining A Greater Justice: Criminal Violence, Punishment and Relational Justice originally appeared in the Friday, May 10, 2019 edition of the San Francisco and Los Angeles Daily Journal

As a society, our most pressing need for justice comes after criminal violence. A young man is shot in a crosswalk on a summer's night and bleeds to death on the asphalt. A wife is punched and choked by her husband. A girl is sexually molested by her basketball coach. Hearing about these events, our feelings move quickly from sympathy for victims to anger at perpetrators. We hope to see their swift arrest, conviction and punishment. Then we can say that justice has been done.

But we need more than law to do justice in these cases. We need a justice commensurate with the harm. This means we need a justice that comprehends the grief of the young man's family, the soul hurts of the beaten woman, and the girl whose world has been utterly transformed by sexual violation. We need a justice that comprehends how violence shatters survivors' sense of trust and place in community. Can we imagine this? I think we can. But we should not stop here.

Can we imagine a justice that respects an offender's humanity? Can we imagine a justice that treats someone who has spent half of his life locked up for serious crime as a human being capable of change? Can we imagine an ideal of justice that says we should try to reconcile with him to make a lasting peace in our communities? Can we imagine a justice that acknowledges the racial violence of the past and the racial denials and misunderstandings that undercut the trust needed for effective law enforcement? Can we imagine a justice concerned with healing the community after violence?

Imagining a justice this big will be a stretch for many.

I know it has been for me.

I have spent most of my professional life working on justice defined by what happens in the courtroom. As a young man I swore allegiance to justice under law as an officer of the court – a federal prosecutor. And I believe in it as much today, in my 60s, as I did when I was in my 20s.

As the years have passed, though, my view of justice has changed according to my experience of life. I have slowly, often reluctantly, but with increasing conviction come to believe that our conception of justice in the United States is too small. It is too focused on the conduct and character of a few identified wrongdoers. Its concern with individual blame and punishment leaves unaddressed the deep needs of those most hurt by crimes of violence. It flatly ignores, even righteously dismisses, the needs of the incarcerated and their families.

Against the grain of an American culture that celebrates individual freedom and independence, I have come to appreciate how closely tied we are to each other, by bonds chosen and unchosen. The experience of surviving violence makes the strength of these bonds awfully clear. Our conception of justice should respect the reality of how we live in dynamic, interdependent relationship. In addition to holding persons responsible for their chosen actions, we need to take collective responsibility for legal and social structures that determine who belongs in society, and who does not. Belonging, it turns out, is the foundation of just and peaceful community.

We need to imagine what I call relational justice, which includes the rules and processes of the criminal law, but which is bigger in both scope and heart.

***

The Intersection of LGBTQ Domestic Violence and Criminal Defense Issues

By Professor Christopher Hawthorne and Mieko Failey '13

This article originally appeared in the Los Angeles Daily Journal.

Domestic violence is a significant public health epidemic that impacts people across gender identity and/or sexual orientation. Similarly, in the LGBTQ community, domestic violence is just as common, and oftentimes, more common. For some communities, such as for transgender people and bisexual women, the rates can be more than double or nearly triple those of non-LGBTQ people. And while LGBTQ people experience many of the same imbalances of power within an intimate partner relationship, a significant difference is that LGBTQ survivors confront many barriers in access to resources because of discrimination on the basis of gender identity and/or sexual orientation, including the threat of outing, explicit and implicit bias, transphobia, biphobia, and homophobia, and a lack of training for essential legal system actors. When LGBTQ people experience violence, this happens within a broader social context of anti-LGBTQ bias and oppression.

The dominant narrative about domestic violence often includes a cisgender, heterosexual framework. The experiences of LGBTQ survivors are often left out of this narrative. LGBTQ people experience higher rates of mutual arrest and/or wrongful arrest when law enforcement responds. This is often related to the perception that there is gender equality/equity and therefore an impossibility of a power imbalance. Law enforcement, who lack training on LGBTQ domestic violence issues, often conduct assessments based on gender expression, body size, and other physical characteristics. Once arrested, LGBTQ people report substantial rates of police misconduct based on gender identity and/or sexual orientation when they interact with law enforcement. Primary aggressors rely on these dangerous system actor responses as a tool to continue to maintain power and control over the survivor.

A Bargaining Zone for Miranda Waivers

By Professor Kevin Lapp

This post originally appeared on Prawsblawg.

There has been a lot of action recently in the world of juvenile confessions. Some of it has garnered nation-wide attention, like Brendan Dassey, the 16 year-old from the Netflix documentary series Making a Murderer, who is currently trying to convince a judge to release him after a federal appeals court (finally) found his confession to murder to have been coerced and involuntary. Less newsworthy, but just as important, the U.S. Supreme Court refused to review a decision upholding as knowing, intelligent and voluntary a Miranda waiver by an abused and developmentally-delayed 10 year-old. In California, Governor Brown vetoed legislation that would have required counsel for those under 18 before custodial interrogation could begin.

Each of these developments occurred days or weeks after I submitted a paper that explores the state of the law regarding Miranda waivers by juveniles. Where others have convincingly argued that juveniles need (and perhaps the constitution demands) counsel before they can validly waive the 5th Amendment privilege against self-incrimination, my paper considers whether interrogation law should incorporate a rule akin to contract law’s infancy doctrine and permit individuals to retract uncounseled Miranda waivers.

This exploration of contract law's relevance to criminal procedure has me considering whether there is a bargaining zone for Miranda waivers.

Clemency and Collateral Consequences

By Professor Kevin Lapp

This post originally appeared on Prawsblawg.

Back in May, a Loyola Law School student and I submitted a clemency petition to the Office of the Pardon Attorney (OPA) as part of President Obama's Clemency Initiative. Our client had received a 30 year sentence for a non-violent cocaine offense that would, today, likely come with a 10-12 year sentence. Our client had already served 19 years of the sentence. At the end of October, I received the amazing phone call from the OPA informing me that the President was signing the petition, and that our client's sentence was to be commuted, and would expire in Feb. 2017, sparing him 6-11 additional years in prison.

That Obama should sign thousands more such petitions before he hands over the Executive Office to an individual who does not believe in the redemption of anyone other than himself is an imperative of justice. Yet, despite this tremendous victory, the challenge that awaited our client upon release was not lost on him. He was now 52 years old, he possesses few 21st-century labor market skills, and--perhaps most daunting of all--he would still carry his criminal record with him wherever he went.

Black and Blue in Baltimore

By Professor Eric Miller
Originally appeared on Prawfsblawg

Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?

I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.

The cost of ‘quality of life’ policing: Thousands of young black men coerced to plead guilty to crimes they didn’t commit

By Professor Alexandra Natapoff

This commentary originally appeared on The Washington Post

At their inaugural debate, the Democratic presidential candidates finally agreed that black lives matter. If they mean it, they should take a stand against a common but overlooked way that our criminal system devalues black lives: convicting African American men of minor crimes that they did not commit.

These wrongful convictions are largely byproducts of “order maintenance” or “quality-of-life” policing, in which police arrest large numbers of young black men on baseless charges. Baltimore police, for example, are under court-ordered monitoring for making baseless quality-of-life arrests. As described by one former officer, police tell young men to move along, then arrest them for loitering when they don’t. Maryland courts have already explained that this police practice is illegal: people who are merely standing on the street, even those ordered to move along, are not actually “loitering,” which the city ordinance defines as “to interfere with, impede or hinder the free passage of pedestrian or vehicular traffic” after having been warned to desist.

Read the full article here.

 

25 year-old Adolescents

By Professor Kevin Lapp

Prof. Lapp is guest blogging on Prawfsblawg, where this post originally appeared.

Adolescents are neither children nor adults. But who falls within the category of adolescents? Given the great advantages of age-based distinctions in clarity and efficiency, when does adolescence start and when does it end?

Adolescence has typically referred to the period between puberty and social and economic independence. In the mid-1800s, that meant adolescence lasted about 5 years. But many things have changed since then. On the front end of adolescence, the age of puberty has declined for both boys and girls. At the back end, more young people than ever go off to college, delaying their entry into the full-time job market. They are getting married later. They’re living with parents longer.

As a result, leading adolescence psychologist Laurence Steinberg maintains that adolescence now covers the period from 10 to 25. That would mean that not only every teenager, but almost every college student, and many law students, are adolescents. Just the other day, the defense lawyer in the Aaron Hernandez murder trial in Boston referred to his client as a “23 year-old kid.” As jarring as this way seem to read or hear, it’s supported by leading psychologists like Steingberg. (Prominent psychologist Jeffrey Jensen Arnett alternatively talks about “Emerging Adulthood”, by which he means ages 18-25). In fact, Steinberg predicts that the lengthening of adolescence is likely to continue, and conceiving of adolescence as limited to the teen years will become “more outdated and harmful.” (Age of Opportunity: Lessons from the New Science of Adolescence).

There isn’t space in a blog post to debate the length of adolescence. In any event, it’s almost universally accepted that full development/maturity doesn't come until the early to mid-twenties. I’m interested in thinking about the implications of the law recognizing a long adolescence, which is decidedly not widely embraced.

First off, it would not mean that all the rights and responsibilities of adulthood are withheld until a person reached 25 or 21 or 18. Whether adolescents require distinct rules depends on how they are different. In turns out that they are different from children and adults in different ways at different ages. For example, by 16, most youth are close to adults in their ability to reason and process information, but they’re bad at deploying those skills when in groups of other teens or stressful situations, in part because they’re more interested in risk and less concerned with long-term consequences. That means that someone who can capably recognize right from wrong may nevertheless be less culpable for their actions than adults.

Indeed, some of the rules governing adolescents would overlap with those for children, and others would overlap with those for adults, depending on what was being regulated. This is, in many ways, the world we have. Young people can’t drive until 16, vote until 18, or drink until 21. But we also seem to allocate rights and responsibilities poorly. A 16 year-old can dangerously drive a car on our highways, and can be tried in adult court for his actions, but is not considered mature enough to handle R-rated movies unless watching with a parent. Paying more attention to how adolescents are different from children and adults would allow us to do a better job of assigning rights and responsibilities to adolescents.

I’ve thought most about the change that a long adolescence would bring to the law with regard to juveniles and criminal law. A long legal adolescence could mean an expanded juvenile court jurisdiction. In most states, jurisdiction ends at 18, though North Carolina and New York send everyone 16 and over to adult criminal court. In a world where adolescence lasts until 25, and where what distinguishes adolescents from adults involves decision-making capacities and attributes that make them less culpable for their acts, we might need to significantly expand juvenile court jurisdiction (or, as Barry Feld argues, provide for a youth discount at sentencing for those processed in criminal court). Similarly, 4th and 5th amendment jurisprudence, and the ability to consent to waiving those rights, probably needs to better account for the age of the person protected by and purportedly waiving those rights.

There are undoubtedly implications of a long legal adolescence in fields like torts, contracts, autonomy rights (including health, speech), family law and the strength and duration of parental rights, and more, but I don’t know them well enough to lay them out. If anyone is willing to indulge me and teach me, how might a long adolescence change the landscape in your field of expertise?

Defining Childhood

By Professor Kevin Lapp

Prof. Lapp is guest blogging on Prawfsblawg, where this post originally appeared.

A foundational, definitional problem for those like me who write about childhood and juvenile justice issues is figuring out who is a child and who is an adult, because rights and responsibilities frequently turn on whether someone is considered an adult or not. The answer, of course, is that it depends. The law considers people to reach maturity at a range of ages: it might be 21 (drink alcohol), 18 (vote), 16 (drive), 10 or 7 (ages of potential criminal responsibility). Of course, age need not be the deciding factor. Determining maturity could turn on capacity instead of age, but the bright line of age is much easier to implement than individual capacity-based inquiries.

The law in all sorts of areas uses this age-based binary approach: people are children until they reach a certain age, at which point they become, or are subject to the same rules as, adults. But however or wherever the line between adults and non-adults is located, a secondary question is becoming more pressing as developmental science teaches us more and more about the process of maturing: are there any categories within the group of people who are legally children (or “not yet adults”) and should the law account for such?

Professor Natapoff's Looks at Misdemeanor Decriminalization

Professor Alexandra Natapoff’s latest piece is entitled Misdemeanor Decriminalization, 68 Vanderbilt L. Rev (forthcoming 2015). She was interviewed about it by Slate. The abstract is below.

As the U.S. reconsiders its stance on mass incarceration, misdemeanor decriminalization has emerged as an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars—nonjailable offenses do not trigger the right to counsel--while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier—both logistically and normatively--to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions. The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.

Prof. Levenson: California is Overdue in Adopting Rule on Exculpatory Evidence

By Professor Laurie Levenson and Barry Scheck

This op-ed originally appeared in the Dec. 15, 2014 edition of the Los Angeles Times.

More than half a century ago, the Supreme Court established a rule that requires prosecutors to turn over to defense attorneys any evidence pointing to a defendant's innocence. It's known as the Brady rule, and violations of it occur far too often and can lead to devastating consequences. In a dissenting opinion last year, Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals declared that "there is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." There is no shortage of examples.

Take the case of Mark Sodersten. In 2007, a state appellate court reversed his 1986 murder conviction after finding that the prosecution failed to give the defense audiotapes of interviews with a key witness that contained evidence pointing to Sodersten's innocence. Tragically, the ruling came too late for Sodersten, who spent 22 years behind bars and died in prison months before he was awarded a new trial.

Or consider Kash Delano Register, who served 34 years behind bars for a 1979 murder in Los Angeles that he always maintained he didn't commit. He was released last year after a judge found that prosecutors and police "repeatedly concealed relevant evidence" that pointed to Register's innocence.

Read the complete op-ed.

Prof. Natapoff Writes About Dark Side of Decriminalization

By Professor Alexandra Natapoff

California is doubling down on decriminalization. Three weeks ago, the passage of Prop. 47 converted a half-dozen felonies to misdemeanors. In 2011, marijuana possession was reclassified from a misdemeanor to an infraction without jail time. If Rip Van Winkle fell asleep a decade ago at the height of California’s prison boom and woke up this morning, he’d quickly recognize this as a scramble to undo decades of harsh and expensive policy.

The state is not alone — we are seeing a seismic shift in how the United States handles punishment, especially with respect to misdemeanor decriminalization. Marijuana is the most famous example, but many states are eliminating jail time for other minor offenses, such as driving violations and public order crimes, and replacing them with so-called “nonjailable misdemeanors,” “nonarrestable” or “fine-only” offenses, and “civil infractions.”

Read the complete op-ed.

The Ferguson Grand Jury: Lessons from the O.J. Grand Jury

By Professor Laurie Levenson

Yes, you read that right. There are lessons from the O.J. Simpson grand jury for the grand jury considering whether to indict Officer Darren Wilson for the shooting death of Michael Brown. Few people remember that the Los Angeles County District Attorney originally convened a grand jury to decide on the fate of celebrity defendant, O.J. Simpson. This was not surprising given that politically controversial cases are often thrown to the grand jury to take some of the heat off a prosecutor in deciding whether to bring charges. Unlike with federal cases, state charges generally do not need to go through the grand jury process. The District Attorney has the power to file charges directly and hold a preliminary hearing to determine whether there is probable cause to support those charges. However, a grand jury provides an elected official cover for making the decision to charge in difficult cases.

Ultimately, O.J. was not charged by the grand jury because they never got the chance to make that decision. The case was removed from the grand jury when the defense complained that pretrial publicity had tainted the grand jury process. Simpson’s lawyers claimed that Simpson’s due process rights would be violated by having a grand jury that had been exposed to the tremendous amount of media coverage and public comment decide whether he should be indicted.

Similarly, one can expect that if Wilson is indicted, his lawyers will challenge whether the grand jury process was tainted. Having a grand jury make its decision in the shadows of a National Guard alert is not an optimal way to run a justice system. The grand jury is supposed to be the buffer for individuals against public cries for justice. However, grand jurors are not immune from this pressure and, in an extreme situations, they may be affected as well. A motion to dismiss a grand jury indictment is almost never granted, but the motion itself will undermine any confidence in charges that are brought. In a case where the whole country is watching, that may be concern enough.

• Read more about the motion to quash the O.J. Simpson grand jury.
• Listen to Professor Levenson's commentary about the Ferguson grand jury on KPCC's AirTalk with Larry Mantle.

Who Will Police the Police?

By Professor Priscilla Ocen

This op-ed originally appeared in the Los Angeles Daily Journal on Sept. 22.

In August, Ferguson, Mo. — a small, predominately black suburb of St. Louis — erupted in protest after the shooting death of Michael Brown, an unarmed black teenager, by a white police officer. Following the shooting, Brown’s body lay prone on the street for hours, visible to neighbors and passersby as a gruesome reminder of the violent end to his young life. Brown’s death at the hands of police, however, was only one of many this summer. In New York, Eric Garner, another unarmed black man, was killed after he was placed a chokehold by members of the New York Police Department. In Los Angeles, Ezell Ford, an unarmed, mentally disabled black man, was shot and killed by members of the Los Angeles Police Department.

The deaths of Brown, Garner and Ford are not isolated incidents. According to the FBI, police officers, on average, kill over 400 people per year in what were determined to be “justifiable homicides.” This figure, however, likely underrepresents the number of police killings as it only includes self reported data from less than 10 percent of police departments and only those killings that have been deemed justified. Nevertheless, it is clear that the burden of deaths in police custody has fallen disproportionately on African-Americans. Annually, nearly a quarter of the 400 killings involve African-Americans. This means that African-Americans are killed by police almost twice a week in the United States. Indeed, in a recent report by Mother Jones magazine, it was found that blacks are roughly four times as likely as whites to die during arrest or while in police custody.

While the killing of African-Americans by law enforcement officers is a tragically common event, criminal penalties for police officers accused of killing African-Americans are startlingly uncommon. In one study of 21 high-profile shootings of unarmed African-Americans, only three officers were successfully prosecuted. As both St. Louis County and federal officials investigate the shooting death of Michael Brown, what kind of outcome should we expect if a criminal case is ultimately filed?

Loyola Hosts the Southern California Criminal Justice Roundtable

On July 29, Loyola hosted the inaugural SoCal Criminal Justice Roundtable, an intensive day-long paper workshop for criminal justice scholars from UCLA, USC, UC Irvine and Loyola. The next Roundtable will be hosted by UCLA. The drafts were fascinating: everyone agreed that the workshop was extremely engaging and helpful, and is looking forward to the next one.

The group discussed five works-in-progress:

Jennifer Chacon is writing about the intersection of immigration and the school-to-prison pipeline, delving into the little-understood impact of school discipline and criminalization on the protective legacy of Plyler v. Doe.

Sharon Dolovich’s draft analyses the doctrinal mechanisms that generate the descriptive and analytic gap between fundamental constitutional norms and the functional reality of the criminal system on the ground.

Ingrid Eagly is writing about the surge in video-conferenced immigration hearings for detainees and their impact on litigants, outcomes, and the entire immigration adjudication apparatus.

Sasha Natapoff is writing about the decriminalization of misdemeanors and how decriminalization policies can quietly exacerbate inegalitarian and punitive aspects of the criminal process.

Dan Simon’s draft addresses how law enforcement actors and practices influence and generate witness testimony in ways that fundamentally undermine the integrity of the evidentiary process.

Does 'privileged' communication in custody really exist?

By Professor Laurie Levenson, David W. Burcham Chair in Ethical Advocacy

This op-ed originally appeared in the July 29, 2014 edition of the Daily Journal.

Excerpt:

Recent reports suggest that federal prosecutors are increasingly intercepting emails between incarcerated defendants and their counsel for alleged security reasons. In the process, they are discovering incriminating evidence that they seek to offer against the defendants at trial. If true, this practice raises significant issues for the courts.

Communications between a defendant and his lawyer are supposed to be confidential. Yet, government officials are also allowed to monitor phone call and email communications. Courts must now decide when monitoring crosses the line and becomes improper interference with a defendant’s Sixth Amendment right to counsel.

The basic rule of custody is that inmates have no privacy rights - not when they are on the phone, not when they send emails, and not when they talk to other inmates. While attorneys are supposed to get confidential time with their clients, in-person meetings are difficult. And, under certain circumstances, even these may be monitored.

The net result is that it is increasingly more difficult for defense counsel to prepare for trial when the client is incarcerated. A single visit to jail to meet with a client may consume the attorney’s entire day. Even when arrangements can be made, there is precious little time for the attorney to solicit information from the client. Defense lawyers are left with the job of preparing a client’s case without much client input and clients are left feeling stuck on the sidelines as their case moves forward. Not only does this affect defense counsel's ability to represent a client, it also diminishes clients' trust in their counsel.

[Read the complete story at www.dailyjournal.com.]

The O.J. Simpson Legacy

By Professor Laurie Levenson

Twenty years ago, my life was changed by the so-called "Trial of the Century" -- the O.J. Simpson murder case. CBS asked me to serve as their Legal Commentator for the case. I was proud to do so. I worked with an extraordinary team of journalists, including anchor Dan Rather, to cover a case that was to have an enormous impact on Los Angeles and our legal system.

As an active law professor, I worked from 4:00 a.m. (when I did the morning shows) to 11:00 p.m. (when I appeared on late-night coverage). In between, I attended the trial, provided hour-by-hour analysis, and then taught my classes from 6:00-8:00 p.m. The students were enthralled by the case, so it really was an incredible teaching tool. I also wrote a daily column for the Los Angeles Times.

The O.J. case raised many important issues, including: (1) What impact do celebrity and race have on trials? (2) How should we address issues of domestic violence? (3) Should cameras be allowed in the courtroom? (4) How should jurors for high-profile cases be selected and should they be sequestered during trial? (5) How effective of a tool is DNA for prosecutors? (6) How much trust do the people of Los Angeles, particularly minorities, have in the LAPD? (7) What is the role of defense lawyers in trying their case in the media? (8) How much difference does venue make in a case? (9) How do individual evidentiary rulings, including the admission of testimony regarding "dream" evidence, affect a trial? and, of course, (10) What should be the role of a legal commentator?

Marissa Alexander and Overpolicing and Underprotection of Black Women

By Associate Professor Priscilla Ocen

This op-ed originally appeared on Ebony.com.

Marissa Alexander is a 33-year-old African-American woman who stands accused of three counts of aggravated assault with a firearm after firing a warning shot to ward off a violent husband whom she believed was attempting to kill her. The shooting occurred after her husband assaulted her multiple times---once landing her in the hospital with head injuries---and after he made credible threats to kill her. Nevertheless, a Florida state court rejected her self-defense argument, specifically the “Stand Your Ground” defense. Angela Corey, the same state prosecutor who unsuccessfully prosecuted the killers of Trayvon Martin and Jordan Davis for murder, is now seeking to imprison Alexander for up to 60 years, effectively placing a life sentence around a Black woman who—unlike George Zimmerman and Michael Dunn--had every reason to believe her life was in danger.

Read the complete op-ed.

Theft of Trade Secrets Brings Federal Conviction

By Professors Jeffery Atik and Karl Manheim

Stealing a trade secret (reprehensible though this may be) has generally not attracted federal criminal liability. Yet in the recent prosecution of David Nosal, the Justice Department applied a computer hacking statute to convict a departing employee for a rather run-of-the-mill trade secret theft: the unauthorized taking of customer lists. Many if not most trade secrets -- like the customer lists involved in Nosal -- are stored on computers. As such, aggressive use of the federal Computer Fraud and Abuse Act could convert many trade secret misappropriations -- traditionally civil offenses and a state law matter - into federal crimes. And this policy shift -- criminalizing and federalizing -- results from the determinations of prosecutors and judges, and not from Congress.

David Nosal worked for the executive search firm Korn/Ferry International until 2004 when he left to form a rival firm. Upon departure, he signed a standard non-compete agreement, but also recruited 3 fellow Korn/Ferry employees to join his new firm. Before those employees left, they downloaded proprietary customer information from the Korn/Ferry network and provided the confidential data to Nosal.

The Justice Department charged Nosal with 22 counts under the Computer Fraud and Abuse Act, 18 U.S.C. §1030, which prohibits, inter alia, unauthorized access to computer systems for fraudulent purposes. The fraudulent purpose in this case was theft of trade secrets.

Procedure Takes Center Stage in Stop-and-Frisk Litigation

By Katherine A. Macfarlane '06, Guest Alumni Blogger

Teaching Fellow and Assistant Professor of Professional Practice, LSU Law Center

On October 31, 2013, the Second Circuit took the unusual step of removing Southern District of New York Judge Shira Scheindlin from two high-profile stop-and-frisk cases: Ligon v. City of New York and Floyd v. City of New York. Ligon is a Section 1983 class action challenging the NYPD's trespass arrest policy, or "Operation Clean Halls," a program through which NYPD officers patrol private apartment buildings across New York City. Judge Scheindlin oversaw Ligon since its filing in March 2012. Floyd, also a Section 1983 class action, challenged the NYPD's street-level stop-and-frisk practices, arguing that they amounted to racial profiling. Floyd was filed in January 2008, and immediately assigned to Judge Scheindlin.

The Floyd trial began in March and lasted nine weeks. Thirteen days before the Floyd trial began, the Floyd plaintiffs withdrew all claims for damages, and as a result, Floyd was tried to Judge Scheindlin, not to a jury. Floyd was decided in an August 12, 2013 order spanning 193 pages. Therein, the judge granted a sweeping injunction against the NYPD that ordered changes to NYPD policies and activities, appointed a monitor to oversee stop-and-frisk practices, required a "community-based joint remedial process to be conducted by a court-appointed facilitator," and ordered that one precinct in each of New York City's boroughs place body-worn cameras on their police officers. On the same date, Judge Scheindlin entered a similar decision in Ligon, ordering changes to the NYPD's trespass arrest policies, oversight by the same monitor appointed in Floyd, and revision of NYPD training materials and programs. In its October 31 order, in addition to removing Judge Scheindlin from Floyd and Ligon, the Second Circuit stayed the orders in Floyd and Ligon pending appeal.

But why was Judge Scheindlin removed? In its October 31 order, the Second Circuit found that Judge Scheindlin violated the Code of Conduct for United States Judges due to the appearance of partiality created by her "improper application" of the Southern District's "related cases rule," as well as "by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court."