Updates in the War on Civilian Privacy by Josh Dratel

Great points and great piece. Hats off to Josh Dratel and Guernica.

With surveillance cameras on every corner and our smartphones tracking our every move, we've entered a new era of the war on civilian privacy.

Image from Flickr via jonathan mcintosh By Josh Dratel

The war on civilian privacy has escalated. Recently, Congress the FAA Modernization and Reform Act of 2012, which allows for the commercial use of surveillance drones in the United States. And in late March, the Obama administration revised guidelines with respect to the U.S. National Counterterrorism Center’s retention of data on law-abiding persons.

According to the New York Times, those revisions were designed in part “to relax restrictions on how counterterrorism analysts may retrieve, store and search information about Americans gathered by government agencies for purposes other than national security threats.”

Among the revisions is an increase in the length of time—from 180 days to five years—that the NCTC can, according to the Times, which cited intelligence officials, “retain private information about Americans when there is no suspicion that they are tied to terrorism.” Under the prior guidelines, such information would have to be destroyed after expiration of the 180-day period. Also, as the Times reported, “the guidelines are also expected to result in the [NCTC] making more copies of entire databases and ‘data mining them’ using complex algorithms to search for patterns that could indicate a threat.”

Security cameras increasingly cover every swath of territory; checkpoints, both governmental and private, abound; surreptitious software can capture every computer keystroke; every e-mail is retrievable, and every phone conversation is capable of interception.

The general counsel in the Office of the Director of National Intelligence characterized the superseded guideline period as “very limiting,” explaining to the Washington Post that “On Day One, you may look at something and think that it has nothing to do with terrorism. Then six months later, all of a sudden, it becomes relevant.”

Read the rest at Guernica. 

The "Knock and Talk" Being Doubly Wary of Speaking to Police

Another example of the advice that one should not speak to police is particularly apt for people who may be suspected of growing marijuana.

Euphemistically, here in NJ, police call one of their particular marijuana related operations a “knock and Talk.” The operation is anything but. When police suspect that marijuana may be grown in a house they organize multiple agencies to “respond” on a predetermined date and time to the location – a show of force. Indeed during cross examination police have conceded that a “ knock and talk” is organized just as a forcible search warrant raid would be.

It usually goes down like this: Police have only a mere suspicion that folks are growing marijuana in their homes. Maybe they have been tipped off by informants at a growing supply store (which of course sell an entire range of legal articles); maybe the police have done an illegal drive by thermal imaging of a house to see if heat from some kind of grow situation exists.

As an aside, its illegal for police to do a thermal imaging scan of a home without a warrant. But if they do one and then intimidate the owners to “consent to a search,” the illegality goes by the wayside as the law will see the consent as “ curing” the illegality.

In any event, for the “ knock and talk,” police show up in force. Some go to each entry/exit of the residence. (Query if its just a knock and talk, by virtue of what right would cops have to stop anyone from leaving the house and refusing to talk. None, really). Yet too often faced with intentional, intimidating show of force, people often “consent” to let police in their homes. At that point cops usually talk the occupants into signing a “consent to search form” by misleading the occupant about the fact that once signed the form will allow police to search all areas of the residence and every nook and cranny, totally tossing the contents about if the police wish.

The best advice to deal with a “knock and talk” is simply not to open the door and certainly not allow police consent to search the home. As with speaking with police, one should be extremely hesitant to sign anything, like a consent from, with out a lawyer present. Since police have no search warrant when conducting a knock and talk, it is not necessary to open the door, one could speak through the door if they wish. Stories are legion about how once inside the house police allege that they smell marijuana and can then get an actual warrant.

The “knock and talk” is a bit of NJ legal schizophrenia. Because of proven abuses with racial profiling, police need a reasonable basis to even ask to search a car. But, our Supreme Court has reasoned, the home was not the site of such abuses - despite the inherently intimidating and abusive nature of the “knock and talk.”

Lastly, it bears repeating that purchasers of growing equipment, even on line, have been regularly subjected to “knock and talks.” In fact to help put a light on the issue, it would be helpful to start gathering details of “knock and talks” that netted nothing other than legal indoor growing materials. .

Jack Cole's Article on New Jersey's Need to Decriminalize Marijuana

I wanted to re-run this piece in The Press of Atlantic City by Jack Cole which points out that even law enforcement recognizes the failure of marijuana criminalization.

New Jersey Should Fight Crime by Decriminalizing Marijuana by Jack Cole

As a former undercover narcotics detective with the New Jersey State Police, I might be the last person you'd expect to see supporting a new marijuana decriminalization bill in the state Assembly. But my experience on the front lines of the so-called "war on drugs" is exactly what led me to support fundamental changes to failed prohibition policies.

And I am not alone in this belief. Law Enforcement Against Prohibition (LEAP), a nonprofit education organization of 50,000 police officers, judges, prosecutors and others also understands that prohibiting marijuana doesn't prevent people from using the drug but it does create a number of additional problems.

Keeping marijuana illegal afflicts thousands of people every year with criminal records they don't deserve. Less obvious but of concern to users and non-users alike, is that the time police spend arresting people for marijuana distracts from the time they could be using to prevent or at least investigate violent crimes.

In the United States, our overburdened police departments are unable to solve four of 10 murders, six of 10 rapes, seven of 10 robberies and nine of 10 burglaries. Yet each year our prohibition laws result in our police taking time out to make more than 800,000 arrests for marijuana offenses. The policy of prohibition therefore constitutes a grave threat to public safety.

Thankfully, an increasing number of lawmakers are taking a serious look at changing the state's marijuana policies. State Assemblymen Reed Gusciora, D-Mercer, and Michael Patrick Carroll, R-Morris, along with 15 additional co-sponsors, introduced a bill this month that would remove criminal penalties for adults possessing fewer than 15 grams of marijuana.

Besides allowing police officers to focus on more important things, this bill would free up space in our overcrowded jails and save taxpayer dollars that could instead be used to fund schools, roads and health care.

Harvard University economist Jeffrey Miron says New Jersey spends $183 million enforcing its marijuana prohibition laws every year. In 2009, a good portion of that money was spent arresting more than 22,000 people in New Jersey for possessing small amounts of marijuana.

The bipartisan support for the decriminalization bill is encouraging, but its passage will hardly be a slam-dunk. Consider what has happened with the state's medical marijuana policy..

In late 2010 Gov. Jon Corzine signed a popular medical marijuana bill into law. In his campaign to succeed Corzine, current Gov. Chris Christie expressed support for medical marijuana "in concept."

That concept appears to embody the goal that medical marijuana will never be available in the Garden State. The Christie administration continues to erect roadblocks to the law's implementation. Christie wants federal assurance that medical marijuana workers would be immune from federal prosecution - a guarantee everyone knows Washington would never make.

Christie's effort to forestall medical marijuana flies in the face of decades of law-enforcement experience and scientific research.

In my 26 years with the New Jersey State Police, I worked with talented people who fought the drug war courageously. We arrested many people for marijuana and seized enough of the stuff to fill warehouses. But the fatal flaw to prohibition is that no level of law enforcement skill, commitment and resources - or increased arrest numbers - can ever end an activity that is popular and extremely profitable.

When former law enforcers are calling for changes to the marijuana laws, there's simply no excuse for politicians to continue the status quo.

While some might be afraid of the newness of change, no one can claim what we've been doing is working. Four out of 10 Americans - some 100 million people - admit to having used marijuana.

But marijuana prohibition has worked exceptionally well for one sector: the gangs and cartels that control its currently illegal distribution and profits. The Mexican drug cartels reportedly make up to 70 percent of their profits from marijuana sales alone, and the Justice Department says that they have already set up shop in 230 U.S. cities.

Legalized regulation of marijuana would deal a stronger blow to these criminal syndicates than law enforcement crackdowns ever have or will.

While decriminalizing possession of marijuana in New Jersey won't stop the black market - only legalized regulation can do that - it is still a big step toward correcting the misguided policy of prohibition.

New Jersey should join the 14 other states that have chosen to impose a fine instead of jail time for marijuana possession.

Jack Cole is a retired New Jersey State Police narcotics detective. He is co-founder and board chairman of Law Enforcement Against Prohibition. The group's website is www.CopsSayLegalizeDrugs.com.

Some Drug Sanity In New Jersey?

From Freedom is Green - maybe a breath of fresh air for New Jersey's present draconian posture.

NJ Legislators Support New Marijuana Decrim Bill by Chris Goldstein

Sensible New Jersey logo by Garret Overstreet Web Design and Heather Kumer

6/29/2011 – The Garden State is joining the national discussion about changing marijuana laws. A bi-partisan bill to remove criminal penalties for adults in possession of a small amount of cannabis was introduced today in Trenton with strong initial support. A4252 “Decriminalizes possession of 15 grams or less of marijuana.” The bill has seventeen sponsors led by Assemblymen Reed Gusciora (D-25) and Michael Patrick Carroll (R-15).

New Jersey performs more arrests for marijuana than for all other drugs combined. In 2009 (the most recent data) 22, 439 people were arrested for possessing less than 50 grams of cannabis. Currently, adults caught with anything from a joint to two-ounces are treated the same way, with a custodial arrest and a criminal prosecution.

The language of the bill will be available soon on the Legislature’s website: http://www.njleg.state.nj.us/. Right now the only information online is the impressive list of initial sponsors.

Gusciora, Reed as Primary sponsor

Carroll, Michael Patrick as Primary Sponsor

Vandervalk, Charlotte as Co-Sponsor

Vainieri Huttle, Valerie as Co-Sponsor

Coutinho, Albert as Co-Sponsor

Tucker, Cleopatra G. as Co-Sponsor

Caputo, Ralph R. as Co-Sponsor

Ryan, Kevin J. as Co-Sponsor

O’Scanlon, Declan J., Jr. as Co-Sponsor

Diegnan, Patrick J., Jr. as Co-Sponsor

Stender, Linda as Co-Sponsor

Lampitt, Pamela R. as Co-Sponsor

Johnson, Gordon M. as Co-Sponsor

Jasey, Mila M. as Co-Sponsor

Rumpf, Brian E. as Co-Sponsor

Coughlin, Craig J. as Co-Sponsor

Casagrande, Caroline as Co-Sponsor

“We are excited to begin this conversation in the Legislature and will continue to lay the foundation for this groundbreaking effort to cut costs and end the failed practice of criminalizing otherwise productive members of society for possessing a substance that is less dangerous than alcohol,” stated Victor Pinho, a Sensible New Jersey coordinator and NJ Chapter Coordinator for SSDP.

Check back soon at freedomisgreen.com for updates on this emerging topic.

Always Remain Silent - What to Do when Questioned by the Police

I have practiced criminal law for over 30 years. I am still mystified as to why people under investigation speak to police. To try to help my clients I have placed on the back of my card the following:

My lawyer has told me not to talk to anyone about my case, not to answer questions, and not to reply to accusations. Call my lawyer if you want to ask me questions, search me or my property, do any tests, do any lineups, or any other identification procedures. I do not agree to any of these things without my lawyer present and I do not want to waive any of my constitutional rights. If I am being charged with DUI, I agree to a breath test.

Unfortunately too many people reach my office after they have spoken.

Let me be succinct: Of those of my clients convicted of an offense, 90% or more are convicted, at least partially, by something that came from their own mouths. The reasons clients give me for speaking are legion: “I just wanted to be cooperative; the police threatened me; I had nothing to hide;” etc.

Yet all excuses beg the question: Can you severely prejudice your case – guilty or innocent– if you speak to police. The answer is an emphatic “YES.”

I would note that a common misunderstanding among Americans is the fear that refusal to answer implies guilt. Whether this is true or not or what people may think of your decision to exercise your Fifth Amendment right (i.e. silence), should be dramatically overshadowed by the fact that what you consider a simple answer could land you in prison.

The fact is, if you allow the police to question you absent legal representation, anything you say can and will be used against you in court. “Cooperating” with the police without an attorney will only hurt you, primarily because your statement can only be used against you, and never for you.

Police are trained in psychological methods to get you to talk. Moreover, when you speak, they may paraphrase any statement you make and twist it to imply guilt. When you think you are just being a good citizen, police may be paraphrasing your words to help get a case off their blotter. Not all statements must be electronically recorded.

This last point bears emphasis. Many states do not require statements to be recorded, let alone video recorded. When you waive your right to remain silent, police may simply take down notes and then say what they allege you said. Even of those state’s that require formal confessions to be taped, they don’t usually require tapes of supposed voluntary statements when you are not in actual “custody.”

“Custody” is a subject on which I could write a thesis. Suffice it to say that if you are supposedly free to leave, you may not be in custody from the standpoint of the law. If you are not in custody, police do not have to read you your rights.

Too many wannabe lawyers thought they’re statements were immune because they had not been “read their rights.” Wrong, anything you say in or out of custody will be used against you. Indeed you may be free to leave when you enter a police station, especially if you keep your mouth shut, but could find yourself arrested if and after you decide to talk.

Another misconception is that unless your statement is “formal” i.e. recorded, it won’t be used against you. Don’t be mislead. The fiction of a “formal” versus an informal statement is a law enforcement euphemism. Any discussion, anything you say “on or off the record” is fair prosecutorial game.

You are best protected – innocent or having done something inappropriate under the law – remaining silent at all stages of your interaction with police. Even for the “guilty,” keep in mind the notion of overcharging. One may be culpable of a minor offense but their words could be paraphrased to make it seem that they are guilty of much more serious offenses.

I would be remiss is I didn’t also say something about those “civic minded” souls who speak because they just want to be helpful or didn’t want to seem guilty. The proof is in the pudding. Frankly, almost every “helpful” person I have represented has had the book thrown at them, meaning they ended up having every charge that an officer could imagine filed against them. As to the implication of guilt, please remember that for the most part, the invocation of your right not to speak cannot be used against you.

Unfortunately, in the event of a trial, your statement cannot be recalled in your defense because in this capacity, it is considered hearsay. If it sounds like the intention is to trick you into incriminating yourself, it is! Most police officers will not fall short of intimidation in attempting to solicit your “cooperation” in being questioned without representation. They understand the law, and know that the more they can get you to say, the better the chance of conviction.

It is astounding to note that The Innocence Project reports that 25% of all DNA-exonerated prisoners made incriminating statements, gave outright confessions or plead guilty while being questioned without an attorney. Moreover, 86% of all defendants plead guilty before trial. WHY?! Even if you are guilty, there is no reason for you to clear your conscience to the police without legal consultation/representation.

It is your lawyer’s business to advise you of your rights, what to say, what not to say, and use all of this to advocate in your best interest. The legal profession is considered a “profession” because, while all laws and rights are readily available for citizens to read, learn and exercise, realistically, most of the population is completely unaware of the complexities and nuances of the American legal system - and what’s worse, the system’s inclination to harm you rather than protect you.

This is an attorney’s function…to protect you from the law. There are twenty seven thousand pages in the Body of Federal Criminal Law. This translates into over ten thousand random, miscellaneous ways to convict you of crimes you didn’t even know existed.

So if ever you are approached by police for “simple questioning”- please - JUST SAY NO or insist that your lawyer be present no matter how intimidating, threatening or even violent the encounter may be. It is far better to take abuse up front than to make a statement that can be used to hurt you for a much longer period of time.

William H. Buckman Law Firm
110 Marter Ave., Suite 209
Moorestown, NJ 08057
(856) 608-9797

Wrongful Conviction: The Dangers of Eyewitness Testimony

There are currently close to two million American citizens behind bars. This number is unsettling, even under the assumption that the entire two million are truly guilty of the crimes for which they have been convicted and incarcerated. But what if there was one of them, just one, who was living in filth, bondage and constant danger- as punishment for a crime he or she did not commit?

Sadly, this has been the unfortunate experience of numerous citizens who have served time and subsequently been proven innocent- as well as undetermined numbers of current American inmates of the United States Department of Corrections. In the last twenty years there have been 265 post-conviction DNA exoneration rulings in the United States. And while DNA testing is a progressive means of clearing wrongfully convicted citizens, what about those convicts who are as innocent as those given DNA exonerations, but whose cases are not subject to the absolution that DNA evidence provides? For example, of the 265 DNA exonerated persons, 75% of them were convicted due to eyewitness misidentification testimony. Simply stated, the identifying witness was WRONG.

Wrongful conviction due to eyewitness misidentification has been a subject of social and legal controversy since the early 1900’s. Before DNA testing and the accuracy of modern technological forensics, individuals questioning the absolute precision of human recollection led to the 1911 release of Andrew Toth- a PA steelworker and victim of faulty eyewitness testimony who spent 20 years in prison for a murder he did not commit. Twenty years later Yale law professor Edwin Borchard wrote, Convicting the Innocent, a provocative work in which he chronicled 65 cases of wrongful convictions, 39 of which resulted from incorrect eyewitness testimony. That is an astonishing 60% wrongful conviction due to witness misidentification, in the early 1930’s.

With millions currently incarcerated, and the availability of DNA testing exonerating over two hundred since 1989, how many innocent Americans are doing time as a result of faulty witness identification and testimony in 2010? The American criminal justice system’s unquestioning acceptance of eyewitness testimony as solid evidence is becoming increasingly irresponsible. Considering the high percentage of proven misidentification cases as related to DNA exonerations, policy improvement in the eyewitness identification and testimony process is long overdue.

Organizations like The Justice Project http://www.thejusticeproject.org are working to reform the system by pushing for better policies and procedures, including adopting sequential line-ups and “double blind” administration, in which the suspect is not known to the administrator. These initiatives serve to take pressure off the witness, helping to insure a proper identification - if there is one to be made.

In the U.S. Supreme Court case of Manson vs. Brathwaite, an under-cover officer and an informant purchased heroin from a suspected narcotics dealer. The suspect was charged with dealing heroin. However, no line-up was ever conducted and the respondent was identified on the strength of but one photograph. No objection to the identification procedure was registered by the defense during trial, but after sentencing the Court of Appeals reversed the District Court’s denial of a writ for habeas corpus.

Subsequently, this case allowed the suppression of tainted eyewitness testimony in American courts rare, and has inaccurately remained controlling case law despite mounting scholarly research refuting the Brathwaite court’s views on human memory.

Consistent unreliability in a procedure so integral to the determination of limitations or termination of the freedoms of American citizens is unacceptable. In addition to pure human error, the margin for pre trial identification evidence obtained by suggestive and unnecessary police procedures is far too wide. The witness identification and testimony process of the American judicial system was considered flawed and questionable as early as 1911- yet has since remained largely unchanged, if not less scrutinized. From capital murder to car accidents witness identification is far too influential in the outcome of cases to continue in its unquestioned status in American criminal law. Wrongful conviction is a traumatic, devastating mistake that takes years from its victims lives, ruins families and causes irreparable damage. Eyewitness misidentification is responsible for more than half of all wrongful conviction cases. This statistic alone, justifies radical reformation.

Indeed, in New Jersey retired appellate judge Geoffrey Gaulkin was appointed by the New Jersey Supreme Court to study the reliability of eyewitness testimony and procedures. Gaulkin’s report called for extensive reforms given the potential unreliability of the practice. www.nytimes.com/2010/06/22/nyregion/22witness.html; http://www.criminallawlibraryblog.com/2010/06/new_jersey_report_of_the_speci_1.html.

Organizations like The Innocence Project and The Justice Project are pioneering real change. Click on the links to learn more, or donate to their efforts.

The New Jim Crow

“There are more African Americans under correctional control today in prison or jail, on probation or parole than were enslaved in 1850, a decade before the Civil War began.”

”As of 2004, more African American men were disenfranchised (due to felon disenfranchisement laws) than in 1870, the year the Fifteenth Amendment was ratified, prohibiting laws that explicitly deny the right to vote on the basis of race. ”

”A black child born today is less likely to be raised by both parents than a black child born during slavery. The recent disintegration of the African American family is due in large part to the mass imprisonment of black fathers.”

”If you take into account prisoners, a large majority of African

American men in some urban areas have been labeled felons for life.”

These are quotes from “The New Jim Crow”, a recent article by Michele Alexander of The Huffington Post. And as outrageous as these facts are, they do not touch upon the full impact of racism in the American criminal justice system.

Most states, including New Jersey, have bail “guidelines” - a euphemism for the refusal of judges (or agencies which exert control over those judges) to individually assess one charged with an offense to determine if he or she will return to face the new charges.

Bail, traditionally and constitutionally, exists to insure that one who is not guilty and indeed presumed innocent will return for trial. It was never to be one-size fits all proposition that punishes rather than respects the presumption of innocence. Indeed, in the New Jersey Constitution, bail is mentioned as a right more than almost any other.

But bail “guidelines” punish mostly the poor and people of color before trial. Five thousand dollars means little to an upper middle class defendant yet represents the difference between pre-trial freedom and incarceration to one who is impoverished. Conversely, five thousand dollars, in a one-size fits all system, bears little relation to a well-off person’s motivation to return.

Stuck in jail, with the attendant loss of a home and job– not to mention the conditions like no medical care-- even totally innocent people will plead out to get out or end the limbo. Of course this, as noted, applies mostly to people of color. Once convicted by way of this institutionally coerced plea bargain, an innocent person is converted to a felon. Jim Crow then comes full circle as felons can’t vote.

So it is little wonder that in addition to its racially skewed prison population, New Jersey county jails are generally overcrowded hellholes teeming with people of color with little means. Forget the presumption of innocence. If you are poor, your punishment starts with the simple but often mistaken word of the policeman.

Even those lucky enough to obtain bail must face a gauntlet of institutionalized racial barriers that ensure radically more people of color end up in prison. Even in supposedly “progressive” states like New Jersey, the imbalance is nothing short of shameful.

Laws requiring mandatory minimums are more likely used against minorities. For example, mandatory sentences for drug sales or possession near schools impacts minorities in the inner city simply because there are tighter quarters and almost no areas are beyond the school zone boundary - not so for the less crowded and more affluent suburbs.

And the list goes on.

Suffice it to say that The Huffington Post notes the outrageous symptoms of our criminal justice system. But our criminal justice system and how it continues to criminalize color must be decoded more aggressively for real change to occur.