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The Habeas Citebook: Prosecutorial Misconduct

News in Brief

California: Marissa Cruz and Paea Tukuafu filed a civil rights lawsuit against the city of San Jose police in August 2020, claiming they were “battered and bruised” by cops and subject to unreasonable search and entry. The two were celebrating ahead of Cruz’s 22nd birthday at a Holiday Inn in May 2019 when a noise complaint against the couple turned into a beating, which was captured on body camera video and aired by ABC News. Officers asked the couple to lower the volume of their music. But things went south when officers asked for identification. “Both Santa Cruz and Tukuafu argued over the necessity of handing over their I.D. for a noise complaint, while police insisted that department protocol demands they identify everyone they come into contact with. Tukuafu eventually relented, but not before another three officers arrived,” legalreader.com reports. “After the couple ‘failed the officers’ ‘attitude test,’” the officers allegedly struck them with batons, tasers and ‘sponge rounds,’ according to the complaint. The couple was transported by ambulance to the hospital for evaluation of ‘serious’ injuries before being booked and spending the night in jail,” according to the complaint. Criminal charges were not filed.

Florida: Bodycam footage from the arrest of an 8-year-old Key West boy with special needs at his school in December 2018 has sparked outrage. Officers tried to handcuff the child—who allegedly hit a substitute teacher—only to discover his wrists were too tiny. In August 2020, the boy’s mother, Bianca N. Digennaro, represented by attorney Benjamin Crump, filed suit against the school district and city alleging violations of the Fourth and Fourteenth amendments and the Americans with Disabilities Act. She said her child “was arrested, taken to jail, finger-printed, DNA-swabbed and had his mugshot taken that day. The boy — who was 3-and-a-half-feet tall and weighed 64 pounds, Crump said — was charged with felony battery. His mother fought the case in court for nine months until a prosecutor dismissed the charges,” abc7.com reports. The suit alleges the officers “used excessive force, that school officials failed to intervene, and that the city and school district violated the Americans with Disabilities Act.” Police Chief Sean T. Brandenburg said the officers were following procedure.

Florida: Now-suspended Clay County Sheriff Darryl Daniels was arrested in August 2020 on multiple charges, including evidence tampering, a third-degree felony, and three misdemeanor counts of false reports to law enforcement authorities, news4jax.com reports. The subject of a Florida Department of Law Enforcement investigation, Daniels is accused of trying to get his longtime mistress arrested after she broke off their six-year affair and for filing a false stalking charge against her. She had worked for Daniels at his previous job as a Duval County corrections officer. Daniels, who is Black, also made a Facebook video warning Black Lives Matter protesters to stay away from Clay County. He said if any protesters organized there and threatened to destroy any property, he would deputize every local legal gun owner to handle them. Daniels has maintained his innocence.

Georgia: State Trooper Jacob G. Thompson was fired and charged with murder and aggravated assault for fatally shooting Julian Lewis, 60, in the forehead after a brief chase over a burned-out tail light, news media report. The incident took place August 7, 2020. Thompson, 27, who is White, was booked into Screven County Jail. Thompson alleges he shot Lewis because he believed Lewis was going to hit him with his car. Thompson reportedly used a Precision Intervention Technique to cause the vehicle to stop in a ditch, reports show. He fired one round, hitting Lewis, who was pronounced dead at the scene. Francys Johnson, a former head of the Georgia NAACP, told the Atlanta Journal-Constitution: “We got lots of messages from people in the community that the habit of ex-trooper Thompson was to racially profile and harass Black and brown people on the highway. This was not shocking to them that this happened.” Lewis, meanwhile, “was no threat as a 60-year-old man just trying to make it home from a convenience store run” to get a grape soda for his wife, said Johnson, an attorney representing Lewis’ family. The U.S. Department of Justice would not confirm or deny a civil rights investigation.

Illinois: Police agencies in the state have received $4.7 million in military gear since President Trump lifted restrictions President Obama put in place on a federal surplus program, chicagotribune.com reports. Consider that Kane County found itself with a 10-foot-tall armor-protected truck once deployed for combat in Iraq. The sheriff was not impressed with the message this kind of vehicle for SWAT transport would deliver. “It’s a way of brandishing your police power and it’s not necessary,” Ron Hain said. “I don’t like it and I don’t think the public likes it.” Aislinn Pulley, co-founder of the Chicago chapter of Black Lives Matter, agreed. “It’s a message of intimidation and terror. It’s the same message that is used overseas when our military occupies someone else’s country,” said Aislinn Pulley, co-founder of the Chicago chapter of Black Lives Matter. “And what is that message? The message is we will destroy you; we will kill you if you step out of line.” The sheriff ordered the truck back to the garage.

Kentucky: State Police have settled a wrongful conviction lawsuit with Susan Jean King, kentucky.com announced in August 2020. King had sued then-Trooper Todd Harwood and other defendants in 2015. She contended they falsified evidence to gain her conviction. In the arrest warrant, the detective failed to note she “weighed 108 pounds and had only one leg and no prosthetic,” courier-journal.com reports, undercutting his claim that she killed her boyfriend, Kyle “Deanie” Breeden, by dragging him and throwing his 187-pound body off a bridge into the Kentucky river, according to kentucky.com. King served over six years in prison for the 1998 killing. She “pleaded guilty to manslaughter in 2008 despite asserting her innocence. Her charges were dismissed in 2014, two years after Richard Jarrell allegedly confessed to the killing,” news media report. “The Kentucky Court of Appeals vacated King’s conviction after she had been released from prison on a 10-year sentence, calling it an ‘egregious violation’ of justice, and prosecutors in Spencer County decided not to retry her,” courier-journal.com reports. In addition, “Jarrell later recanted his confession, though the lead investigator was accused of forcing it, according to a separate lawsuit.” In a settlement, State Police agreed to pay $750,000 in damages, WDRB-TV reports, citing King’s attorneys.

Massachusetts:Three current and six retired Boston police officers face charges after being accused of overtime pay fraud at an evidence warehouse, CBS Boston reports on September 2, 2020. Said U.S. Attorney for the District of Massachusetts Andrew Lelling: “These officers are charged with stealing taxpayer money, year after year, through fraud. Beyond the theft of funds, this kind of official misconduct also erodes trust in public institutions, at a time when that trust is most needed.” According to lawandcrime.org reports, retired officers charged include: “Sergeant Gerard O’Brien, 62; Sergeant Robert Twitchell, 58; Officer Henry Doherty, 61; Officer Diana Lopez, 58; Officer James Carnes, 57, Officer Ronald Nelson, 60. The current officers, who have been suspended without pay pending the outcome of the case: Lieutenant Timothy Torigian, 54; Officer Michael Murphy, 60; Officer Kendra Conway, 49.” The officers are accused of turning in “false and fraudulent overtime slips” and are said to have “collectively embezzled over $200,000 in overtime pay” between May 2016 and Feb. 2019. “At the same time, the Boston Police Department was receiving more than $10,000 per year in federal grants (that was from 2016 to 2018).”

New Mexico: Las Cruces will pay $6.5 million to the family of Antonio Valenzuela, who died in February 2020 during a traffic stop by Las Cruces police, CNN reports. The now-fired officer, Christopher Smelser, who faces a second-degree murder charge, “allegedly used a vascular neck restraint on Valenzuela, a maneuver which has since been banned by the department during apprehensions,” CNN reports. After Valenzuela was pulled over, police learned he had a warrant for a parole violation, the Doña Ana County District Attorney’s Office stated. “Valenzuela fled on foot and police chased him and deployed a Taser twice ‘without affecting’ him,” a district attorney’s news release states. “Body-camera footage released by authorities appears to show Smelser tackling Valenzuela.” In addition, “Smelser was heard saying, ‘I’m going to f**king choke you out, bro.’” The victim “died from ‘asphyxial injuries due to physical restraint,’ and methamphetamine was listed as a significant contributor to his death, the Office of the Medical Investigator ruled.” Paramedics attempted to save Valenzuela but could not, the district attorney’s office said. The city of Las Cruces, which denies liability, notes that “The police department has never authorized, provided training, or implemented a policy that allows the use of choke holds and has prohibited the use. The use of vascular neck restraint, which is not a choke hold, was prohibited by policy by the former chief of police. It is well established law that police officers are already required to intervene in instances where another officer violates a person’s civil rights.”

Maine: More than 50 bills that would bring criminal justice reform to the state remain in limbo: Legislators could not agree “on the timing or scope of a special session,” penbaypilot.com reports in August 2020. Among the 53 bills that passed committees are ones that would eliminate cash bail for many low-level crimes, reduce the number of kids in juvenile justice, and “help community services keep people experiencing a mental health crisis out of jail.” said Rep. Charlotte Warren’s (D-Hallowell), House chairwoman of the criminal justice committee, who’s been working a long time on this. “Among the pressing items on Warren’s list are a bill to reform the county jail funding system, a bill to reduce the population at the troubled Long Creek Youth Development Center, a measure aimed at drug sentencing reform and one supported by all prosecutors in the state to help reduce court caseloads.” If the session does not resume, the process would begin anew. “It would be a real shame to not go back and have to start the process all over again in January. There was a lot of hard work that went into the bills, and a lot of negotiating and compromise,” said Meagan Sway, policy counsel with the ACLU of Maine.

Maryland: Video that showed Baltimore cop Leon Riley wrapping an arm around a suspect’s neck in 2019, has raised eyebrows and brought him charges of assault, reckless endangerment and misconduct in office. “In the video, the man can be heard saying, ‘You choking me. You choking me, sir,’ heraldmailmedia.com reports. “Prosecutors wrote in the indictment that the 29-year-old now-suspended officer ‘did recklessly engage in conduct, to wit: restricting the breathing of a citizen, that created a substantial risk of death or serious physical injury.’”

Nebraska: A woman who was arrested in November 2016 during a domestic disturbance call filed a federal lawsuit under a pseudonym, alleging the “Lincoln County Sheriff’s Office committed misconduct and rape” at the jail, Lincoln News Now reports. “Once she arrived in the booking area, she claims she was thrown on the floor, Tased, and left in a restraint chair for hours. After that, she says, she was taken to another room and raped by ‘multiple’ unnamed employees of the sheriff’s department and then taken to a cell,” Lincoln News Now reports. Her lawyer has complained he has been unable to obtain jail video. The sheriff’s office has denied the accusations.

Nebraska: Hilario Velasquez of Lexington, is suing, along with his sister Sarah Garrett, Cozad police Sergeant John Peden and the city of Cozad for excessive force and failure to properly train law enforcement staff. The lawsuit in federal court, filed in August 2020, says Peden tased Velasquez during an encounter in his sister’s backyard. According to the Lincoln Journal Star: Velasquez was sitting on a swing empty-handed. Peden, accompanied by another officer, walked in and demanded to know where their brother was. “It wasn’t clear why police were looking for their brother,” journalstar.com reports. “Cozad Police Chief Mark Montgomery wouldn’t say and declined to comment on the lawsuit. But a 50-second video clip shows what happened next. When Peden told Velasquez he had to leave, Velasquez said they weren’t looking for him, and he didn’t have anything to do with it. ‘Just get up and leave,’ Peden told Velasquez, Peden pointing a Taser at him. ‘No, my son’s in there,’ Velasquez said, motioning to the house, a second before Peden shocked him, then kept verbally pressing. ‘Get up.’” Officers accused the siblings of harboring a fugitive. Valasquez went to jail; his sister was ticketed, but neither ended up being charged.

Tennessee: Three officers in Nashville who wrongly raided the home of an innocent family on August 18, 2020, have been suspended and an investigation is underway, CNN reports. “The officers who’ve been decommissioned announced themselves, then began using a battering ram as they executed a warrant in search of evidence connected to a teenager wanted in a property crimes investigation, “ CNN quoted Interim Police Chief John Drake. “They were not there for a violent criminal or drug raid, he added.” Officials later learned the 16-year-old suspect had not lived at that address in several months. The information the officers received was “stale,” Drake said, and the department failed to do surveillance. “We have to be better than that, and I absolutely assure you, we will be moving forward,” he said. All search warrants must now be approved by a deputy chief, he announced, and crime suppression teams will receive extra training.

Utah: Some Black Lives Matter protesters face felony criminal mischief charges, which carry a gang enhancement, the St. George News reports. They “could face up to life in prison if they’re convicted of splashing red paint and smashing windows during a protest, a potential punishment that stands out among demonstrators arrested around the country and one that critics say doesn’t fit the alleged crime,” the St. George News reports. Prosecutors defended the charges, saying “the protesters worked together to cause thousands of dollars in damage.” However, “watchdogs called the use of the 1990s-era law troubling, especially in the context of criminal justice reform and minority communities.”

Washington: The Seattle Police Department (“SPD”) placed a sergeant on leave after he drove on a sidewalk and allegedly compared protesters to cockroaches, seattletimes.com reports. Videos posted online in August 2020 show the incident. According to the news site: “He appears to complain about Seattle and efforts to cut SPD’s budget, saying he ‘used to love Seattle’ but now the city is ‘dirty’ and ‘gross,’ but that ‘they pay me like 200-grand a year to babysit … these knuckleheads every night because they smash up all the businesses.’” A source in the SPD identified the officer as Michael Tietjen, seattletimes.com reports.

Washington, D.C.: Former FBI attorney Kevin Clinesmith pleaded guilty in August 2020 to one felony count of making a false statement, namely altering the text of an email from another official in order to continue surveillance of Carter Page in the 2016 investigation of suspected collusion between the Trump campaign and the Russian government, national media report. “Clinesmith was accused of doctoring a document to help justify surveillance of [the] former Trump campaign adviser as part of the 2016 investigation,” The Washington Post reports. Clinesmith had been “working on the early Russian investigation into Page and other Trump-connected advisers, then known as Crossfire Hurricane.” Page was never charged with wrongdoing.

Wisconsin: Demonstrations over the August 23, 2020, police shooting of Jacob Blake, an unarmed 29-year-old Black father, in the city of Kenosha, drew national attention as thousands of largely peaceful protesters took to the streets and fires destroyed businesses. On the 23rd, Blake was shot in the back multiple times after police responded to a domestic incident. Three officers attempted to arrest him and two deployed Tasers attempting to subdue him, the Kenosha News reported. “As Blake leaned into his vehicle, Kenosha Police Officer Rusten Sheskey, who was holding his shirt, fired his weapon seven times, striking Blake in the back. Blake was left paralyzed by the shooting, according to his family.” Meanwhile, Blake’s children — ages 3, 5 and 8 — were inside the SUV, said family attorney Benjamin Crump. “Crump said Blake was attempting to de-escalate a fight between two other people when officers arrived at the scene, drew their weapons and tased him,”cbsnews.com reports. At press deadline, Blake was in serious condition. From his hospital room on September 4, he made his first court appearance via video to charges from a domestic abuse case in May, including third-degree sexual assault and misdemeanor counts of disorderly conduct and criminal trespassing. Defense attorney Patrick Cafferty entered a not guilty plea on his behalf.

 

 

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