Courts
Arizona’s New Law Upends Federal Priorities
originally posted by Michele Waslin for Immigration Impact [click here]
Jul 22nd
Today, a federal judge will begin to hear arguments on Arizona law SB1070. One of the problems with SB1070 is that it places the federal government in an impossible situation. While the proponents of SB1070 say that Arizona will help ICE enforce immigration laws, the fact is that it would impinge upon ICE’s ability to fulfill its mandate, set enforcement priorities, and allocate resources effectively. SB1070 would inundate DHS with requests to determine the immigration status of individuals police have arrested for suspicion of being unlawfully present. If ICE determines that the individual is indeed unlawfully present, ICE would be expected to take custody of him/her and place him/her in deportation proceedings. Today, IPC released a new fact check on how Arizona’s new law interferes with federal enforcement priorities.
Furthermore, through the 287(g) program, Secure Communities, and the Criminal Alien Program, ICE would screen all people booked into Arizona jails and convicted of crimes. ICE would then be expected to take custody of those immigrants charged with or convicted of these state crimes and place them in deportation proceedings.
In other words, Arizona would supply ICE with a huge number of people to deal with – most of them charged with or convicted of very minor offenses. While proponents of the law would say that this is the very purpose of the law, it actually strains ICE’s resources and harms their ability to prioritize the immigrants they target.
ICE already has its hands full, and it has developed enforcement priorities to help deal with its huge mandate. Currently there are 10-11 million unauthorized immigrants, countless legal immigrants who are deportable for serious and minor criminal offenses, and many employers breaking the law by employing unauthorized workers.
Congress has mandated that ICE prioritize the deportation of immigrants who pose a danger to national security or a risk to public safety, and those with criminal histories. So ICE principally targets immigrants engaged in or suspected of terrorism or espionage; immigrants convicted of crimes (with a particular emphasis on violent criminals, felons, and repeat offenders); gang members; and those subject to outstanding criminal warrants.
ICE has created a three-tiered priority system to allow them to evaluate each individual and take action on the highest priorities. Those immigrants charged with or convicted of serious crimes such as murder, rape, or kidnapping receive the highest priority, while immigrants charged with or convicted of less serious crimes are lower priority, and ICE takes action on them as their resources allow.
The crimes created by the Arizona law fall into the lowest priority. In essence, Arizona would be asking ICE to respond to all of Arizona’s requests and take custody of countless individuals who are not serious threats to the country and who have not committed serious crimes. This means that ICE would have fewer resources to deal with serious criminals, terrorists, and other priority individuals.
According to former INS Commissioner Doris Meissner:
[S]ince SB1070 does not, and cannot, distinguish among ICE-established priorities of targeted categories of aliens, Arizona’s verification requests would be likely to encompass those who have committed minor violations under Arizona law, and those simply suspected of such offenses – potentially at the expense of pursuing more serious criminal aliens, both in Arizona and in other states. Furthermore, SB1070 would not only conflict with federal priorities, but would also put Arizona in a position to dictate priorities for immigration enforcement to ICE and the federal government, which is contrary to our existing federal system. The effect would be to force ICE to respond to reports of civil immigration status violations over all other priorities, with the likely outcome of overwhelming carefully calibrated strategies for meeting federal statutory mandates within the bounds of budgetary constraints.
In other words, if Arizona’s intention was to “help” the federal government do its job, it has failed. SB1070 unfairly hijacks federal priorities and resources at the expense of our safety and security.
Photo by xomiele
Obama Administration Mimics George W. Bush on Immigration Prosecutions
originally posted by Walter Ewing for Immigration Impact [click here]
Jul 21st
It would seem that the Obama administration has chosen to mimic its predecessor in its zeal to pursue the criminal prosecution of unauthorized immigrants for minor, nonviolent offenses such as crossing the border. As the Associated Press reported recently, “federal prosecutions of immigrants soared to new levels this spring, as the Obama administration continued an aggressive enforcement strategy championed under President George W. Bush.” However, the IPC has noted that this “dramatic increase in criminal prosecutions can be traced in large part to Operation Streamline, a Department of Homeland Security (DHS) program which mandates federal criminal prosecution and subsequent imprisonment of all persons caught crossing the border unlawfully.” Yet large numbers of these federal immigration prosecutions “have focused on non-violent border crossers.” In other words, DHS under the Obama administration is needlessly clogging the federal courts with people who have not committed any serious crime.
The Associated Press story draws upon data compiled by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, which found that “criminal immigration enforcement by the two largest investigative agencies within DHS has increased to levels comparable to the highest seen during the Bush Administration.” Specifically, writes TRAC:
The government reported that during April 2010 there were 7,822 new prosecutions referred by Customs and Border Protection (CBP), following 7,090 prosecutions in March. The total of 14,912 is the highest two-month total since September and October of 2008, when the combined figure was 16,127.
In addition, there were 2,119 new criminal prosecutions referred by Immigration and Customs Enforcement (ICE) in April 2010, following a March figure of 2,026. The combined two-month total of 4,145 is the highest recorded since the creation of the agency in 2005. This surpasses previous highs of 3,777 in July and August of 2008 and 3,787 in July and August of 2009.
As the IPC noted following the release of similar TRAC data in February, “the prioritization of immigration has made it difficult for law enforcement agents to pursue other more serious crimes.” In fact, the Associated Press rightly points out that this “heavy focus on immigration investigations already is creating a heavy burden for the swamped courts along the U.S.-Mexico border, whose judges handle hundreds more cases than most of their counterparts in the rest of the country.” This is a pointless waste of law-enforcement and criminal-justice resources that would not be taking place if the Obama administration and Congress had the political courage to pursue comprehensive immigration reform rather than the failed enforcement-only policies of decades past.
Photo by Beverly & Pack
A Closer Look at the Seven Lawsuits Challenging Arizona Law S.B. 1070
originally posted by Kalie Moody for Immigration Impact [click here]
Jul 16th
Almost immediately after Arizona governor Jan Brewer signed S.B. 1070 into law, lawsuits were filed in federal court in Arizona challenging the law. The lawsuits all seek the same result—a halt to the law’s enforcement—although each suit argues different grounds. Some suits cite civil liberty violations, racial profiling and unlawful regulation of federal immigration law, while another suit states that the police training videos exacerbate conflicts between federal and state law. As July 29, 2010, the date S.B. 1070 is set to go into effect, draws near, litigants and supporters on both sides of the lawsuits are seeking swift resolutions. Ultimately though, the timing of any resolution will depend on the court.
Six lawsuits have been brought by non-profit organizations and individuals and a seventh lawsuit was filed by the U.S. Department of Justice. Five of the six lawsuits filed by individuals and organizations ask the court to declare S.B. 1070 unconstitutional and to block Arizona from enforcing the law. The sixth lawsuit and the lawsuit brought by the U.S. Department of Justice ask for the same relief, but only seek to block the first six sections of the law. This would leave intact provisions about employment and the impounding of vehicles.
In Escobar v. Brewer and Salgado v. Brewer, Arizona police officers claim that they cannot enforce S.B. 1070 absent a judicial declaration that it is lawful and argue that they could be sued for violating the civil liberties of people against whom they would be required to enforce the law. In a third lawsuit, Frisancho v. Brewer, a Hispanic resident of D.C. who plans to visit Arizona claims that police enforcing S.B. 1070 may stop him based solely on his ethnicity.
A fourth and fifth lawsuit, Friendly House v. Whiting and National Coalition of Latino Clergy and Christian Leaders v. State of Arizona, are class action lawsuits brought by non-profit organizations and individuals. Both lawsuits claim that S.B. 1070 unlawfully regulates immigration, will result in widespread racial profiling, and will unconstitutionally deprive people of freedom of speech. In a sixth lawsuit and the most recent class action, League of United Latin American Citizens v. Arizona, non-profit organizations and individuals claim, among other challenges to the law, that the police training materials released to train Arizona law enforcement on how to enforce S.B. 1070 worsen conflicts between the United States Constitution and federal laws on the one hand, and Arizona law on the other hand,
A seventh lawsuit filed by the U.S. Department of Justice claims that S.B. 1070 conflicts with comprehensive federal immigration policy, ignores humanitarian concerns, and will interfere with foreign policy and national security interests.
U.S. District Court Judge Susan Bolton will preside over six of the seven lawsuits and has scheduled hearings in three of the cases. On July 15, Judge Bolton heard oral arguments in Salgado, and on July 22, Judge Bolton will hear oral arguments in Friendly House and in the case brought by the United States.
In response to any of the hearings that are scheduled, Judge Bolton could block Arizona from enforcing S.B.1070 while the lawsuits are pending. For this to occur, the plaintiffs have to convince the judge that if the law was to go into effect, plaintiffs would suffer “irreparable harm” and that the plaintiffs are likely to win on the merits of their case. On the other hand, the judge could also dismiss the cases entirely. If that happened, the plaintiffs could appeal to the Ninth Circuit Court of Appeals to stop S.B. 1070 from going into effect. The Ninth Circuit could override Judge Bolton’s decision and halt enforcement of S.B. 1070, or it could uphold Judge Bolton’s ruling. There is no guarantee that Judge Bolton will issue a ruling before the July 29 effective date but because she is hearing the cases next week, it is possible she will rule on the motions for preliminary injunction.
If the lawsuits are not dismissed at these hearings or other hearings, Judge Bolton will eventually make a final decision about whether to strike down the law. If the court upholds the law, plaintiffs could appeal the court’s decision to the Ninth Circuit and if unsuccessful at the Ninth Circuit, they could seek Supreme Court review. It often takes years for a case to wind its way through the appeals process. Unless the court acts to block enforcement of the law during the appeal, it could take many months before any court issues a final decision.
Photo by M.V. Jantzen.
Is SB 1070 Constitutional? Don’t Expect a Simple Ruling
originally posted by Daisy Hernandez for Colorlines [click here]
Jul 15th
Starting today, U.S. District Court Judge Susan Bolton will begin hearing arguments for and against Arizona’s “show me your papers” law, SB 1070. She’ll be hearing from an Arizona cop today and civil rights groups and the Justice Department next week. She’ll be deciding whether to temporarily halt the law from going into effect on July 29. But ultimately, the big question she’ll have to contend with is whether Arizona’s law is constitutional or not.
We got a jumpstart on the court by talking with constitutional legal scholars.
Some, including Temple University law professor Peter Spiro, have already noted that the Constitution doesn’t use the word immigration. It does say that Congress can regulate naturalization, and some SB 1070 supporters are claiming that the word naturalization is only about who gets to be a citizen — not about who’s coming across the border. So the feds are in charge of naturalization per the Constitution, goes the argument, but not immigration.
This makes for good political fodder in the blogosphere but it won’t have any traction in court, according to Steven D. Schwinn, associate law professor at the John Marshall Law School in Chicago.
“Naturalization is whether or not people are becoming citizens and a principle way of doing that is by coming into the country,” says Schwinn.
More importantly, he notes, the federal government has a large immigration system in place. Yes, it might be broken, ineffective and inhumane, but it’s still a system of federal laws and the federal courts have recognized over and over again that immigration is Washington’s problem. Per the Constitution, states can’t pass legislation that would interfere with federal policy.
So the court’s big question is: Does SB 1070 mess with federal law?
People across the country will be expecting a straightforward yes or no, but the court is probably going to take the statute apart and examine it in portions — which means the court might invalidate some parts of SB 1070 and let others stand, according to Richard Friedman, an expert on constitutional law at the University of Michigan Law School. “It’s going to be at the level of grubby detail,” he says.
SB 1070, for example, makes it a crime to not have proof of citizenship. Despite the claims of xenophobes, it’s actually not a crime to be in the country without papers. It’s a civil violation. Arizona makes it a state crime.
This might sound like a slam dunk. The Arizona state law is setting a different policy from the federal one. But difference doesn’t mean interference. According to Friedman, Arizona could argue “that nothing in federal law says that it can’t be a criminal law. The federal government says it’s a civil violation and the state is making it a criminal violation.”
Where the court might rule that the Arizona law does conflict with the federal one is on foreign relations, according to both Friedman and Schwinn.
The Justice Department has argued in its lawsuit against SB 1070 that the law interferes with foreign policy and with Congress’s right to regulate commerce. Now, it might be a bit touchy to say that Juanito down the street is part of international commerce, but considering that people are coming here to work and are sending money back to their home countries, it’s plausible. The court will apparently be very receptive to this.
“When the federal government comes in and says this is hurting our efforts to conduct foreign relations, the courts tend to listen,” says Friedman.
On the issue of racial profiling, the court will need to do some serious soul searching.
Yes, SB1070 would violate the Fourth Amendment, which protects people against unreasonable searches and seizures. But according to a Washington Post oped by Gabriel Chin, a law professor at the University of Arizona, and Kevin Johnson, a law professor at UC Davis, this amendment is being violated all the time, even now by the Obama administration:
“Border enforcement officers regularly admit in court that ‘Hispanic appearance’ is one reason for an immigration stop,” they write.
According to Chin and Johnson, this can happen because in 1975 the Supreme Court ruled that the “likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor” for Border Patrol agents to question people. Arizona’s law is unique in that it turns these violations that happen routinely along the Border into statewide policy.
“I’m not sure that there’s going to be one magic bullet that resolves the whole case,” of SB1070, Friedman notes.
Just last year, the Ninth Circuit ruled that Arizona’s law to suspend the business licenses of employers hiring undocumented workers didn’t conflict with federal law. SB 1070 proponents have practically worn out their vocal chords from telling people about that case, insisting SB 1070 will prevail in the same way.
The reality is that although federal law prohibits states from punishing employers who hire undocumented workers, it has a clause saying states can basically do what they want on the issue of licensing. So Arizona said, thanks, we’ll interpret that to mean we can take away a business’s license if we find out they’re hiring undocumented immigrants. And the federal court agreed. The Supreme Court decided last month to review the case.
Photo: istock/Stefan Klein
Arizona Senators Decry DOJ Lawsuit Yet Refuse to Support Immigration Reform
originally posted by Seth Hoy for Immigration Impact [click here]
Jul 7th
Yesterday, the Department of Justice (DOJ) filed a lawsuit against the state of Arizona, challenging the state’s immigration enforcement law (SB 1070). The DOJ lawsuit—which seeks to stop the law from going into effect on July 29th—argues that Arizona’s law is unconstitutional since it claims state authority over federal immigration policy. While political opposition in Arizona to DOJ’s legal challenge has come from both parties, some of the most laughable comments have come from Arizona’s Republican Senators who have used the lawsuit as yet another opportunity to claim that the Obama administration has failed to do anything on immigration. Only Senator Lindsay Graham (R-SC) has been willing to engage the Democrats on immigration at all this year and even still, Sen. Graham back peddled after health care reform was passed. To date, ZERO Republicans are willing to step forward and play ball on an actual immigration reform bill—which makes the political finger-pointing from those unwilling to meet the President halfway all the more infuriating.
Shortly after the DOJ filed their lawsuit yesterday, Arizona Senators John McCain and Jon Kyl were quick to issue the following statement decrying the federal government’s lack of action on immigration enforcement:
Moreover, the American people must wonder whether the Obama Administration is really committed to securing the border when it sues a state that is simply trying to protect its people by enforcing immigration law.
Attorney General Holder speaks of the ‘federal government’s responsibility’ to enforce immigration laws; but what are the people of Arizona left to do when the federal government fails in its responsibility?
The Obama Administration has not done everything it can do to protect the people of Arizona from the violence and crime illegal immigration brings to our state. Until it does, the federal government should not be suing Arizona on the grounds that immigration enforcement is solely a federal responsibility.
This, by the way, is coming from the same senators who led the Republican charge for comprehensive immigration reform back in 2006 and 2007. Back then, Sen. McCain said, and I quote, “I believe the only way to truly secure our border and protect our nation is through the enactment of comprehensive immigration reform.” But where is Sens. McCain or Kyl’s support for reform now, especially after President Obama opened the door to Republican support for a reform effort? And does questioning the government’s commitment to border security after the President requested $600 million in additional border security spending to fund 1,000 additional Border Patrol agents, 160 additional ICE agents, and improved infrastructure along the Southwest Border really make sense?
The point is that the “federal government’s responsibility”—a government which Sens. McCain and Kyl are certainly a part of—to reform our broken immigration system is being thwarted by the same senators who complain that the government isn’t doing enough. Sure, it’s an election cycle at a time when “get tough” politics are popular and nevermind the fact that SB1070 doesn’t actually do anything to fight crime, but the glaring hypocrisy is a bit much. Meanwhile, Arizona Gov. Jan Brewer—who claims Arizona is now under attack from the President in addition to violent Mexican drug cartels—is fundraising for legal funds to defend SB 1070 and vows to “oppose the President’s amnesty plan” (which she also refers to as a “path to citizenship”). Apparently, as an Arizona politician, you can have your cake and eat it too.
Photo by Politico Mafioso.
Oscar Grant Trial: Video Analysis Expert Jeopardizes Defense’s Case
originally posted by Julianne Ong Hing for RaceWire [click here]
Jun 24th
If a criminal trial is a marathon, a long slog where every minute counts but progress is slow, the prosecution in the Oscar Grant trial just advanced a tiny, incremental bit against the ex-BART cop Johannes Mehserle’s defense. On Wednesday, the defense’s narrative of the incident on New Year’s Day 2009 started to fray at the seams, revealing the inconsistencies in the story Mehserle’s attorney Michael Rains had been building. And the prosecutor David Stein made sure the jury knew it.
In the afternoon Rains called up Michael Schott, a forensic video expert, to analyze the five cell phone videos taken on the Fruitvale BART station when Oscar Grant was killed. Right away, Rains announced that Schott had been hired right after the incident to analyze the cell phone videos, and was being paid $125 an hour for his expertise. The prosecutor David Stein had tried to bar Schott from testifying in a pre-trial motion, arguing that the jury should be allowed to make sense of the videos for themselves, but the judge allowed Schott in.
But he needn’t have fought so hard; Schott provided blatantly false testimony with such thin evidence that he likely jeopardized the credibility of the defense’s case. Rains has been trying to convince the jury that the whole incident was a terrible accident and that Mehserle intended to reach for his Taser when he instead grabbed his Sig Sauer p226 and shot Grant in the back that night. He has also been trying to prove that Oscar Grant and his friends presented a real threat to the officers that night.
Schott said that contrary to multiple eyewitness accounts and cell phone videos that showed otherwise, Oscar Grant had not been kneed in the head by Tony Pirone. He also said that even though Grant appears to fall to the ground right after Pirone approaches him, it was actually Grant who punched Pirone. Schott also suggested that Jackie Bryson, Grant’s friend, had swung at Johannes Mehserle that night.
Each of these pronouncements was met by audible contempt and gasps of disbelief from the audience. “He’s fabricating. He’s telling the jury, if it’s 80 degrees outside, he’s trying to say, ‘No it’s raining,’” Jack Bryson, Jackie Bryson’s father, told ColorLines after court adjourned for the day. “He’s trying to mislead.”
Schott tried to show that as BART cop Tony Pirone approached Oscar Grant and his friends, instead of Pirone having punched Grant, as had been widely reported, it was Grant who had kneed Pirone. Schott pointed to a bunch of blobs and blurs—the cell phone video was taken from inside the BART train and was barely discernible at any speed or size, let alone slowed down to each millisecond and blown up on the courtroom’s 56” tv screen. Schott’s evidence was the muddled reflection in the glass of officers whose movements were otherwise obscured, which apparently showed that Pirone’s body moved backwards in a way that would have been consistent with him having been kneed by Grant. “If you just look here, you can see it,” Schott said, moving his cursor around the screen. “No you can’t!” whispered a voice behind me.
Schott, seeming to sense the skepticism, said with his software he saw things that the naked eye could not.
“You can see a flesh colored object rise up, and what it appears is that Pirone’s midsection moves in tandem” with movements as if he’d been punched, Schott said. Except that Pirone himself, who was on the witness stand last week, never mentioned having been kneed by Oscar Grant. And when Bryson took the stand, Rains never took the opportunity to ask him why he had supposedly taken a swing at Mehserle. This supposed expert was seeing things in the video that not even the people involved in the exchange testified happened.
But Schott quickly followed with a caveat: “But, when dealing with shapes that could best be described as a blob, I don’t really want to say either way…I will offer my analysis and leave the interpretation to the jury.”
The jury, meanwhile, leaned forward, squinting, peering at the gigantic screen. They seemed to be as unable as the rest of the court observers to discern exactly what Schott said he could see. So threadbare was his proof that ultimately, it’s possible Schott’s testimony did more to hurt than help the defense.
“He’s trying to put reasonable doubt in the jury’s mind,” Jack Bryson said. “He’s playing a game, that’s what he’s trying to do.”
Mehserle’s Taser Instructor Testifies
In the morning Rains called up Stewart Lehman, a BART police training officer who introduced Tasers to the BART police force and ran the Taser training that Mehserle attended. During his direct examination, Rains would pick and choose which part of the Taser training to elevate or reject. He pushed hard on the notion that the Taser training Mehserle received was inadequate while emphasizing training tips that supported Mehserle’s ultimate action to use lethal force.
Rains had Stewart walk through the 6-hour schedule for the Taser training Mehserle received on December 3, 2008. The training set aside time for static drills and practical training in how to shoot a Taser. Lehman also reviewed departmental use of force policies with his officers that day. Rains seized on the fact that Lehman used a “toolbox” theory to explain when the use of force was allowed, instead of a more old-fashioned “ladder” approach that ranked an officer’s options from non-violent to lethal, with simple officer presence at the bottom and lethal force at the top. In Lehman’s opinion, the ladder approach “gave the perception that an officer had to slide up…instead of responding right away with lethal force if they were faced with a lethal force situation.”
But the toolbox approach Lehman taught his BART officers put all available force options on a continuum so that an officer could choose which force option best suited the situation, be it the deployment of a baton, a canine attack, simple verbal commands, a Taser, pepper spray, or a firearm. Rains took particular care to underscore this point.
Except that Rains also highlighted the fact that the practical training portions were weak and insufficient, emphasizing that because of financial constraints there weren’t enough Tasers for every cop to have their own so officers could bring them home to practice. Instead, there were only enough Tasers for every cop on any one shift. Each Taser cartridge costs around $22, and this supposedly kept cops from being able to be thoroughly trained in their uses. Rains also pointed out that officers were not allowed to bring their firearms into Taser training, as if to imply that there would be no opportunity for officers to have real practice discerning between one or the other before they were sent out into the field.
During cross-examination, the prosecutor David Stein methodically challenged Rains’ statements. Turns out that even though BART cops aren’t allowed to bring their firearms into Taser trainings, neither are they allowed to bring their firearms into baton or other defensive tactics trainings. “It’s a safety thing, right?” Stein asked. “Yes, it is.” Lehman confirmed.
The prosecution also showed that the so-called continuum or toolbox theory Lehman advocated actually did contain within it sublevels of rankings. Stein got Lehman to admit that not all levels of force are equivalent, and responding to a minor threat with lethal force was not okay.
Most importantly, the jury was shown the four correct ways to holster a Taser. At the time, BART cops were allowed to keep a Taser in a drop-leg holster on their dominant side and pull it with their dominant hand. Or they could hold their Taser at their waist in their duty belt on their dominant side, positioned in a way where it could only be pulled out with their non-dominant hand. As a third option, cops could hold their Tasers on their non-dominant side and pull their Tasers in a “cross-draw” fashion so their dominant hand had to reach across their body to pull it out. Lastly, cops could holster Tasers on their non-dominant with a non-dominant hand release. So many options, and every cop could choose what worked best for them. But ultimately, the configuration was meant to decrease any kind of weapon confusion like the kind the defense claimed Mehserle ran into. And the prosecutor made sure the jury understood that.
Stein also underlined the fact that the X26 Taser Mehserle was using that night looked nothing like his gun. In fact, the X26 was 60 percent lighter than its predecessor, the M26. The X26 was a neon yellow, plastic thing, almost toylike with its light weight, buttons and LED screens. That night, Mehserle, who is right-handed, had his Taser holstered on his non-dominant left side so he could use a cross-draw pull. Stein made sure the jury knew that this configuration was explicitly suggested by the Taser manufacturer to decrease the likelihood that a cop would ever confuse their gun for a Taser.
Wednesday marked day two of ex-BART cop Johannes Mehserle’s defense after the prosecution rested its case on Monday. Court resumes again today, and is scheduled to wrap up by next week.
Oscar Grant Trial: Prosecution Pokes Holes in BART Cop’s Story
originally posted by Julianne Ong Hing for RaceWire [click here]
Jun 18th
UPDATE 4:04pm ESTEx-BART cop Tony Pirone was called up to the witness stand this morning. Stein has gotten Pirone to admit that the four people Pirone pulled off the BART train that night were not a real threat, and that if they were a real threat, Pirone’s actions that night didn’t indicate that they were. Pirone, however, is a much more obstinate witness than Domenici, much less prone to being caught oversharing or letting his nerves show.
…………………….
Yesterday was productive for the prosecution, now in its fifth day of presenting the case. Alameda County Assistant District Attorney David Stein made real progress in challenging the defense’s narrative that Oscar Grant and the other men on the platform that night were difficult to control and that the use of force on the police’s part was necessary and justified.
The day’s real drama started just before lunch. Because Stein hasn’t released his witness list to the public and both sides have been gag ordered by Judge Robert Perry, it’s hard to know who’ll be called up to the stand on any given day. Yesterday, it turned out to be Marysol Domenici, a fired BART cop who was one of the first to respond to the call at the Fruitvale BART station that led to the shooting of Oscar Grant on New Year’s Day 2009.
Domenici is the person who famously said during a preliminary hearing in 2009 that Oscar Grant would still be alive if he and his friends had just listened to the orders they were given by BART cops that night. Under lengthy questioning yesterday, she jousted with Stein in an effort to hold up that assertion.
“I think it was fairly obvious that she continued to evade questioning,” Cephus Johnson, Oscar Grant’s uncle told ColorLines after court adjourned for the day. “She would see things in the videos that we did not see, and did not remember things that had actually occurred. That in itself leads me to believe that what she is saying is fabricated.”
As her testimony began, it quickly became apparent that Domenici, who was just fired from the BART police force in March, was going to be a tough witness. Despite three sworn statements she’d given after the night Grant was killed, multiple videos of the incident and her own patchy memories, it was hard to get any information about the night from her.
“Did you ever attempt to exaggerate the conduct of the people on the platform to make it appear that officers were in more danger than they were to justify the shooting of Grant by Johannes Mehserle?” asked Stein. Domenici said she had not.
But over the course of four hours of stop and go questions, Stein was able to poke holes in Domenici’s claims that the men on the platform that night were hard to control.
Stein was able to prove by showing eyewitnesses’ cell phone videos from that night that Oscar Grant and his friends were compliant when Domenici was dealing with them and did not resist her orders. Stein highlighted a frame of the video that showed Grant raising his arm to hold back his friend Jackie Bryson during Bryson’s interactions with Domenici.
Stein also was able to show that contrary to Domenici’s testimony that when she arrived on the BART train platform there were “forty to fifty people” streaming out of the open train doors onto the platform, there were in fact none on the platform when she arrived. “You don’t see what I saw though,” Domenici said. “This [BART surveillance] video doesn’t show what I saw. People standing inside the train … I think of the train as an extension of the platform.”
Multiple times, Stein would ask her to visually confirm that the video he was about to play referred to a period of time she had just been speaking about, and Domenici, flustered and nervous, would instead rush to explain her motivations and the reasons for her actions in that moment, forgetting the question altogether. Once, Stein read Domenici a selection from the transcript of one of her sworn statements and asked Domenici if that was true to her memories, and Domenici said: “Well, if it’s in there then I guess it is.”
Up until today, it seemed as if the Michael Rains-led defense team of Johannes Mehserle had been dominating the court proceedings. On Tuesday during his cross-examinations, Rains had been able to sweep some of Stein’s witnesses away from him by making compelling arguments for why Oscar Grant’s death, while unfortunate and tragic, was purely accidental.
Between the two of them–Stein, the Alameda County ADA, and Rains, the former attorney for Barry Bonds–Rains is the much more dynamic actor. He’ll gesticulate wildly, use poetic language, take big strides around the courtroom, demonstrate maneuvers–the proper way to pull out a gun, for example. But David Stein keeps his language plain, his arms at his side, his tone of voice calm and gentle, and stays behind the designated podium.
Yesterday morning the prosecution wrapped up expert testimony from Sgt. Eugene Wong, a BART training officer, and Sean McCann, a former Berkeley police officer who has taught defensive tactics to police officers and David Chlebowski, a BART police patrol sargeant. Chlebowski confirmed dates of multiple trainings Mehserle had received in how to properly handle his gun, a Sig Sauer p226.
The morning’s big surprise came when, during cross-examination, Rains brought up the fact that McCann himself had been involved in an incident as a Berkeley cop when he’d unknowingly pulled his gun on a suspect. David Stein was able to recover during his re-direct, but just barely, by proving that the circumstances were very different: McCann was a lone officer responding to a dispatcher’s call about a violent felony. He ended up having to chase a man down an alley, where they fought before McCann realized he’d drawn his gun on his suspect.
Unlike Mehserle though, McCann didn’t shoot. Court resumes tomorrow.
Oscar Grant Trial: Fired BART Cop Pirone May Testify
originally posted by Julianne Hing for RaceWire [click here]
Jun 16th
The trial of Bart cop Johannes Mehserle, who’s accused of fatally shooting 22-year-old Oscar Grant in 2009, took a day off today because California is broke and has to accommodate statewide furloughs. Family, jurors and legal teams took the day to recharge for Thursday, when it’s rumored that ex-BART cop Tony Pirone may testify.
Pirone was the BART police officer who had his knee pressed on Grant’s back when Mehserle shot him. Pirone can be seen in multiple videos appearing to shove Grant against a wall right before he’s pulled away from the wall and pushed onto his stomach. Mehserle’s attorney, Michael Rains, said in his opening statements that Pirone was an aggressive officer, shouting profanities and roughing people up unnecessarily.
Prior to the beginning of the trial though, Rains sought to have an exchange between Pirone and Grant excluded from the trial. According to Rains’s motion, Grant called Pirone a “bitch ass n—-r” and Pirone, a white man, threw the racial slur back at Grant several times. Rains felt that allowing jurors to hear about that exchange would influence their perceptions of Mehserle and of cops in general. Rains also thought that bringing up the exchange could introduce race into a court case that “is not about race.” Judge Robert Perry denied Rains’s motion.
Both the defense and prosecution will likely treat Pirone harshly. Prosecutor David Stein will push hard to show that Pirone’s conduct could provide clues into Mehserle’s mindset. It’s reported that Mehserle looked up to Pirone like a “big brother.” Rains will aggressively question Pirone to provide a foil to Mehserle’s conduct that night. So far, no one has testified to hearing Mehserle shout racial slurs at people that night. Rains will have to show that Pirone was an aggressive cop with behavior problems that Mehserle did not share.
BART fired Pirone in April, several weeks after firing Marysol Domenici, another BART cop who was involved in the shooting that night.
Judge Perry has issued gag orders against both the prosecution and defense, but only the defense’s witness list has been released to the public, a secretive move that’s buoying hopes among trial observers that Stein has some amazing tricks up his sleeve–or important witnesses to protect.
Federal Appeals Court Upholds Day Labor Ban
originally posted by Michelle Chen for RaceWire [click here]
Jun 15th
The courts have delivered a mixed bag for immigrants in recent days. The Supreme Court issued a breakthrough decision for immigrants yesterday, restoring some judicial discretion to the deportation process. But in California, a federal appeals court upheld a local statute last week that essentially criminalizes the day labor market.
The law at the center of the case, Comite de Jornalers de Redondo Beach v. City of Redondo Beach, makes it “unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle.” It is also illegal to “stop, park or stand a motor vehicle on a street or highway” in order to negotiate work from someone in the car.
Advocates for California’s roughly 40,000 day laborers challenged the ordinance as an arbitrary encroachment on the workers’ First Amendment rights. The court countered that the statute “does not impose limitations based on disagreement with the message’s content,” and that it is “aimed at uniquely disruptive activities that cause traffic congestion.” Got that? It’s about traffic, not immigrant workers.
The statute parallels many other state and local laws, including Arizona’s SB 1070 and similarly noxious initiatives on Long Island, that attempt to criminalize undocumented immigrants and shift the job of immigration enforcement from federal to local hands.
Civil liberties groups argue these restrictions violate both constitutional and human rights law. The New York Civil Liberties Union legislative counsel Udi Ofer’s testified in 2007 before the U.N. Special Rapporteour on the Human Rights of Migrants:
[C]onstitutional protections, such as those contained in the First Amendment, apply to citizens and non-citizens alike For example, courts have long recognized that individuals have a right to solicit employment in public spaces. Yet for the past year, municipalities have attempted to prohibit immigrant day laborers from congregating along roadways for the purpose of finding employment. Lawmakers appear to care little about the constitutional deficiencies contained in their legislation, and instead turn responsibility over to the courts to determine whether legislation is appropriate, and in the process waste precious government resources when the courts eventually strike down such legislation.
Following the Redondo Beach decision, day labor advocates and local workers vowed to resume the legal battle. “Day laborers of the area have actively participated and organized to have their rights respected,” they said in a statement. “Unfortunately, this fight will continue.”
The legal goosestepping around these ordinances will likely grow more elaborate as rights groups take aim at Arizona’s new anti-immigrant legislation. SB 1070’s two-pronged assault makes it illegal for an undocumented immigrant to “knowingly apply for work [or] solicit work in a public place.” The question is not just free speech but whether the state can enforce immigration laws by regulating public conduct. Steven Schwinn at Constitutional Law Prof Blog notes that on top of the free-speech issue, “the Arizona law sweeps far more broadly than the Redondo Beach ordinance: It applies to any ‘public place,’ not just streets and sidewalks.”
But the bigger test–previewed in a dissenting judge’s footnote–is the reach of the state in curtailing immigrants’ rights: “The First Amendment protects individuals, regardless of their immigration status.” That footnote could form the basis of a major constitutional debate on who has the right to stand, speak and struggle to make a living on our streets.
Unanimous Supreme Court Narrows Deportation Pipeline
originally posted by Seth Freed Wessler for RaceWire [click here]
Jun 14th
In a hugely significant unanimous decision Monday, the Supreme Court ruled that a documented immigrant convicted of two minor drug-possession crimes will not face mandatory deportation. The ruling could drastically alter implementation of a controversial 1996 law that limited discretion for immigration judges and helped drive rising deportation numbers.
Plaintiff Jose Angel Carachuri-Rosendo had come to the U.S. in 1983, when he was just 5 years old, and had become a permanent resident. A lower court ruled that he was subject to mandatory deportation under the 1996 law as a result of two minor drug-possession offenses, one for marijuana and the other for a single tablet of Xanax, an anti-anxiety prescription drug often used recreationally. Monday’s Supreme Court decision overturns that ruling and, in doing so, gives immigration judges the discretion to weigh the unique factors in many more deportation cases.
Carachuri-Rosendo, who is married to a U.S. citizen and has a U.S. citizen child, would have been one of close to 100,000 non-citizens deported annually as a result of criminal convictions (rather than for civil visa violations). The majority of those 100,000 are deported as a result of the 1996 immigration bill, which created a new category of crimes–called “aggravated felonies” in immigration nomenclature–that trigger mandatory deportation. Aggravated felonies, however, include convictions that are considered neither aggravated, nor felonies in normal criminal law. And it’s believed that the bulk of those deported for them are permanent residents like Carachuri-Rosendo.
As I reported last year in the Colorlines investigation “Torn Apart”:
Before 1996, immigrants convicted of crimes served their time in prison and then could petition a judge to let them stay in the U.S. In most cases, judges held the power to weigh the many factors in a person’s case, including how long a person had been in the country, if they had partners and children, if they were committed to turning their lives around. The system led to the deportation of tens of thousands of people each year, but for many, relief was available.
In 1996, immigration courts were suddenly stripped of the power to consider a person’s full situation. It no longer mattered that they had children or had been in the U.S. almost all their lives as legal permanent residents. For immigrants found guilty of crime, deportation became the mandatory result of their conviction.
Now, anyone who is not a citizen can be deported even if convicted of a relatively minor misdemeanor and even if it happened many years before. By broadening the number of crimes that trigger mandatory deportation—called “aggravated felonies” in immigration nomenclature—the 1996 laws has pushed hundreds of thousands of immigrants who have already served time in prison into detention and deportation.
Today’s decision shrinks the breadth of the aggravated felony category and restores some discretion to immigration judges when facing cases involving minor crimes.
In his decision, retiring Justice John Paul Stevens writes, “We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an ‘aggrevated felony’.”
At the very least, the decision brings some semblance of linguistic consistency to the law. More importantly, “Carachuri-Rosendo, and others in his position, may now seek cancellation of removal, and thereby avoid the harsh consequence of mandatory removal,” Justice Stevens wrote.