Category: Police Practices

Prof. Gershman on “Parking While Black”

In his most recent Huffington Post piece titled Parking While BlackProf. Bennett L. Gershman reviews a recent Circuit Court decision, United States v. Johnson, which is currently pending re-hearing at the 7th Circuit after it initially upheld the lower court’s decision. Prof. Gershman raises a fair question: “[Are the courts] about to decide if police have another legal method for harassing black citizens[?]”

In the middle of a Wisconsin winter with streets covered in snow, local Milwaukee police decided to harass a parked car with four black passengers inside after one just returned from a liquor store, citing Milwaukee parking ordinance (alleging the car was parked too close to a crosswalk), pulling all passengers out of the car, handcuffing them, searching the entire car and finding a gun as a result.

While the court’s majority sided with the government and held that the police did not violate the defendant’s Fourth Amendment rights and reasoned that police had probable cause (based on the parking ordinance) and as such “could forcibly detain the car and search the occupants,” Judge David Hamilton delivered a worth-to-read dissent, calling the police conduct “terrifying,” “outrageous,” and “extraordinary.” As Prof. Gershman points out, Judge Hamilton carried on by saying:

Imagine that the police tried that approach in Milwaukee’s affluent east side. Citizens would be up in arms, and rightly so.” … “No police officer could expect to keep his job if he treated a standing car as worthy of a [forcible] stop.”

Prof. Gershman concludes that:

The panel decision was vacated last month, and reargument has been ordered. It remains to be seen whether the entire circuit court will see it as Hamilton did or whether “parking while black” will sadly become as common a phrase as “driving while black.”

Student Perspective: Making A Murderer Event

POST WRITTEN BY: Danielle Petretta (’17), J.D. Pace Law School

On March 2, 2016, Pace Law School’s Criminal Justice Society, Student Bar Association, and the Criminal Justice Institute held an event on the controversial and popular Netflix 10-episode documentary, “Making a Murderer.” The documentary centers on a man named Steven Avery, who found himself stuck deep in the trenches of our criminal justice legal system within a very small knit rural community in Wisconsin.

Steven Avery spent 18 years in prison for a crime he did not commit and in 2003 was finally exonerated. This case received much attention including an effort to pass a bill – the Avery Bill – implementing checks and balances regarding police interrogations, handling and testing of DNA evidence, and policies surrounding an eye witness identification procedures to prevent wrongful convictions.  However, his nightmares continued, as just two years later he was arrested for the murder of 25-year-old photographer Teresa Halbach. Steven Avery’s nephew, Brenden Dassey, was also arrested for partaking in the Halbach murder. Both Steven Avery and Brenden Dassey remain in prison to date and Steven Avery continues to claim his innocence this time around as well. It is yet to be determined what the status of their appeal is, and the documentary leaves gaping concerns and questions to be answered. The documentary maps Steven Avery’s unfortunate journey through the legal system to date and takes the viewer on a shocking ride.

Did the fact that the Avery’s lived in Manitowoc County, a small knit community, affect the way in which they were treated? Did the appearances and social status of the Avery and Dassey families play an influential role in their prosecutions? Why was the police department involved in the first case able to have a continued presence and involvement in the subsequent Halbach case? Was the evidence tampered with? Were proper police procedures followed? Did someone tipped off the woman who found Teresa Halback’s car in the Avery’s 4,000 car lot within just a few minutes? Why was the same judge deciding Avery’s motion for a new trial when he had been the presiding judge in his trial? What happened in the jury room? Why was the key, one main piece of evidence against Avery, found days after the seventh search?

The discussion panel held at this fabulous event consisted of professors, former prosecutors, and the Greenburg Chief of Police. Professors of professional responsibility, criminal procedure and criminal practice  provided valuable feedback responding to many of the questions continuously discussed. After the initial introduction of the topic by the panelists, the room flooded with questions and comments about the documentary, what it portrayed as well as what it didn’t establish. Discussions and comments about the police work sparked much attention among the crowd of students and current attorneys, and critiques and opinion regarding the prosecution and defense lawyers’ conduct triggered a heated response from the audience.

This discussion panel coupled with the audience forum offered an amazing opportunity for students, attorneys, professors, and community members to debate and challenge the current criminal justice legal system that is so embedded within our society.

Related Readings:

What’s Wrong with America’s Criminal Justice System in 40+ Tweets

rantNorth Carolina criminal law attorney T. Greg Doucette’s twitter rant went viral. Although only tweeting, he does an excellent job in capturing what’s wrong with the American criminal justice system, particularly when race is involved.

Related Readings:

Yet Another Death in Police Custody

In case you didn’t have a chance to read this when it first came out, we bring to you another post by Professor Bennett L. Gershman, titled On the Death of Raynette Turner.

Prof. Gershman introduces his piece by saying,

The fifth death of a woman of color in US police custody in July. An unspeakable tragedy by itself, but arguably symbolic of the legal profession’s failure to examine the factual and logical foundation for our system of modern policing and mass incarceration.

NY Court of Appeals Ducks a Decision on a Troubling Mens Rea Issue

POST WRITTEN BY: Professors Peter Widulski and Bennett L. Gershman

In April 2011, a man exited a subway train at a station in Manhattan and encountered a police sergeant and two other police officers. The officers reported that the man shouted obscenities and gesticulated at them and accused them of blocking his access to a stairway to an upper platform. They further reported that the man continued to swear at them as the sergeant followed him up the stairs. The sergeant reported that his intention in following the man – subsequently identified as Richard Gonzalez – was to issue Gonzalez a summons for disorderly conduct. While following Gonzalez, the sergeant noticed the handle of what appeared to him to be a knife in Gonzalez’s back pocket. After detaining Gonzalez on suspicion of disorderly conduct, the sergeant seized the item in Gonzalez’s back pocket and determined that it was a “gravity knife” because the blade in the handle snapped and locked into place upon flicking the wrist holding the handle. Under New York’s Penal Law it is a crime to possess a “gravity knife.”

The Manhattan District Attorney’s Office indicted Mr. Gonzalez for criminal possession of a weapon in the third degree, pursuant to Penal Law § 265.02 (1), which, in conjunction with Penal Law § 265.01 (1), subjects a defendant to third degree criminal possession of a gravity knife, a felony, if the defendant was previously convicted of a crime. Prior to trial, the defendant moved to suppress evidence of his possession of the knife on the ground that his detention for disorderly conduct was unlawful, and therefore the seizure of the knife was the fruit of the unlawful arrest. The defendant’s motion was denied, and a jury subsequently convicted him of third degree criminal possession of a weapon. He was sentenced to 3 ½ to 7 years in state prison.

On appeal, a five-judge panel of the Appellate Division, First Department, unanimously held that the facts supported probable cause to arrest the defendant for disorderly conduct. People v. Gonzalez, 112 A.D.3d 440 (1st Dep’t 2013). The court further unanimously held that the only mens rea element the prosecution had to prove regarding possession of a gravity knife was that the defendant knew he possessed a knife “in general,” rejecting defendant’s argument that the prosecution needed to prove that he knew the knife he possessed had the characteristics of a gravity knife.

Leave to appeal to the Court of Appeals was granted, and on April 28, 2015, the Court of Appeals heard oral arguments in the Gonzalez case at the Judicial Institute on the campus of Pace Law School. Although the parties argued both the probable cause issue and the mens rea issue, it appeared to us that the Court’s questions focused primarily on the issue of whether the prosecution needed to prove that the defendant knew that he possessed a knife with the characteristics of the prohibited “gravity knife.” And to observers, it appeared that the Court was clearly troubled by this issue. Gonzalez’s appellate counsel informed the Court of the undisputed facts that Gonzalez had purchased the knife – a “Husky” brand utility knife which he used in his long-time work as an independent contractor – at a Home Depot store some five years earlier. Counsel argued forcefully, and several of the judges appeared to accept the argument – that fairness required the prosecution to prove that Gonzalez knew that the knife he lawfully purchased for his work had the characteristics of a gravity knife. Indeed, in watching the back and forth, we were reminded of the famous Supreme Court decision, Morissette v. United States, 342 U.S. 246 (1952), taught in every first-year law school class, in which Justice Robert Jackson wrote: “A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.”

In the face of the persistent and probing questions put to her by several of the judges, the prosecutor argued that the Legislature intended only that a person know simply that he possessed a knife, not whether the knife had the characteristics of a prohibited weapon. When Judge Eugene Pigott pressed her with hypothetical situations in which someone might possess quite innocently a lawfully purchased gravity knife, counsel stated that prosecutorial discretion might be used to avoid unfair prosecutions. Judge Pigott responded by noting that such discretion could lead to discriminatory results, based perhaps on a prosecutor’s consideration of the defendant’s race, or other improper considerations.

In a decision issued on June 15, 2015, the New York Court of Appeals unanimously reversed. But the Court reversed the Appellate Division not on the weapon possession issue but on the ground that “there is no record support for the motion court’s determination that defendant’s rant against the police officers constituted the crime of disorderly conduct.” Thus, the Court was able to avoid addressing the troubling issue regarding whether there is any mental culpability requirement for possession of a weapon, besides the requirement that the person know he possesses an object, which turns out to be a prohibited item.

Why courts avoid decisions on some issues really goes to the heart of the judicial process. Courts typically do not reach out to decide difficult-to-resolve questions if they do not have to. This is especially true when a court confronts issues relating to the legitimacy of a statute, or an interpretation of a statute that may break new ground. Clearly, the weapons issue in Gonzalez was a broader and much more difficult question than the detention issue, a purely legal question. The Court ducked the weapons issue knowingly, and probably with the knowledge that it would confront a similar issue again, and on a record making a resolution more likely.