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President Donald Trump’s Early Influence on the Criminal Justice System and Law Enforcement

Donald Trump, via Wikipedia

Donald Trump, via Wikipedia

By Ross Parker
ticklethewire.com

President Trump is a media magnet, for better or worse. Debates on public policy and personal peccadilloes whirl so fast that it seems fair to step back and try to ignore the daily sensations and make a preliminary assessment of his successes and failures in the law enforcement and criminal justice arenas.

Relations with Law Enforcement Agencies

Candidate and now President Trump often voices an intention of becoming a supporter and partner with police and federal agents. He vocally repeats the warnings from the War on Drugs contingent and openly chose their tenets over Black Lives Matter. He promises more support, financial, executive, and legislative, and he declares new policies and priorities.

The jury seems to still be out on whether these promises are going to be implemented but law enforcement seemed at least open-minded after their general ambivalence for Obama. But Trump’s “buddy” plan took a serious hit in the last few days when he abruptly fired the well respected head of the largest and most influential law agency in the nation, if not the world.

Last week Trump fired James Comey, the Director of the FBI. In the Bureau’s almost 100 year history this had occurred only twice previously:  President Richard Nixon fired the director while the nation was in the throes of Watergate, and President Bill Clinton fired William Sessions in 1993, shortly after Clinton took office.

Although Comey had drawn some criticism by his disclosures a few days before the election that the Bureau was re-opening and then re-closing the investigation on candidate Hillary Clinton, most thought that, however misguided, the comments were not intended to affect the election or have any other ill intent. Whether they did or did not doom her election hopes is another subject.

Contrary to Trump’s protestations, Comey was and continues to be highly regarded by other law enforcement agents, Congress, and the public at large. With the men and women of the FBI, the issue is personal.

It was also the way it was done, its peremptory quality, the prevarication and confusion among Trump, his staff and spokespersons. The Director found out he’d been terminated on a TV news program. It was the kind of Amateur Hour we have come to expect from this Administration.

Ironically ,Trump’s firing resulted in the disclosure of his meddling/obstruction of the investigation of fired National Security Coordinator Michel Flynn. Trump’s remarks to Comey about closing the Flynn investigation would probably never have seen the light of day absent the firing. Not the first time Trump stepped on an important part of his anatomy.

The flare-up of violent crime statistics, concern about increasing assaults on police, general ambivalence toward Obama policies—all of these factors provided an atmosphere in which President Trump could have cemented relations with law enforcement. But the Comey affair and Trump’s meddling in several other DOJ cases and policies seem to have made this a lost opportunity for him to build an alliance with law enforcement.

Supreme Court and the Judiciary

Another potentially positive area was in his judicial appointments. From a law enforcement perspective, if the measure of the value of Justices and judges is their tendency to rule for the government in criminal cases, then the selection of Justice Gorsuch to fill Justice’s Scalia’s seat was a big win for Trump.

But the win came at a price. The absence of a Justice for a year meant that the Court was stuck in third gear and could not resolve some important questions which have split the lower courts.

Then, too, the politicization of the selection process and the abandonment of the 60 vote rule in the Senate will impact the process negatively for decades. The emphasis on broad-based excellence has been de-emphasized a notch for a candidate’s predicted loyalty on a few hot-button issues. The fact that we appeared to have gotten a Justice of excellence and integrity in Justice Gorsuch does not entirely absolve the methods and intentions of the selection process.

Moreover, the general dysfunction of both Congress and the White house has, thus far, left hundreds of vacancies for new federal judges and U.S. Attorneys unfilled.

Finally, going back to the original rubric for judging success in this category, there is undoubtedly an undetermined segment of the law enforcement community and the population at large which holds that there is more to assessing success in choosing judges than their predictability for government-favored rulings. Excellence, independence, wisdom, legal acumen, and courage—have these attributes been de-valued by Trump and his architects for criminal justice?

Criminal Justice Reform

For the first time in several decades there appeared to be broad-based, bipartisan support for making progressive changes to the criminal justice system. From Senator Rand to Congressman John Conyers (a wide spectrum indeed), consensus was building toward reform.

Rep. John Conyers

Rep. John Conyers

But the President and his Attorney General Jeff Sessions are not only opposed to this movement, they apparently want to roll back policy to the get-tough rhetoric of two and three decades ago. AUSAs are directed to seek the most severe charges and sentences in drug and gun cases. Mandatory minimums are back in favor. Prosecutions of marijuana cases in recreational use states have been threatened.

It’s Nixon’s War on Drugs Redux. Even those of us who have consistently opposed marijuana legalizations shudder at the prospect now at sending DEA agents and AUSAs to put the genie back in the bottle.

Trump/Sessions DOJ has also done a 180 on civil rights investigations of local police departments, even to re-examining all existing consent decrees. Many police will welcome the end to what they consider to be obsessive micro-management from Washington. Others, however, found DOJ’s participation to serve as a pragmatic buffer between community groups and the police. Communities like Baltimore considered the decree to be the foundation for a strengthened department.

Trump’s description of a terrible crime wave gripping America paints a bleak picture, particularly in the cities. Some think this rhetoric denigrates the hard work by law enforcement which had resulted in a 42% decrease crime statistics. Still, most agree that violent crime, especially since 2015, continues to be a stubborn and dangerous problem, along with the opioid epidemic. A fresh approach and commitment would be a real achievement by President Trump. So far, however, we have seen only fear mongering and proposals like The Wall and widespread deportations.

The Law Enforcement Leaders, made up of over 200 police chiefs, have made five policy recommendations to the President and Attorney General:

1.    Focus on violent crime with DOJ’s priorities and resources.

2.    Reduce unnecessary time behind bars. Lock up the worst.

3.    More resources for mental health and drug treatment, which cannot be addressed successfully in jail.

4.    Build up Community Policing with local programs and information clearinghouses.

5.    Reduce recidivism by supporting prison education and treatment programs, residential re-entry centers, and home confinement for those nearing release.

President Trump seems inclined to support the first and part of the third proposals (opioid treatment). His present plan seems inconsistent with the second and fourth, although they would be worthwhile topics for the task force to reduce crime which he has created.

Law Enforcement Budgets

The quickest way to a law enforcement agency’s heart is through its wallet. Two months ago Trump announced that his first budget would include significant increases in law enforcement spending. That, of course, would be welcome news for agencies whose increased costs have not been met by increased budgets. Plus the Administration’s announced expanded expectations will be costly.

The problem is that any budget increases will be met by the pressure to cut spending to justify a tax reduction. So this is another one in the wait-and-see category.

Bureau of Prisons

President Obama cut the federal prison population by about 10% through an unprecedented use of his clemency power, reduced Sentencing Guidelines and legislative changes in sentencing. The result caused the prison overpopulation pressure to ease and almost ended the use of “private prisons.”

None of these policies seem at all likely in the Trump Administration, whose plans will fill the prisons up again and bring back budget and infrastructure concerns. Sessions’ direction for tougher charging and sentencing policies will accelerate this trend. Plus he has announced an intention to reverse Obama’s executive order to close private prisons.

All of this portends a significant increase in the BOP budget. Some, perhaps many, in law enforcement will applaud this result. However, the discovery by criminal justice “reformers” in Congress that these policies have a price tag may well put them in opposition to the President’s plan to lock more miscreants up.

So what’s the verdict on Trump’s early influence on the criminal justice system? Like the rest of his actions, it depends on the point of view of the listener. But, over all, it appears to be something which once held promise but seems to be trending downward. Beyond content and result is the method. There seems to be only limited thoughtful planning and consultation with career experts.

Like much of Trump’s policy pronouncements, it has a shoot-from-the-lip quality.

___________________________________________________________

This is my 100th column for Ticklethewire, a milestone of note only to writers who are “counters.” Whatever the future holds, I want to thank Allan Lengel for his help and indulgence, and to the readers who give me feedback, especially the ones who care enough to disagree.

Deputy Attorney General Rod J. Rosenstein, The Canary in the Coal Mine, Already Gasping for Air

Rod Rosenstein, deputy attorney general.

Rod Rosenstein, deputy attorney general.

By Allan Lengel
ticklethewire.com

Deputy Attorney General Rod J. Rosenstein, a former U.S. Attorney from Baltimore, is the canary in the coal mine for the Justice Department. In very short time, in that role, he’s already gasping for breath, having been put smack in the middle of the firing of FBI Director James Comey.

The phrase “canary in the coal mine” refers to caged canaries miners would carry down into the mine tunnels. If dangerous gases collected, the gases would kill the canaries before killing the miners. In this case, the dangerous gases could be the dubious demands by President Donald Trump that could compromise the Justice Department, and ultimately kill the canary’s government career.

Skeptics of the Trump administration have always expected that Attorney General Jeff Sessions would play politics and try to please his boss, the president.  But Rosenstein, a career prosecutor who has worked under both Republican and Democratic administrations, has a reputation as a straight shooter. The expectation is that he’ll stand up and say no if Trump tries to compromise the department. If Trump pushes too far and won’t back off, everyone assumes he’ll get fired or quit.

But very quickly, he’s already gasping for air.

Rosenstein authored a letter for the president detailing how Comey acted inappropriately during the Hillary Clinton email probe and implied he should be fired, but never said it outright. Trump then shot off a letter to Comey, saying he was going by the recommendation of Rosenstein and Sessions to fire him. Skeptics found it hard to swallow that Trump had concerns for Clinton.

Yellow canary - Serinus canaria on its perch in front of a white background

Rosenstein apparently felt duped, or at least that’s how it’s being portrayed in the press.

The Washington Post reported that Rosenstein threatened to “resign after the narrative emerging from the White House on Tuesday evening cast him as a prime mover of the decision to fire Comey and that the president acted only on his recommendation, said the person close to the White House, who spoke on the condition of anonymity because of the sensitivity of the matter.”

People will be closely observing, paying close attention to see if  the chirping continues to come from Rosenstein’s new office at Justice, or whether at some point, it’s silenced.

 

In the Age of Social Media, The Legal Duty to Report Crime

By Ross Parker
ticklethewire.com

Over the weekend NBC News and other media reported a story of the sexual assault of a 15-year-old girl in Chicago by a group of juvenile boys. The painful media “angle” of the report was that the offenders had broadcast the brutal assault to 40 Facebook viewers, none of whom had reported the crime to police.

The Chicago Police Chief stated that he was uncertain whether any of the viewers would be charged criminally. He said that he was “disgusted” by their inaction and added, “Where are we going in society?”

The incident follows another one in Chicago in which 4 people taunted and beat a mentally disabled man and broadcast the crime, also by Facebook.

The most recent Chicago case occurred 53 years, almost to the day, after the notorious rape and murder of Catherine “Kitty” Genovese in March 1964, while observers saw and heard the brutal stabbing and her cries for help. A sensationalized New York Times article, two weeks after the murder, reported that 38 people had watched the murder and did nothing about it.

The article shocked readers across the country and came to represent a widespread “truth” about apathy in the big cities, the breakdown of the values of the 1950s, and the social anxieties of the years which followed.

Many of us became familiar with the Genovese case in our Psych 101 and Sociology textbooks in college, under the title “Bystander Effect” or “Bystander Syndrome,” as the supposed tendency of large groups of people who witness crimes to refuse either to come to the aid of the victim or to call the police. Dozens of movies, TV shows, books, and songs decried the “Bad Samaritan” tendency of people who predominated in modern life.

The problem with the story and its widespread consequences was that most of the reported “facts” were not true. Fifty years later studies showed that the events had been grossly exaggerated and inaccurate in many respects, especially the overstated number of  witnesses (actually probably 5 or 6, some of whom did call the police and try to help the victim). Only one man indicated that he had seen and heard  the assault and “did not want to get involved.”

Ironically the case did have some positive effects, the most obvious of which was the creation of the 911 police emergency system. And there have been other developments, good and bad, which have resulted from the popular reaction to the Genovese case.

But the media and police reports about failure of witnesses to come forward and assist in investigations have continued regularly. Which raises the question, what are the legal implications of the failure of a witness to report a crime?

It’s Misprison

The deliberate concealment of a person’s knowledge of a crime by a non-participant is called misprision. It was first recognized as a common law misdemeanor in 16th Century England and over the centuries it spread to the colonies.

Eventually statutes defining misprision replaced the common law. In the federal criminal code misprision is in 18 USC Sec. 4 (Whoever with knowledge of the commission of a felony conceals it and does not as soon as possible make it known to a person of authority is punishable by a potential $250,000 fine and a maximum of 3 years in prison.)

However, the general principle is that there is no legal duty to report crimes. Mere silence does not constitute criminal concealment. Misprision requires as elements a knowing and an affirmative act of concealment of the crime.

Although misprision has been a crime in the U.S. since 1789, it continues to be misunderstood and rarely employed by prosecutors. It is often confused with the crimes of acting as an accessory after the fact and obstruction of justice, each of which focuses on giving aid to a criminal.

Commonwealth v. Lopes (Mass. 1945) illustrates some of the difficulty with the statute as well as its legal distinctions with other offenses. There the defendant failed to report the discovery of a child’s body because to do so would expose his having an affair. The conviction was reversed because the defendant’s intent was to protect his exposure from a crime (adultery) not to conceal the discovered crime. But compare the case with US v. Baumgartner (6th Cir.2014)(misprision conviction upheld where a Tennessee judge lied to prosecutors and another judge to protect one of his former criminal defendants with whom he was having an affair and receiving drugs).

There are important exceptions to the general rule that failure to report a crime (without an act of concealment) is not a crime. These have been enacted by the states in particular situations. A few states (like Texas), for example, penalize the failure to report an offense resulting in a serious injury or death. Also there are “mandatory reporters,” such as parents, teachers, doctors and ministers, who are required to report certain crimes. Vets are required in some states to report animal abuse, and photo processers must report child pornography photos or videos. Some states make it criminal for a nurse or nursing home staff not to report abuse of the elderly or disabled. Additionally, there are “mandatory reporting crimes,” the most common of which is the failure to report child abuse.

Because even these exceptions are rarely prosecuted, few courts have tested their limits. What if the witness has a recognized legal privilege not to reveal a confidence? What if reporting could have 5th Amendment implications?

What if a judge, prosecutor, or federal agent receives information of a crime in another jurisdiction by a cooperating witness? Is he or she bound to disclose the information to the appropriate authorities in view of 28 USC Sec. 1361’s compulsion for officers of the US to perform their legal duty?

As the Bystander Syndrome encounters the social media obsession in the 21st Century, the duty to report crimes to law enforcement will continue to be more of an ethical and moral issue, as well as an important public policy subject.

Rap songs and t-shirts with inscriptions like “Snitches Get Stitches” will continue to challenge law enforcement’s need for pubic cooperation in order for officers and agents to protect and serve. The use of statutes like misprision will accomplish little to satisfy this need.

 

Neil Gorsuch’s Participation In Supreme Court Could Make a Difference, Most Likely In favor of Protecting Officers

Judge Neil Gorsuch

Judge Neil Gorsuch

By Ross Parker
ticklethewire.com

The muddied area of the law in civil actions against police officers involved in a shooting is one where Justice Neil Gorsuch’s participation and vote could make a difference, most likely in favor of protecting the officers. The Supreme Court heard argument last week in County of Los Angeles v. Mendez, a Section 1983 action against the county and two LA Sheriff’s Deputies.

It is an old legal adage that bad facts make bad law. From a law enforcement perspective, the case presents that kind of context.

First the present atmosphere surrounding police shootings, particularly of minority members, particularly where a rule or policy violation is present,  is very unforgiving of split second decisions by police officers in the heat of situations reasonably perceived to be dangerous.  See The War on Cops by Heather Mac Donald. One publication has described the case as involving the question if the police can “troll you and then shoot you.”

Second the atmosphere was especially stacked where the victim was, after the fact, found to be an innocent who suffered serious injuries.

The deputies were seeking a parole violator in 2010 when they knocked and announced their identity at a house in Los Angeles and then entered and searched it. In violation of the 4th Amendment, they lacked either an arrest or search warrant. Finding no one, two of them were sent to check a dilapidated shack in the backyard behind the house. Without announcing their identity or purpose, they opened the door with guns drawn. Not knowing who they were, Mendez picked up a BB gun he used to kill rats but did not point it at the officers. The deputies opened fire with 15 shots wounding Mendez and his pregnant girlfriend. Mendez later had to have his leg amputated because of his injuries.

The “Provocation” Rule

At the conclusion of the federal bench trial, the judge sustained liability and awarded the plantiffs $4 million in damages. The 9th Circuit Court of Appeals upheld the judgment under the alternative theories that the officers had provoked the threatening situation and that their constitutional violation, under the circumstances, was the proximate cause of the excessive force causing the injuries.

The “provocation” rule is opposed by law enforcement because it ignores principles of qualified immunity and focuses on events prior to the reasonableness of the officers’ action at the time of the shooting. Such a rule would, they argue, encourage police to hesitate and thus result in increased danger to both them and the subjects. The legal analysis has been widely discredited by other appellate courts.

Plaintiffs argue that it is unfair to shield officers from liability for unreasonably dangerous situations which they created or contributed to by their own actions.

The wide gap in views on what legal principles and analysis should be employed by the parties and lower courts was reflected by the apparent attitudes by the 8 Justices during oral argument last week. Even the fundamentals of the law in this area are confusingly uncertain.

The case could very well end up in a 4-4 tie between the Justices who support a finding that an unconstitutional entry satisfied proximate cause for the injury (likely Kagan, Sotomayor, Breyer, and Ginsburg)  and those who could discern no proximate cause between any constitutional violation and the result (likely Roberts, Alito, Thomas and Kennedy). A tie would uphold the 9th Circuit’s affirmance of liability and damages. Of course predicting individual votes in a murky area of the law is a perilous course taken only by the most stalwart of columnists (who have nothing to lose).

Ominously the 13 Amicus Curiae briefs are split almost equally divided in their support of the two sides of the case.

Almost Justice Gorsuch’s disciplined and conservative approach could bring clarity in this area. Of course it is likely to be a clarity very unhelpful to the victims of police shootings.

Sally Yates Sends the Right Message to the Trump White House

Former Acting Attorney General Sally Yates

Former Acting Attorney General Sally Yates

By Allan Lengel
ticklethewire.com

Acting Attorney General Sally Yates wasn’t going to be around very long at the Justice Department considering she was a holdover from the Obama administration.

Nonetheless, she should be commended for standing up to President Donald Trump, who implemented an executive order that was poorly thought out and executed.

Hopefully she has set a tone and a message to the White House: Federal law enforcement will not compromise its principles when asked to do something that violates the law.

It’s not likely to be the last time the administration directs federal law enforcement officials to do something questionable.

The president on Tuesday, when announcing his Supreme Court nominee, talked about the importance of the Constitution and the rule of law. We should take him at his word that he places great importance on upholding the law, not bending or breaking it.

In the coming months and years, some law enforcement officials may be forced to make a choice between doing the right thing for the country or keeping their jobs and following a White House order.

Hopefully they’ll do the right thing.

They can always get another job.

They can’t always get another reputation.

 

The Frightening Opiate Tales From The Emergency Room

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By Ross Parker
ticklethewire.com

The mind numbing opiate epidemic is not news, but the number of overdose deaths keeps climbing, and DEA agents say that we are still on the uphill side of the worst drug crisis in U. S. history. Until the opiate epidemic invades you or your family or friends, it is easy to underestimate the intransigence of the scourge.

Emergency room physicians and nurses have to cope with the unending tide of hopeless and desperate patients who are wheeled into the ER every day.  These are stories from a typical urban hospital where all classes, ages and races end up unconscious on their front door step. The fact that the stories are so unexceptional illustrates the extent to which the drug has a death grip on the country.

One ER doc relates that at the beginning of his twelve-hour shift a young woman comes in close to death in an opiate overdose. The medical team uses their best efforts to revive her, and they are successful. The doctor and a nurse both advise her strongly that the next incident may not have a good outcome and that she needs to remain in the hospital for a full medical work-up by an internist as well as counseling and treatment. But she signs herself out of the hospital AMA (Against Medical Advice) before he or anyone else in the hospital can do anything to prevent her from leaving.

The ER doc’s shift proceeds with other patients. An hour before the shift ends, the same young woman is wheeled into the hospital with her second overdose. Again she is revived. Physicians are trained to make no moral judgments about their patients’ lifestyles, but frustration pervades the atmosphere of the facility. What’s the point?

At a different hospital an ER physician tells a story that is going around ERs about a practice of opiate addicts driving to the hospital parking lot, leaving the car in drive with their foot on the brake and taking their drug of choice. If they remain conscious during the “high,” they keep that foot on the brake until they can drive away to another destination. If they overdose and lapse into unconsciousness, their foot slips off the brake, and the car crashes into something stationary, another car, a wall or such. Hospital security then finds the overdosed driver and rushes him or her into the ER for emergency treatment.

How Much Is Too Much?

A third doctor relates a post-overdose conversation she had with a chronic user. The problem, the user explained, is that the most euphoric effect comes only when he is close to slipping into unconsciousness. So users, at least the ones who want to live, must gauge what amount will reach this point without unintentionally going too far. Could the doc give him a little advice on this problem?

Each drug, used legally or not, has a Therapeutic Toxic Ratio or Therapeutic Index, which is a comparison of the amount of drug that causes the effect sought to the amount that causes toxicity. There is a safety continuum between effectiveness and a lethal side effect. The user who was seeking advice was saying that the best high is one which occurs as close to the toxicity point as possible without going too close to a lethal overdose.

The problem with this over simplistic analysis is that there are so many factors and unknowns in the context of illegal drugs that predicting this point is impossible. Using recreational drugs doesn’t happen in the hospital laboratory. The unknown mixture of different drugs (e.g., heroin and fentanyl) prevents this assessment by a user. Also the strength and purity of the drug(s), user tolerance, and contaminants affect the reaction to the drug and change the safety continuum.

So, even if the doctor was inclined to have this discussion, it would have been impossible to do so.  Instead the answer was that any time the user took a drug he was spinning a deadly roulette wheel. The unknown factors were the ones which could kill him or her. Even the same dose of a single drug can be effective one time and kill the user another time. The practice is inherently and unpredictably dangerous.

These are stories of a public emergency sliding toward a cataclysm, one not being addressed by policymakers and politicians. Appreciating its grim tenacity is only the first step to finding an answer to the epidemic.

Supreme Court Strengthens Qualified Immunity for Law Enforcement Officers’ Use of Deadly Force

By Ross Parker
ticklethewire.com

It was a tough year for law enforcement officers. Line of duty deaths, especially intentional killings of police, were up dramatically. Several categories of violent crime, including homicides, rose significantly after two decades of steady decline in crime statistics. Recruitment of new officers is becoming difficult, and officers confronting deadly situations are justifiably wary about the public (and media) second-guessing life or death decisions that had to be made under pressure within seconds.

Heather MacDonald, in her recent book The War On Cops, blames these developments on an anti-law enforcement movement led by groups like Black Lives Matter, accentuated by media attention, and facilitated by the policies of the Obama Administration. Whether you buy all of her conclusions, she does make a persuasive case that the current atmosphere in some segments of the public about law enforcement has resulted in officers being less aggressive in discretionary policing and that is a factor in a new crime wave, especially in the nation’s cities.

Into this troubling and dangerous situation, a potential boost in law enforcement confidence came this month from an unlikely source, a per curiam opinion by the U.S. Supreme Court.

Per curiam (Latin: by the Court) decisions are judgments by appellate courts as a whole in which no particular judge or Justice is identified as the author. In the Supreme Court per curiam opinions are almost always unanimous and usually represent brief rulings on non-controversial subjects. They tend to be short. They seldom set an important precedent or alter the rule of law.

But there are exceptions. In 1972 the per curiam opinion by the Court in Furman v. Georgia turned capital punishment upside down when it struck down every death penalty law and practice in the country as arbitrary and capricious under the 8th Amendment. It took four years for the states to re-institute death penalty statutes and, in many ways, the case began to diminish the role of the supreme penalty which continues to this day.

Bush v. Gore

In Bush v. Gore (2000) the Court issued a per curiam opinion in one of the most controversial cases in the Court’s history. The Court upheld the razor-thin Florida vote which gave the presidency to George Bush by a single electoral vote over Al Gore. The 5-4 vote followed party lines with the Republican appointed Justices in the majority, but the ruling was brief and unauthored.  Harvard Professor Alan Dershowitz called it the “single most corrupt decision in Supreme Court history,” but others thought it was a profile in courage which preserved the republic.

new_mexico_state_police

Earlier this month the Court decided another per curiam opinion which has gotten much less attention but which could have profound implications, especially to law enforcement officers on the front line. White v. Pauly was an appeal from a civil ruling by a federal district court against New Mexico State Police Officer Ray White, who had shot and killed Samuel Pauley in a police confrontation outside of Santa Fe.

Witnesses had called 911 to report Pauley as a drunk driver. Two police officers went to his residence where he lived with his brother Daniel Pauly in a secluded area to talk with Pauly. They ordered him to open the door.  It was asserted in the complaint that the brothers had not heard the officers identify themselves. The Paulys got their firearms.

A few minutes after the initial confrontation, Officer White arrived at the scene outside of the Pauly residence. The Paulys yelled that they had guns and Daniel fired two shotgun blasts outside the back door. Samuel stuck his handgun outside a window in the front of the house and pointed it in the officers’ direction. All three of the officers took cover, White behind a stone wall. One of the initial two officers fired his gun at Pauly and missed. Officer White fired and killed Samuel Pauly.

In the civil suit the three officers asserted qualified immunity, But the plaintiffs responded that the defense was not available since court opinions in other circumstances had stated that a warning was required before the use of deadly force even under the threat of serious harm. Officer White could not reasonably assume that this warning had taken place before his arrival. The district court agreed and the 10th Circuit Court of Appeals affirmed the ruling and ordered the case to go to trial. Officer White appealed to the Supreme Court.

The Court unanimously vacated this decision without oral argument in a brief per curiam opinion. Officer White had violated no clearly established law requiring a police officer facing an occupant pointing a firearm at him to identify himself and shout a warning before firing his weapon.

The Court pointed out that qualified immunity for law enforcement officers is important to society as a whole. Pre-existing law must give them fair and clear notice of impermissible conduct in order to invalidate the assertion of qualified immunity. Officer White’s conduct under the circumstances, especially his late arrival after the other officers had engaged the subjects, did not violate clearly established law. He could reasonably conclude in an ongoing police action that proper procedures had already been followed.

The case has been criticized as giving police a “license to kill.” But Supreme Court Justices are aware of the issues of the day. They watch TV. Maybe they are sending a signal that the courts should not second-guess law enforcement officers who have to make split second decisions on the use of deadly force by weakening qualified immunity.

Or perhaps they are just tired of the judiciary being asked to make social policy on confrontations between police and potentially dangerous subjects in the context of law suits against police.

Or maybe, like most garden variety per curiam opinions, the case represents a narrow ruling on a unique set of facts with little or no policy-making implications.

Hunting for The Joker

By Greg Stejskal
ticklethewire.com

7759264414_5b546c36de_b

In the Spring of 1989, a drama fraught with irony began playing out in Austria. A Jewish American family, a mother and her two grown sons, were fighting extradition to the US. About 50 years before, Jewish families were desperately trying to leave Austria for safe havens like the U.S.

The subjects of the extradition were Linda Leary and sons, Paul and Richard Heilbrunn. They fled to Austria from Indiana in anticipation of an indictment that was returned by a Federal Grand Jury in November, 1987. The indictment ran 136 pages and contained 53 counts variously charging 34 people. Paul and Richard were specifically charged with running a massive marijuana smuggling and distribution operation, legally termed a “Continuing Criminal Enterprise” (CCE). According to the indictment the ring operated from 1975 to 1985. It distributed more than 150,000 lbs. and took in more than $50 million in cash. The figures were subsequently revised upward to 250,000 lbs. and $50 to $100 million. It would prove to be the biggest marijuana ring ever prosecuted by the US.

Paul Heilbrunn was characterized as the ring leader of the enterprise. Testimony later depicted him as both respected and feared. He was referred to as “Melech,” Hebrew for king. Although Paul was a high school dropout, he was by all accounts a brilliant businessman. Prior to the indictment, he was believed to be a successful commodities trader in Indianapolis and wrote a column on trading for the local newspaper. He was a bon vivant who favored three-piece suits, frequented the finest restaurants and drove a top of the line BMW. He on several occasions rented jets and flew his friends to such events as the Super Bowl and the NCAA basketball finals.

His older brother, Richard, on the other hand was described as a big Teddy bear. He lived on a farm and usually wore flannel shirts and jeans. Richard supervised operations while Paul was the CEO.

Their mother, Linda Leary, was twice married and divorced. She had kept the name of her second husband. Leary was prominent in the Indianapolis community. She was the head of the Indiana League of Women Voters and president of the local chapter of the National Council of Jewish Women.

Leary was also involved in her sons’ business ventures. An early venture was dubbed Heilbrunn and Friends, ostensibly it was a health food distribution business -a good front for marijuana distribution. The “friends” were high school buddies who had setup marijuana sales networks at colleges they attended. But soon the network was supplying customers outside the campuses in eleven Midwestern states. Most of the marijuana came by ship from Columbia, Jamaica and Thailand – an exotic global operation. It was then trucked to Indiana where it was stored in barns that were owned or rented by the Heilbrunn organization.

Paul Heilbrunn had structured the organization so that information stovepiped, that is, information moved up and down, but only flowed between members as was necessary. This limited what any member could divulge should they choose to cooperate with law enforcement.

Paul also had attorneys set up offshore corporations in the Bahamas and Panama to launder the proceeds from the marijuana operation. Linda Leary was designated as the head of several of these corporations. Much of the laundered money was transferred back into the US and used to fund loans often for Indiana businesses.

In the present the paradigm has changed – now with so many states legalizing marijuana, it’s almost like looking back on prohibition. The Heilbrunns and their cohorts weren’t protesting the illegality of marijuana. Rather like the bootleggers, they were taking advantage of a restricted market. They could set the price, had little competition and the profits were tax free.

The Beginning of the End of The Empire

The beginning of the end for the Heilbrunn empire occurred when in 1983 a cocaine dealer was arrested. The dealer had previously worked for the Heilbrunns, but had been let go for drug use. He offered to tell what he knew about the Heilbrunn operation as part of plea bargain. There is no honor among thieves and little to none among drug dealers.

After the arrest of the cocaine dealer, law enforcement meticulously put together a case against the Heilbrunn organization which culminated in the 1987 federal indictment. Most of the 34 people charged were known to the federal grand jury that returned the indictment with the notable exception of one indictee who was referred to as “John Doe, also known as the Joker” like Batman’s nemesis. There were also two female subordinates to the Joker – named as Jane Does, aka, “Tipper and Topper.” (This probably was a disappointment to comic book purists who were anticipating a female code name like Catwoman.)

While the Heilbrunns were fighting extradition, most of the indictees were prosecuted and convicted. Some cooperated and agreed to testify against others including the Heilbrunns. In one of the co-conspirator’s trial, there was testimony about the Joker. He was depicted as “Paul Heilbrunn’s trusted and valued peer,” whose Michigan based operation did business with Heilbrunn and his associates. But no one in the Heilbrunn organization other than Paul himself seemed to know Joker’s true identity.

One person in the Joker’s organization had been identified and prosecuted for having stored a 40,000 lb. load purchased by the Joker from Heilbrunn. That person was James Shedd who owned a barn in Ypsilanti Twp. just southeast of Ann Arbor where the load was stored. (Shedd had also previously been the manager of the Sidetrack Bar, a locally famous and historical place in Ypsilanti.) Shedd had refused a plea deal and would not identify the Joker. That stand may have been based more on compensation from the Joker than honor.

It became a personal challenge for me to identify the Joker. It was a matter of pride. The Joker was a huge marijuana dealer who had been operating in my territory with impunity.

There was an individual who had become disenchanted with the Joker’s enterprise and reportedly had a falling out. I decided to see what if anything I could learn from him that might identify the Joker.

Over the next several months, we periodically met for coffee. We talked about a lot of things: sports, politics and although nothing specific was discussed, drugs. Slowly I gained his trust. I explained to him I would never disclose his identity, and any information he provided would be reported in such a way as to not divulge his identity. At no time did he ask me about any payment for information nor did I offer him any compensation. We both understood if he were to provide information, it would be because it was the right thing to do.

We began to discuss some specific things regarding marijuana distribution in Michigan. In early 1989, I asked him if he could help me identify the Joker. His reply was, yes, he could help – he could tell me who the Joker was – he was James Hill.

I immediately began to investigate James Hill. I found that James F. Hill owned a house in an affluent part of Ann Arbor. He also owned a business in Ann Arbor, an ice cream shop on Main Street, “The Lovin’ Spoonful.” And he owned and lived on an 80-acre farm just west of Ann Arbor. Hill had a master’s degree from the University of Chicago. Hill had no criminal record except he had been arrested for a traffic violation in 1973. It was nothing serious, but there was an arrest photo.

I sent a copy of the photo to Indianapolis, and after seeing the photo several of cooperating witnesses identified James Hill as the person they knew as the Joker.

The FBI Ann Arbor Office

Indianapolis obtained an arrest warrant for Hill, aka, the Joker. Early the next morning we set up an arrest team at Hill’s farm. When he was observed leaving the farm, we arrested him and took him to the Ann Arbor FBI office. I explained to Hill that he had been identified as the Joker in a federal indictment from Indiana charging him with multiple drug trafficking violations, and he would be taken to Detroit to be arraigned. He would likely remain in custody until he was transported to Indianapolis. He didn’t really question anything and seemed to have expected to be arrested. He indicated he would be cooperative, but he didn’t want to be interviewed until he got to Indianapolis.

When the media learned of Hill/the Joker’s arrest at the arraignment, they wanted to know how he had been identified. Rather than say nothing and encourage speculation, I made a statement that one of the cooperating witnesses in Indiana had identified him which was partially true.

Hill was removed to Indiana and did cooperate. Tipper and Topper were identified as sisters, Jennifer and Patricia Hanlon of Ann Arbor. They later pleaded guilty and were each sentenced to six years.

In late 1989, the Heilbrunns lost their two-year fight against extradition and were returned to the US.

In  October 1990, Hill pleaded guilty and agreed to testify against the Heilbrunns. In his plea agreement, Hill admitted to having received several 1,200 to 2,000 lb. shipments of marijuana starting in 1976. Then between March and November 1985, Hill received marijuana shipments of 18,000 lbs., 20,000 lbs., 40,000 lbs. and a pair of 2,000 lb. loads from the Heilbrunn organization. Hill said he made his last payment to Heilbrunn in 1986. By then he had paid the Heilbrunn organization about $20 million for more than 100,000 lbs. marijuana.

James Hill was sentenced to 20 years. Because he had pleaded to having run a Continuing Criminal Enterprise all of his assets were subject to forfeiture. The US District Court Judge said that Hill would have received harsher punishment if not for his cooperation.

In January 1991, Linda Leary also pleaded guilty and agreed to testify against her sons. She was subsequently sentenced to nine years.

There was no trial of the Heilbrunns. Paul and Richard pleaded guilty in April, and in July 1991, they were sentenced. Richard got 13 years. Paul, the King, who had also pleaded to CCE, received 28 years. Thus, ended the Heilbrunn empire.

To my knowledge no one ever learned the identity of the source who identified the Joker.