TIME justice

Study: Judicial Vacancies Are Jamming Up the System

Group pushes Senate to act to further weaken minority power to block judges

Talmadge Nix, a lawyer with the firm Nix and Poet in eastern Texas, represents a Chinese national who has been sitting in jail for months. Arrested as part of a prostitution conspiracy ring, the woman has a green card and she doesn’t want to plead guilty for fear of how it might affect her immigration status. Her co-defendants who are pleading guilty will be released from prison by the time this woman’s case goes to trial.

“There’s this hammer over her head: plead guilty and you’ll be out of jail,” says Alicia Bannon, author of a Brennan Center for Justice analysis entitled “The Impact of Judicial Vacancies on Federal Trial Courts” out on Monday. The woman’s plight is just one example of a judicial system groaning from a backlog of cases due to the high number of vacancies in federal courts.

Judicial vacancies are a particularly salient issue for eastern Texas, with judges there routinely having to travel more than 350 miles to hear cases, the study found. There are currently 49 U.S. District Court vacancies, compared with 29 such vacancies at an equivalent point in President George W. Bush’s second term.

“In trial courts around the country, vacancies are hurting our courts and individuals that rely on them to protect their rights,” Brennan says. “Delays are common. It’s harder to schedule trials. There are longer wait times to schedule motions. All this adds costs and uncertainty for litigants appearing before the courts. Cases aren’t neglected but they’re certainly being effected.”

Senate Majority Leader Harry Reid last year moved to strip the minority of the ability to filibuster some executive nominations, a move known as the “nuclear option” for the partisan toxicity it invoked in the Senate. That change has helped ease the flow of some confirmations—President Obama has overall confirmed more judges by sheer number to the federal courts than Bush by this point in their presidencies. But Bannon and the Brennan Center are pushing for even more reforms.

As it stands right now, appellate court nominations require 30 hours of debate before confirmation, and lower court judges require two hours. Usually, Democrats yield back their half of that time, but Republicans have often used their time to speak on other issues or the Senate floor stands idle as the clock runs out. Bannon says there should be a “use it or lose it” standard wherein unless senators actually use the time to address the judge under consideration, the rest of the time is yielded back. Such a move would quicken the pace of confirmations, but it also risks further angering the minority. Republicans were so furious at the nuclear option that work in the Senate in the last eight months has come to a virtual standstill, with even the most bipartisan of bills falling victim to partisan sniping.

Bannon would also like to see the so-called “blue slip process” halted or made more transparent. Though it’s not in the official Congressional rulebook, whenever a judicial nomination is pending before the Judiciary Committee, blue slips seeking comment are sent to the offices of the senators where the judge resides. If both slips are not returned, then the nomination does not proceed to a committee vote. Because Republicans have been refusing to return blue slips in a post-nuclear world, judicial vacancies are becoming clustered in Republican states. More than half of vacancies do not have nominees—all in red states where senators have stopped making recommendations to the president. Traditionally, a nomination begins with a senatorial recommendation. Of the total 60 federal vacancies, there are only 27 nominees pending.

Texas, which has two Republican senators, John Cornyn and Ted Cruz, has the most vacancies with 10 empty slots, one of which has been vacant for more than 2,000 days. Six of the 10 seats are “judicial emergencies,” meaning judges now handle more than 600 cases to make up the difference. There is a backlog of more than 12,000 cases in Texas, according to an April report by the Center for American Progress.

All the more reason, Bannon argues, that the practice of blue slipping should end, even though Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, says he opposes any weakening of that particular tradition. “At the very least, senators should be require to explain publicly why they’re holding back returning a blue slip and holding back to make recommendations for new nominations,” Bannon says. “The process should be more transparent.”

Obama, a former constitutional law professor, has made it one of his legacies to fill the federal bench. As the Senate looks increasingly like it might flip, which would all but deprive the President of future confirmations, the odds grow that Democrats push through these two procedural changes and smooth a glide path for a flurry of nominations before the party gives up control of the Upper Chamber.

TIME Crime

NYPD Officer Loses Badge After Man Dies During Arrest

Rev. Herbert Daughtry and Rev. Al Sharpton hold Esaw Garner, wife of Eric Garner, during a rally at the National Action Network headquarters for Eric Garner, July 19, 2014, in New York City.
Rev. Herbert Daughtry and Rev. Al Sharpton hold Esaw Garner, wife of Eric Garner, during a rally at the National Action Network headquarters for Eric Garner, July 19, 2014, in New York City. John Minchillo—AP

Daniel Pantaleo has been assigned to desk duty while authorities investigate the death of Eric Garner

A New York City Police Department officer had his gun and badge removed after a man died in custody when the officer put what looked like a chokehold on him, police said Saturday.

Officer Daniel Pantaleo, who has worked for the NYPD for eight years, has been reassigned to desk duty following the Staten Island death of 43-year-old Eric Garner, the Associated Press reports. Another unnamed officer involved in the arrest has also been reassigned but will keep his badge and gun.

Video footage obtained by the New York Daily News shows an officer putting Garner in an apparent chokehold, a move that is prohibited by the police department and can be fatal, after he refused to be handcuffed. Garner can be heard saying “I can’t breathe” as officers bring him to the ground while trying to arrest him for allegedly selling untaxed cigarettes on the street.

Police union President Patrick Lynch called the reassignment a “completely unwarranted, knee-jerk reaction” that “effectively pre-judges the case” in a statement.

Federal court records show that Pantaleo has been sued by three men in the past two years for racially-biased arrests on Staten Island. Pantaleo could not be reached for comment by the AP.

Though officials believe Garner died of a heart attack, a medical examiner’s office spokesperson said the exact cause of Garner’s death has yet to be determined.

New York City Mayor Bill De Blasio called the circumstances of Garner’s death “very troubling.”

[AP]

TIME justice

Reduced Drug Sentences Could Affect 46,000 Prisoners

Those already behind bars could have their sentences reduced by more than two years

The U.S. Sentencing Commission on Friday unanimously voted to retroactively reduce prison sentences for drug offenders who are currently serving their terms. The move follows a decision in April to reduce future sentences by about two years, but will soon apply to those already behind bars so long as Congress does not overrule the vote.

Around 46,000 inmates sentenced before Nov. 1,2014 and locked up for nonviolent drug offenses could be eligible for reduced sentences, with releases beginning Nov. 1, 2015. The commission estimates that under the new rules the average prisoner could have his or her sentenced reduced by about 25 months, though they’d likely still serve about 108 months, or nine years.

The move “reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety,” Judge Patti B. Saris, chair of the Commission in a statement.

The new guidelines have been widely praised by advocacy groups, and the Commission says that the majority of the 60,000 letters it received on the matter during the public comment period were positive.

The Department of Justice had formally supported a more limited version of the guidelines, which would only apply if offenders were not guilty of violent crimes, did not have significant criminal histories and if their cases did not involve the use of weapons back in June. However, on Friday, Attorney General Eric Holder said in a statement that he looks forward to working with the commission on implementing the new guidelines. “This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden on our overcrowded prison system,” Holder said.

Families Against Mandatory Minimums, a D.C.-based organization that advocates for the elimination of mandatory minimum sentences praised the Commission’s decision on Friday, exclaiming triumphantly, “We did it!”

TIME justice

New York Man Dies After Police Try to Arrest Him

Rev. Herbert Daughtry and Rev. Al Sharpton hold Esaw Garner, wife of Eric Garner, during a rally at the National Action Network headquarters for Eric Garner, July 19, 2014, in New York City.
Rev. Herbert Daughtry and Rev. Al Sharpton hold Esaw Garner, wife of Eric Garner, during a rally at the National Action Network headquarters for Eric Garner, July 19, 2014, in New York City. John Minchillo—AP

The fatal incident, which police commissioner Bill Bratton called a "tragedy," was caught in a terrifying video and is currently under investigation

A New York City man died Thursday after a police officer appeared to put him in a chokehold in an incident that was captured on video.

Eric Garner, 43, died of an apparent heart attack after police in Staten Island attempted to arrest him on suspicion of selling untaxed cigarettes, a spokesperson for the New York City Police Department told TIME.

In the graphic video, obtained by the New York Daily News, Garner can be heard complaining that he can’t breathe and at one point appears to fall unconscious as police attempt to tackle him. The officer who appears to put a chokehold around Garner also appears to push his head into the ground.

Two officers, with eight and four years of experience in the Department respectively, have been placed on desk duty, Police Commissioner Bill Bratton said at a Friday news conference. He said the police officer in the video did appear to use a chokehold, which he said is “prohibited by the department.” Prosecutors and the department’s internal affairs have opened probes into the incident.

Bratton, who was hired this year by Mayor Bill de Blasio with a goal in part of improving police-community relations, called Garner’s death a “tragedy for all involved.”

“On behalf of all New Yorkers, I extend my deepest condolences to the family of Mr. Garner, who died yesterday afternoon while being placed in police custody,” de Blasio said in a statement. “We are harnessing all resources available to the City to ensure a full and thorough investigation of the circumstances of this tragic incident.”

In the video, a frustrated Garner denies having done anything wrong. “Every time you see me, you want to mess with me,” says Garner, who has been arrested 31 times for charges including drug possession and selling untaxed cigarettes, according to the Associated Press. “I’m tired of it. It stops today…. I’m minding my business please just leave me alone.”

TIME justice

FedEx Indicted for Role in Distributing Prescription Drugs

Prosecutors claim the federal government warned FedEx about drug distribution at least six times

+ READ ARTICLE

A federal grand jury indicted shipping company FedEx Thursday on charges of shipping prescription drugs for illegal online pharmacies.

Prosecutors say that Congress, the Drug Enforcement Administration and other federal agencies warned FedEx for nearly a decade that their shipping services were being used to illegally distribute drugs like oxycodone and hydrocodone. However, prosecutors say, the largest cargo company in the world ignored the notices.

FedEx allegedly “departed from its usual business practices” to allow the drug trade to continue. FexEx, according to the indictment, was aware of two major illegal online pharmacies—the Chhabra-Smoley organization and Superior Drugs. Top managers at FedEx allegedly approved these practices.

“The advent of Internet pharmacies allowed the cheap and easy distribution of massive amounts of illegal prescription drugs to every corner of the United States, while allowing perpetrators to conceal their identities through the anonymity the Internet provides,” said U.S. Attorney Melinda Haag in a statement Thursday. “This indictment highlights the importance of holding corporations that knowingly enable illegal activity responsible for their role in aiding criminal behavior.”

FedEx said they would fight the charges.

“FedEx is innocent of the charges brought today by the Department of Justice,” said Patrick Fitzgerald, FedEx’s senior vice president of marketing and communications, in a statement. “We will plead not guilty. We will defend against this attack on the integrity and good name of FedEx and its employees.”

TIME justice

Dutch Supreme Court Blocks Extradition of Al-Qaeda Suspect to U.S.

NETHERLANDS-PAKISTAN-USA-JUSTICE
The lawyer of Dutch-Pakistani national Sabir Khan, Andre Seebregts (L), arrives in the courtroom of The Hague, on February 12, 2013. Robin Utrecht—AFP/Getty Images

The U.S. wanted to put Sabir Khan on trial in New York for supporting terrorist attacks against Americans in Afghanistan

In a setback for the Obama administration’s use of law enforcement to fight al-Qaeda, the Supreme Court of the Netherlands on Friday blocked the extradition to the U.S. of Sabir Ali Khan, a Dutch-Pakistani man wanted in New York for conspiracy to commit murder and support of al-Qaeda.

The U.S. believes Khan was involved in Taliban and al-Qaeda attacks against Americans in Afghanistan’s Kunar Province in 2010, according to U.S. court documents obtained by TIME. Khan was arrested by Pakistani forces in Sept. 2010, allegedly at the request of the U.S., and held at a secret prison where he says he was tortured.

Khan, whose mother was Dutch, has citizenship in the Netherlands and was eventually released to Dutch authorities and flown to Holland, where he was arrested. His Dutch lawyer argued that the government should determine whether Khan was arrested at the U.S. behest, and whether he would face a threat of further torture if he were extradited.

The Dutch Supreme Court Friday ruled that the extradition could not proceed because the Dutch Government had declined to look into the alleged U.S. role in Khan’s arrest. The Court, which did not address the threat of torture by the U.S., concluded “the Dutch State should have done some research in this matter,” says Dutch Supreme Court Spokeperson Mireille Beentjes. In blocking the extradition, the court stressed “the large interest of combatting torture worldwide,” Beentjes said, quoting from the court’s opinion.

Robert Nardoza, spokesman for the Eastern District of New York, where Khan was indicted on five counts in 2010, said, “We’re going to review the ruling by the Dutch Supreme Court and consider our options.”

Khan, who is in his late 20s, declined to comment when reached by telephone Friday. He remains free and living in the Netherlands. In January, he told TIME that while he suspects he is under constant surveillance, “Officially I have no restrictions on me.”

The case shows how the U.S. must increasingly rely on other states’ legal systems in countering terrorism as Washington attempts to wind down extraordinary powers granted to the president after 9/11. Those states are sometimes more or less aggressive than the U.S. would like, and counterterrorism officials are having to adjust as a result.

 

TIME justice

Police Say They Won’t Take Explicit Photos of Teen in Sexting Case

Following a wave of backlash.

Police in Virginia have backed away from a controversial plan to take sexually explicit photos of a 17-year-old to corroborate the images with evidence in a sexting case, the Associated Press reports.

The teen in question faces two felony charges in juvenile court for manufacturing and distributing child pornography after exchanging sexts with his then-15-year-old girlfriend. Police and prosecutors received a warrant to take the sexually explicit photos to compare against photos he allegedly sent.

But amid a wave of backlash, Manassas Police Lt. Brian Larkin told the AP Thursday that his department would not move forward with the plan and will let the search warrant expire. He did not give a specific reason.

A day earlier, the Manassas Police Department issued a statement saying it was not their policy to “authorize invasive search procedures of suspects in cases of this nature.” That statement did not elaborate on whether the images would be taken.

[AP]

TIME justice

Virginia Police Issued Search Warrant For Photos of Sexting Teen’s Genitals, Lawyer Says

For evidence in a sexting investigation

Local police have issued a search warrant for explicit photos of a Virginia teenager accused of sexting his former girlfriend, lawyers for the teen said.

The Manassas City Police and Prince William County prosecutor are seeking pictures of the teen’s genitals, lawyer Jessica H. Foster told the Washington Post.

The teen faces two felony charges for manufacturing and distributing child pornography after exchanging sexts with his then-15-year-old girlfriend, whose mother filed the initial complaint with authorities. The case was dismissed in juvenile court in June, because prosecutors neglected to certify the teen’s juvenile status, the Post reports, but new charges were filed by the police.

The teen’s aunt told NBC Washington last week that local officers have already taken photos of her nephew’s genitals, but now want photos of an erection, too, to compare with evidence. The police reportedly told the teen that, if necessary, they would take him to a hospital for an injection that induces an erection.

“The prosecutor’s job is to seek justice,” Foster told the Post. “What is just about this? How does this advance the interest of the Commonwealth?”

If charged, the teen could face incarceration and would be forced to register as a sex offender.

Foster added, “I don’t mind trying the case. My goal is to stop the search warrant. I don’t want him to go through that. Taking him down to the hospital so he can get an erection in front of all those cops, that’s traumatizing.”

Carlos Flores Laboy, the teen’s appointed guardian ad litem told the Post that he found authorities’ desire to create more sexually explicit photos of a teenager, in the name of an investigation into child pornography allegations, both ironic and troubling.

“They’re using a statute that was designed to protect children from being exploited in a sexual manner to take a picture of this young man in a sexually explicit manner, said Flores Laboy. “The irony is incredible.”

He added, “As a parent myself, I was floored. It’s child abuse. We’re wasting thousands of dollars and resources and man hours on a sexting case. That’s what we’re doing.”

Calls to the Manassas City Police Department and the Prince William County prosecutor’s office were not immediately returned to TIME.

[Washington Post]

TIME justice

Insane Clown Posse Appeals Dismissal of Gang Lawsuit

Joseph Bruce, Violent J, Joseph Utsler, Shaggy 2 Dope
Joseph Bruce, aka Violent J, left, and Joseph Utsler, aka Shaggy 2 Dope, members of the Insane Clown Posse, address the media in Detroit, Jan. 8, 2014. The U.S. Justice Department is asking a judge to dismiss a lawsuit by Insane Clown Posse, which objects to a report that describes its fans as a dangerous gang. Carlos Osorio—AP

ACLU lawsuit says FBI violated band's free speech when it labeled their "Juggalo" fanbase a "hybrid gang"

The music group Insane Clown Posse Tuesday appealed the dismissal of a lawsuit it filed against the Justice Department over a 2011 FBI report that designated the rap duo’s fans, known as “Juggalos,” as a gang.

The American Civil Liberties Union of Michigan in January filed a lawsuit on behalf of the group alleging their free speech and due process rights, and those of their fans, were violated when the FBI labeled juggalos a “loosely organized hybrid gang.” ICP and Juggalos say they’ve been unfairly targeted by police because of the report.

U.S. District Judge Robert Cleland ruled last week that the Justice Department is not responsible for how other groups use their recommendations and that the report “does not recommend any particular course of action for local law enforcement to follow, and instead operates as a descriptive, rather than a prescriptive, assessment of nationwide gang trends.” The ACLU has appealed the decision to dismiss the suit.

In a statement, Tuesday, ICP member known as Violent J, also known as Joseph Bruce, said “This is not the end—we’ll keep fighting to clear the Juggalo family name.”

“Juggalos are not an organized fan club,” the ACLU says in its statement, “but a group of people who bond over the music and a philosophy of life, much like “Deadheads” bonded around the Grateful Dead.”

Juggalos, according to the FBI report, have been responsible for assaults and vandalism and a “small number” for more serious crimes. They were not included in the FBI’s most recent report.

TIME Crime

California Sheriff’s Deputy Who Shot Teen Won’t Face Charges

Rodrigo Lopez and Sujay Cruz, parents of Andy Lopez, walk to a news conference in San Francisco on Nov. 4, 2013.
Rodrigo Lopez and Sujay Cruz, parents of Andy Lopez, walk to a news conference in San Francisco on Nov. 4, 2013. Jeff Chiu—AP

Sonoma County Sheriff's Deputy Erick Gelhaus will not face criminal charges for the shooting and killing of 13-year-old Andy Lopez, who was carrying a pellet gun that resembled an assault rifle, in Santa Rosa last year — prosecutors said that the sheriff deputy feared for his life and acted appropriately

(SANTA ROSA, Calif.) — Prosecutors said Monday they will not file criminal charges against a Northern California sheriff’s deputy who shot and killed a 13-year-old boy carrying a pellet gun he mistook for an assault rifle.

The parents of Andy Lopez decried the decision, saying “it is impossible” to accept and they felt as though their son “had been killed again.”

The teen’s death last year heightened racial tensions in a mostly Latino neighborhood of Santa Rosa, a city of about 170,000 residents around 50 miles north of San Francisco. The shooting parked protests and criticism that the officer acted too quickly.

Deputy Erick Gelhaus fired multiple rounds in response to what he believed was an imminent threat of death, Sonoma County District Attorney Jill Ravitch announced at a news conference.

“While in the lawful performance of his duty, Deputy Gelhaus was faced with a highly unpredictable and rapidly evolving situation,” Ravitch said. “He believed honestly and reasonably that he was faced with a do-or-die dilemma.”

Ravitch displayed photographs of the pellet gun found next to Lopez and a real assault rifle to highlight similarities in appearance.

Gelhaus shot Lopez on Oct. 22 as the teen walked near his home with the pellet gun. The deputy told investigators he believed the gun was real and opened fire out of fear for his life.

At least one witness said he heard the deputy order Lopez to drop the pellet gun before shooting, Ravitch said.

Gelhaus fired eight times, striking the eighth-grader seven times with his department-issued 9 mm handgun. The district attorney said Gelhaus had 18 rounds in his gun and stopped shooting when he felt the threat had ended. Lopez was declared dead at the scene.

“This disheartening decision leaves the family feeling as though Andy had been killed again today,” Lopez parents said in a prepared statement released by their lawyer, Arnoldo Casillas.

Casillas represents the family in a wrongful death lawsuit filed in federal court in San Francisco against the county and Gelhaus, which has been on hold pending the outcome of the district attorney’s investigation. Casillas said he will petition the court to restart the litigation.

Casillas said “it is impossible” to accept Ravitch’s conclusions and that he and the family are asking federal officials to investigate.

The FBI said it is looking into the shooting to determine if any civil rights violations occurred. The district attorney forwarded her report to federal investigators.

FBI agent Brian Weber said investigators have “collected and reviewed documents and other evidence produced in connection with this matter and is working with the United States Attorney’s Office and the Department of Justice in Washington, D.C.” Weber declined further comment.

Those who have protested the shooting said the deputy did not give ample warning before opening fire. Investigators have said 10 seconds elapsed between the time Gelhaus and a trainee reported a “suspicious person” and then reported shots fired to dispatchers. The trainee did not open fire.

Ravitch said her office’s findings will not alleviate the pain felt by Lopez’s family or the community.

“This is a painful, painful chapter in the history of Sonoma County,” Ravitch said. “While it was absolutely a tragedy, it was not a criminal act.”

Sonoma County Sheriff Steve Freitas said an internal investigation also concluded Gelhaus and his partner acted appropriately and that the department would now evaluate the incident to determine if “there are things we can do differently going forward, or to improve performance in general.”

Freitas called for passage of a state Senate bill introduced in January that would require pellet guns to look clearly different from those that fire bullets.

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