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Tag: Courts and Judges

  • A Very British Case: Postmasters and Miscarriages of Justice

    British justice is a splendidly odd animal.  Its miscarriage is one of those wonders of institutional repetition.  When textbooks are written on the subject, one will feature prominently.  On April 23 this year, the convictions of 39 former sub-postmasters were quashed by the criminal division of the Court of Appeal.  They had been accused, and convicted, for theft and dishonesty after the UK Post Office installed the wonky wonder of the Horizon IT system.

    There were figures such as Seema Misra, convicted for stealing £74,000 in cash from the Post Office branch under her stewardship in West Byfleet in 2010.  At the time, the press delighted in calling her the “pregnant thief”.  Her husband was assaulted by locals.  Della Robinson, who ran the Dukinfield, Greater Manchester Post Office, could not account for £17,000 by 2012.  She was suspended, reported to the police and faced a community service sentence.

    The reason for their convictions lay in the accounting nightmare produced by the Horizon system.  It had ominous beginnings, growing up from a contract between the computer company ICL, the Post Office and the Benefits Agency, all part of what were termed private finance initiatives (PFI).  Developed by Japanese company Fujitsu, Horizon featured a swipe card system for paying pensions and benefits via the counters of Post Office branches.  The venture proved calamitous, ailed by chronic mismanagement, weaknesses in the technology and general human incompetence.  The cost of that endeavour to the British taxpayer: £700 million.

    Refusing to wipe the slate clean, the Post Office beefed up the Horizon project, using it to convert accounting done through paper format into an electronic system.  Over time, this made it the largest IT contract in Europe not connected with the military.   But the stench refused to go away.  “Serious doubts over the reliability of the software remained,” warned the Post Office board of directors in their minutes in September 1999.

    Glitches duly mounted.  Variations in revenue in some branches were noted.  Two months after Horizon began operating, the Post Office branch in Craig-y-Don in Wales showed up a “variance” totalling £6,000.  In time, these proliferated. In some cases, sub-postmasters, seeing these errors as not occasioned by computer error but their own, sought to cover revenue discrepancies with their own resources.  Their contracts did mention that shortfalls be covered in instances of “carelessness or error”.

    Between 2000 and 2014, the Post Office, with witch-hunting zeal, prosecuted a stunning 736 sub-postmasters, seeking convictions for false accounting and theft.  Many were financially ruined.  A number took to addiction, suffered ill-health and premature death.  The sheer number facing charges raised an obvious question: how could there have been so many copy-cat crimes perpetrated by supposedly upstanding workers? (The Post Office itself admitted to investing time identifying and recruiting appropriate candidates.)  The more troubling, and logical reason: the continuing, near manic refusal to acknowledge the gremlins in the Horizon system.

    The sub-postmasters fought back.  In December 2019, the Post Office agreed to settle with 555 claimants, accepting that it had previously erred in its “dealings with a number of postmasters”, agreeing to pay £58m in damages, with claimants receiving a £12 million share after legal fees.

    Battle that year was also waged in the High Court through several trials.  The Post Office, remarkably, attempted to tar the presiding judge Sir Peter Fraser in one case with the brush of bias, suggesting he step down.  The failed effort to recuse him had arisen because of a previous ruling that over 500 sub-postmasters had been wrongly held responsible for Horizon’s accounting bungles.   In another of Justice Fraser’s judgments handed down in December 2019, the Post Office was accused of showing “simple institutional obstinacy or refusal” in considering “any possible alternatives to their view of Horizon, which was maintained regardless of the weight of factual evidence to the contrary.”  Reality was ignored.  “It amounts to the 21st century equivalent of maintaining that the earth is flat.”

    The Criminal Cases Review Commission (CCRC) proceeded to refer 42 sub-postmaster cases to the Court of Appeal.  The judges were charged with considering whether the prosecutions had been an abuse of court process and whether the convictions were unsafe. The salient consideration was whether the Horizon accounting system, already damned by Fraser, was reliable or not.

    To the last, the Post Office, rather than conceding in full error, fought.  It did concede that 39 of the 42 former sub-postmasters “did not or could not have a fair trial.”  But in 35 of those 39 cases, it objected to the claim that the prosecutions were “an affront to the public conscience”.

    In the criminal division of the Court of Appeal, Lord Justice Holroyde and his fellow judges found the “failures of investigation and disclosure were in our judgment so egregious as to make the prosecution of any of the ‘Horizon cases’ an affront to the conscience of the court.”  The Post Office had effectively reversed the burden of proof by firstly assuming that the Horizon system was reliable and placing the onus upon the sub-postmasters to show why shortfalls had been registered.  “Denied any disclosure of material capable of undermining the prosecution case, defendants were inevitably unable to discharge that improper burden.”  Their prosecutions, convictions and sentences were pursued “on the basis that the Horizon data must be correct, and cash must therefore be missing, when in fact there could be no confidence as to that foundation.”

    The snarling ugliness of conduct by the Post Office was laid bare.  It refused to comply with its own obligations when prosecuting the sub-postmasters using Horizon data.  It doggedly insisted that the sub-postmasters “make good all losses and could lose their employment if they did not do so.”  This was all done despite the selection of those very same individuals as trustworthy occupants of their positions.  The Post Office also dismissed claims that the shortfalls had arisen because of “an error or bug in the system”.  Internal documentation dealing with the explanation by one sub-postmaster that a system error had occurred was contemptuously swatted as “jumping on the Horizon bandwagon”.

    Of the 42 original appellants, only three – Wendy Cousins, Stanley Fell and Neelam Hussain – failed to achieve their aim.  Their convictions were found to be safe, as “the reliability of Horizon data was not essential to the prosecution case”.  For the rest, a grotesque, wearing chapter of British injustice had been reversed.  An unquestioning faith and dogma, alloyed with some venality, had been repudiated.  Sadly, the Post Office executives, board members and those at Fujitsu, remain at large, ready for the next erring.

    This article was posted on Tuesday, May 4th, 2021 at 12:13am and is filed under Courts and Judges, Justice, UK Post Office Service, United Kingdom.

    This post was originally published on Radio Free.

  • Peoples Coalition Helps Elect New Orleans Progressive Prosecutor

    On December 5, 2020, New Orleans elected its first ever progressive District Attorney.  Jason Williams, who was a criminal defense lawyer for over 20 years before being elected, replaced former DA Leon Cannizzaro, described by New Orleans papers as a traditional tough on crime prosecutor.  An unprecedented coalition of grassroots justice organizations came together over a year before the election, as The Peoples DA Coalition, to help make it happen.

    The Peoples DA Coalition, made up of over 30 local justice organizations, worked for over a year to “create a District Attorney’s office that is ethical, equitable, compassionate, and accountable to all of its constituents so that we may end the era of mass incarceration in New Orleans.”

    Immediately upon taking office, New Orleans District Attorney Jason Williams showed why he is on the way to becoming a progressive prosecutor.  He established a vigorous civil rights unit to review questionable convictions, began to reduce the instances where the prosecution required cash bail, quit using Louisiana’s habitual offender law, mostly stopped prosecuting juveniles in adult court, dismissed hundreds of low level drug cases, and granted new trials to dozens of people convicted by non-unanimous juries. More changes are coming.

    How did such a progressive candidate get elected in Louisiana, a deep south state which has for years been locking up more of its citizens than any other?

    There were three keys to New Orleans electing its first progressive prosecutor.  Two were traditional.  The third was unprecedented.   First, the winner of the race, Jason Williams, was an excellent campaigner and a well-known and respected candidate.  But he faced challenges because he had run and lost before and he faces uncertainty because of outstanding federal criminal tax charges.  Second, it helped that the incumbent retired at the last minute.  But other incumbents have retired before and no reform prosecutor emerged.  Third was the remarkable emergence of a vigorous nonpartisan grass roots coalition of dozens of organizations and scores of activists who identified the important issues, educated the community, and activated people to vote for big time reform in the criminal legal system.

    The organization that led the New Orleans community nonpartisan efforts to elect a reform prosecutor is the Peoples DA Coalition.  It brought a surge of grass roots organizing and energy for major reform into the criminal legal system in New Orleans in their focus on this election.

    The idea started 14 months before the election.  A few criminal justice advocates wondered if it just might be possible to create a broad-based community coalition to educate and activate voters to make the fall 2020 election for New Orleans District Attorney a referendum on dramatic changes in the criminal legal system?  There had been some statewide progress on reform in the past few years, why not push for stronger reform locally?   They quickly decided that no one organization could quarterback such an effort so they brought together a wide range of other organizations to dream and plan and work for real change.

    The Peoples DA Coalition grew to include over 30 community organizations and hundreds of activists.  Their shared goal was to elect a District Attorney who was serious about changing the criminal legal system and to be responsive to the people of New Orleans.  The organizations involved included those led by formerly incarcerated residents, crime survivors, people who were wrongfully convicted, families with incarcerated loved ones, immigrant rights, and others focused on criminal justice reform in New Orleans.

    Together these thirty plus organizations recognized the opportunity to create a new vision for the New Orleans District Attorney’s Office.  They demanded “a reform Prosecutor who embraces fairer, safer, more effective approaches to criminal justice.”

    The coalition refused to back or oppose any specific candidate.  They were clear.  Their goal was to listen to and organize with grassroots organizations and to bring about serious change in the way the criminal legal system worked in New Orleans.  How?  By educating the city-wide community and activating people to turn out and vote for serious reform in the race for prosecutor. Their plan was that whoever was elected was accountable to the people.

    Former Criminal Court Judge Calvin Johnson was asked to lead the coalition.  Judge Johnson is a highly regarded justice leader who served as a law professor, former chief judge of the Orleans Parish Criminal District Court and after retiring from the bench, criminal justice coordinator for the City of New Orleans.

    Judge Johnson has been aware of the need for dramatic changes in the criminal legal system for over 50 years.  “In 1962, when I was just 14 years old, a young football player in my hometown of Plaquemine was accused and prosecuted for allegedly assaulting his white girlfriend. I remember sitting in the balcony of the courthouse and watching as this Black teenage boy was denied anything close to a fair trial. It was then that I realized how tragically flawed the system is. That moment sent me on my life’s journey toward advocating for a system that doesn’t punish people simply for being Black.”

    Why did Judge Johnson agree to lead this specific effort?  “As a former judge who has spent most of my adult life operating within the system, I can state unequivocally that the district attorney is the single most powerful person in the criminal justice system. If we are serious about fundamentally changing the trajectory of a system that over-polices, over-prosecutes and over-incarcerates, then we must elect a district attorney who is actually for reform.”

    The Peoples DA Coalition established itself as a tax-deductible non-profit, said Johnson, and from the beginning did not endorse any candidate.  It was able to raise some local and national funds from individuals and foundations to hire two staff.  They asked Louisiana native Victoria Coy to come on as coordinator.  Color of Change, a national racial justice advocacy organization, partnered to help on several levels including helping create the organization’s website, strategizing, and running the technology for online forums.

    The hardest and most important early work of the coalition was hammering out a shared policy agenda that people could get behind.  Creating a comprehensive policy platform which reflected the transformative vision of dozens of organizations was challenging. Over eight months of meetings, members organized themselves into twelve different working groups, each working on one criminal justice issue, developing detailed lists of concerns and demands for action.

    During these months, the Peoples DA Coalition continued to grow and broaden.  More organizations joined.  Ministers joined. Lots of young people.  Judge Johnson observed “It was exciting to see all these young committed smart people and be in the room working with them.”

    Ultimately the Peoples DA Coalition agreed on a twelve part policy platform which included over 70 specific demands for reform.  Every one of the candidates running to be elected DA would be asked for their positions on each.  The community insisted that going forward the DA of New Orleans operate their office in dramatically new ways.  For example, would the DA promise not to seek the death penalty? Would the DA dramatically reduce requests for cash bail and pretrial detention? Would the office use restorative justice processes where possible?  Would the DA listen to, inform and communicate with survivors of crimes?  Would the DA stop the school to prison pipeline by refusing to prosecute behavior which can be handled through the school system?  Would the DA create an internal wrongful conviction review process?  Would the DA train all prosecutors and staff on an ongoing basis about racial bias?  And dozens more.

    In the summer of 2020, five people were frequently mentioned as candidates.  The incumbent DA Leon Cannizzaro, Jason Williams, and three former Judges Arthur Hunter, Keva Landrum, and Morris Reed.

    As qualifying approached, the Peoples DA Coalition stayed nonpartisan.  Even though some members of the coalition preferred one or more of the candidates, the coalition itself focused on issues and refused to get behind one candidate.  The coalition had to do that, stressed Judge Johnson, because “regardless of who was elected, we wanted accountability. Whoever is elected, we will have accountability of the elected candidate to the people.”

    On the last day to qualify for the election, the sitting District Attorney Leon Cannizzaro announced he was not going to run for reelection.

    “We were surprised when the sitting DA dropped out, but we continued forward,” said Johnson.

    On August 18, 2020, the Peoples DA Coalition publicly announced their detailed 70 part platform. “It’s time for us to have a prosecutor, a DA who recognizes that the purpose of the justice system is to make people better,” said Judge Johnson at the online unveiling of the platform. “To make our city better. To make the justice system better. That’s the prosecutor’s role. That’s the prosecutor’s job. And the People’s DA Coalition is going to hold the prosecutor to it.”

    In September, the coalition held an online forum for the candidates to respond to the policy platform.  Victoria Coy said 900 people attended.  The candidates all pledged to “actively root out wrongful convictions, stop bringing criminal charges against sex workers, ditch the use of habitual offender laws and reserve jail before trial for the most serious offenses.”

    The focus on reform of the system was not always viewed kindly.  Rafael Goyeneche, a former prosecutor and the president of the Metropolitan Crime Coalition, a conservative tough on crime watchdog, when interviewed by Matt Sledge of Nola.com, “expressed some skepticism of all the “reform” talk. “‘Reform’ doesn’t necessarily mean better,” Goyeneche said. “The candidates need to realize that they’re no longer going to be criminal defense attorneys, their obligations are not going to be to the defendants but to the public, to the victims and citizens.”

    In the weeks running up to the election, the coalition targeted precincts for education and outreach.  Members knocked on doors, made thousands of calls and texted to get the word out about the importance of the election and the important issues in the DA race.

    Political observers expected the reform vote to be split between Jason Williams and Judge Arthur Hunter, a retired progressive criminal court judge.  The more traditional vote appeared to be going to retired Judge Keva Landrum who landed far more endorsements than any other candidate.  Judge Morris Reed remained on the ballot but did not really campaign and was not expected to contend.

    The election on November 3 ended up with former Judge Keva Landrum winning 35 percent of the vote and Jason Williams edging out Judge Hunter 29 to 28 percent.

    Local media characterized the runoff as “a choice between a defense attorney who rarely fails to denounce what he sees as a racist criminal justice system and who also serves as at-large city councilman, and the more measured reforms touted by an experienced former prosecutor and judge.”

    Landrum was seen by many as “the more moderate candidate” while Williams “cast himself as a progressive who has been fighting for a more just and humane criminal legal system for his entire career.”

    In other media reports both candidates “talked about advancing reforms, but their positions and records reveal a divide in how they would likely approach being a DA.  Williams has promised more of a clean break with the office’s punitive past and embraced the People’s DA platform enthusiastically.”

    Members of the coalition continued to work hard to educate people about the candidates and work for voter participation.  Pastor Gregory Manning, a member of the Peoples DA Coalition, strongly urged people to vote. ““We are at a crossroads in our community,” said Manning, a pastor in the Broadmoor neighborhood. “It cannot be simply that we continue to lock people up and allow the criminal justice system and the jail system and the bail bondsman to benefit financially off of the incarceration of our people, especially African American people, people of color.”

    Ultimately, members of the Peoples DA Coalition made over 90,000 calls, knocked on hundreds of doors and sent thousands of texts to potential voters, according to Coy.

    On December 5, 2020, Jason Williams won the race by a convincing margin, 58% to 42%.  

    The fact that Williams, the most progressive candidate, won came as a surprise to many.  His fundraising trailed his opponent by over $150,000.  He had many fewer endorsements from city power brokers.  New Orleans had never elected a progressive prosecutor.

    Since taking office, as noted above, District Attorney Williams has taken action.  He has not opposed requests for new trials for those convicted in New Orleans by 10-2 jury verdicts.  He has dismissed hundreds of minor drug and outdated cases.  He has created a new Civil Rights Unit to investigate cold cases and reverse wrongful convictions.  He has reversed the policy of the office and is not seeking life in prison for juveniles convicted of murder.

    Despite the overwhelming mandate from the voters, traditionally conservative tough on crime critics like Rafael Goyeneche, who were not fans of reform plans before the election, are really worried now.  “This is a grand experiment and only time will tell how this experiment plays out,” Goyeneche said. “I think that you are taking real risks with the public and public safety.”

    The Peoples DA Coalition goal remains the same. “Our mission is to create a District Attorney’s office that is ethical, equitable, compassionate, and accountable to all of its constituents so that we may end the era of mass incarceration in New Orleans.” The focus should be on safety, not on jail and prison.

    But even though the election is over, organizing for real and lasting change is not. The Peoples DA Coalition and Color of Change are following through on their promise to hold the winner of the race accountable.

    On Thursday April 8, Color of Change and the Peoples DA Coalition have scheduled their first forum with District Attorney Jason Williams.  They intend to discuss bail, pretrial detention, transparency, accountability and juvenile justice, just like they promised.  Readers can register to join that discussion online.

    While it is impossible to say exactly how much impact the Peoples DA Coalition had on the race, Judge Calvin Johnson summed it up.  “I will be 74 shortly.  To see where we are in terms of how this community thinks about justice and people?  That was amazing.”

    This article was posted on Wednesday, March 31st, 2021 at 3:43am and is filed under Activism, Courts and Judges, Legal/Constitutional, New Orleans, Prisoner Rights/Protections.

    This post was originally published on Radio Free.

  • The Neo-fascist Legacy of Donald Trump

    After the US Capitol was attacked by his supporters, Donald Trump has become the first president of America to be impeached twice. Regardless of how he leaves the White House – the Senate won’t act on the impeachment before Joe Biden’s inauguration on January 20, 2021 – the neo-fascist seeds he has sown won’t stop germinating.

    Even after the brazen attempt to overturn election results, there is ambiguity among Americans on Trump’s impeachment – 38% oppose his impeachment and 15% have no opinion. These percentages are in line with the support enjoyed by him for false claims regarding rigged elections.  Polls carried out December 2020 showed that almost 40% of Americans, including 72% of Republicans believed that the November election was rigged against Trump. The acceptance of these allegations came in the backdrop of overtly anti-democratic efforts to overturn the results of a contested election.

    Trump put 234 federal judges into office, hand-picked according to ideological leanings. He appointed three Supreme Court justices, with his party taking unparalleled measures to push them through against popular mandate and in violation of certain procedures.

    Republican Realignments

    After the spectacle at the Capitol, the Republican Party has split into True Trumpists and Back-to-Businessers. Mike Pence, Tom Cotton, Chuck Grassley, Mike Lee, Ben Sasse, Jim Lankford and even Kelly Loeffler have sided against Trump. According to Mike Davis, this split reflects “a realignment of power within the Party with more traditional capitalist interest groups like NAM [National Association of Manufactures] and the Business Roundtable as well as with the Koch family, long uncomfortable with Trump. There should be no illusion that ‘moderate Republicans’ have suddenly been raised from the grave; the emerging project will preserve the core alliance between Christian evangelicals and economic conservatives and presumably defend most of the Trump-era legislation.”

    For Post-Trump Republicans, the lucrative potentials of Trumpism have been exhausted: they’ve already extracted their justices, their tax cuts, and their anti-immigration credentials. Now, they have got the perfect excuse to step off from the Trumpist bandwagon. True Trumpists, led by Josh Hawley and Ted Cruz, find themselves in another political space – captains of a de facto third party that is mostly concentrated in the House of Representatives and state legislatures. Already, Trump lackeys are trying to redirect the frenzy of the fascist mob into a crusade against Big Tech which – to their chagrin – has banned Trump from almost all platforms. For instance, Rep. Jim Jordan defended Trump with the farcical claim that impeaching him was simply an expression of “cancel culture” and a further attempt to silence conservatives.

    The Spread of Neo-fascism

    As is evident from the Republican split, an alt-right political faction will ensure that Trumpism does not wither away. At this point, it is necessary to ask how neo-fascism percolated through the pores of American society. The Centre for Strategic and International Studies reported that far-Right and White supremacist terrorist attacks in the US increased dramatically in 2017 (one year after Trump’s Election win) to 53 attacks and another 44 in 2019 – an evidence of the cultural rootedness of neo-fascism.

    In the Terror of the Unforeseen, Henry Giroux neatly lists all the elements comprising Trumpism: “the cult of the leader, the discourse of the savior, white nationalism, a narrative of decline, unchecked casino capitalism, systemic racism, silence in the face of a growing police state, the encouragement of state endorsed violence, the hallowing out of democracy by corporate power, a grotesque celebration of greed, a massive growth in the inequality of wealth, power and resources, a brutal politics of disposability, an expanding culture of cruelty, and a disdain for public virtues”. From this compendium, we can observe that it was neoliberalism combined with violent xenophobia and anti-intellectualism which created a fertile ground for Trump’s political hegemony.

    In the age of Trump, Giroux sees the emergence of neo-fascism in “an unceasing stream of racism, demonizing insults, lies, and militarized rhetoric, serving as emotional appeals that are endlessly circulated and reproduced at the highest levels of government and the media.”  “The United States has a long history of racist language leading to cruel and harmful practices and, in some cases, violence aimed at groups targeted by such language.” Giroux says that “the language of white nationalism and racial resentment” creates “a discourse that annihilates social codes and restrains political behavior and undermines the rule of law.”

    Trump’s public pedagogy does not operate just through his tweets or statements but also through his performative silences. This was clear in the case of the 2017 Charlottesville rally where White supremacists gathered in opposition to the removal of a US Civil War statue. During the rally, a White supremacist killed the anti-fascist activist Heather Heyer. This act was heavily condemned across a broad political spectrum within the US. However, the Charlottesville rally and the killing of Heyer were initially met with silence from Trump, who otherwise is quick to tweet his opinions on similar situations. When he broke the silence with a press conference, he said that “there are two sides to a story” and asked “what about the alt left?” Even though he later condemned the racist elements in the Charlottesville rally, the initial silence and the narrative of “both sides” had already impacted the public discourse.

    Ultimately, Trump’s entire political project rests on irrationality. Only in this way can he simultaneously further the capitalist class’ agenda. “The bourgeoisie,” Henry Lefebvre says in Mystified Consciousness, “doesn’t need ideas too refined and metaphysical. Carefully instigated banalities are usually more useful than metaphysics. It needs only to utilize old everyday sentiments, sentiments whose fragrance is ‘all natural’ and ‘simply itself’: faith, hearth, race, heroism, purity, duty – banalities inscribed in all our hearts.” These emotionally powerful banalities serve to craft a false sense of collective identity in a neoliberal environment of hyper-individualization. As Hannah Arendt writes in Origins of Totalitarianism, “men in the midst of social disintegration and atomization will do anything to belong”.

    A Socialist Response

    Neo-fascism in USA can be eliminated only through socialism. As long as neoliberal capitalism reigns supreme, potentialities for a project like Trumpism will continue to abound. Therefore, a socialist response needs to be carefully constructed. Socialist political praxis needs to emphasize protecting the population in the immediate present while working toward the long-run revolutionary reconstitution of society at large. Such a multi-temporal dynamic will allow the Left to ideologically defeat the Right on the terrain of hegemony.

    This article was posted on Thursday, January 21st, 2021 at 6:31pm and is filed under Capitalism, Courts and Judges, Donald Trump, Elections, Fascism, Fearmongering, Nationalism, Neoliberalism, Republicans, The “Left”, The “Right”.

    This post was originally published on Radio Free.