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Today's LACP news:

October 19, 2014


Washington, D.C.

Do the cases the FBI cites support encryption worries?

FBI Director James Comey says encrypting data stored on smartphones and computers could hurt criminal investigations

by Jack Gillum and Eric Tucker

WASHINGTON — The text messages captured a cover-up of unimaginable abuse: Parents had struck their toddler so often that they ultimately killed her. The child shook badly because we beat her, the father wrote, and the mother complained that their 2-year-old was the devil.

FBI Director James Comey says encrypting data stored on smartphones and computers could hurt criminal investigations, and evidence reviewed by The Associated Press shows that the child abuse case in Los Angeles from summer 2011 is a powerful, compelling argument. Prosecutors said the texts recovered by investigators prompted the parents to practically beg for a plea deal.

But at least three other examples the FBI director has cited are not so cut and dry. They are cases in which the authorities were tipped off — or even solved the crime — through means other than examining data they took from victims or suspects. While digital evidence may have aided those investigations, authorities nonetheless relied upon evidence beyond what was stored on a cell phone to nab a criminal or secure a conviction.

The struggle to justify the FBI's complaints about new phone encryption underscores the uphill fight facing the Obama administration in the wake of disclosures by former National Security Agency analyst Edward Snowden. Those revelations showed the government was collecting phone records and digital communications of millions not suspected of a crime.

It's not clear how the FBI hopes to untangle the encryption technology already rolled out to consumers, such as seeking new legislation on Capitol Hill restricting its use. Congress is expected to return to Washington in November to consider the USA Freedom Act, legislation aimed at reining in the NSA's surveillance capabilities and providing more transparency to secret proceedings in the Foreign Intelligence Surveillance Court.

The FBI chief on Thursday cited cases involving a sex-offending cab driver in Louisiana, an abusive mother in Los Angeles, a Kansas drug ring and a reckless driver in California, saying each showed the value of law enforcement's ability to read files on cell phones.

"Encryption isn't just a technical feature. It's a marketing pitch. But it will have very serious consequences for law enforcement and national security agencies at every level," Comey said, echoing earlier comments after Apple Inc. and Google Inc. said they would encrypt their phones by default.

The government's concerns may be directed in part toward Apple's iMessage platform, which offers end-to-end encrypted text messages, unlike traditional SMS messages. That encryption likely means the only way for police to read those messages is by obtaining a user's iPhone. Apple has sold hundreds of millions of devices that use iMessage.

Most examples the FBI director cited showed that evidence extracted from phones was, at best, supplementary.

Comey pointed to a hit-and-run driver in Sacramento, California, who was convicted of second-degree murder in a 2012 collision that killed a man and four dogs, saying, "GPS data placed the driver at the scene of the accident and revealed that he had fled California shortly thereafter."

Defense lawyer Michael Long, however, recalled that a side mirror found at the scene of the crash — taken as evidence to a car dealership — was an initial clue that led investigators to identify the type of vehicle involved. More breaks came with tips from eyewitness accounts and anonymous tips that placed Paul William Walden at the collision scene.

Walden was arrested coming out of his driveway and admitted being present at the collision, a damning admission presented to the jury. With access to his phone, Long said, investigators subpoenaed records from the cell service provider and used cell tower location data to place him near the scene — records that police can routinely obtain even if they don't physically possess a person's phone.

"They wouldn't have had his cell phone until they had Paul," Long said. "The cell phone technology was very helpful for them once they had Paul and they had his phone and his records to be able to piece together his trail across the country.

"It helped them convict Paul," he added, "but it didn't help them capture Paul." Walden is serving a sentence of 25 years to life.

Another case involved a heroin trafficking organization in Kansas City, Kansas, whose drug-dealing resulted in multiple drug overdoses.

Court filings show that while the suspects arranged orders using phones they discarded every few weeks, investigators constructed their prosecutions around months of undercover drug purchases involving confidential informants — a decades-old, more conventional law enforcement strategy.

Branden Bell, a lawyer for Verdale Handy, of Kansas City, who was convicted of attempted murder of a witness and multiple drug-dealing crimes, said he didn't recall electronic evidence factoring in the prosecution of his client.

"The government's evidence was a number of people who allegedly purchased narcotics from Mr. Handy and an eyewitness account of someone Mr. Handy attempted to murder," Bell said.

"I believe they followed a traditional investigative model, identifying lower-level distributors (and getting) their cooperation to identify and supply evidence against the suppliers above that," he said.

A fourth case involved a 12-year-old Louisiana boy killed by a sex-offender taxi driver who posed online as a young girl and sent the boy text messages.

Comey said the phones of the suspect and the victim were "instrumental in showing that the suspect enticed this child into his taxi," but according to authorities, they first zeroed in on the suspect after finding his cab parked suspiciously on a highway shoulder and determining through a license check that he was a registered sex offender. Physical evidence also connected the two after the driver was arrested, though authorities have said the electronic evidence did wind up being important for conviction.

In response to concerns Comey expressed earlier about phone encryption, The Associated Press asked the Justice Department more than two weeks ago about specific cases in which encryption might have hindered law enforcement. The FBI ultimately said Comey's speech this week was intended to provide those examples.

Police say there is sometimes great evidentiary value in text messages, particularly involving gang-related homicides where eyewitnesses are nearly nonexistent and assailants brag about their misdeeds. In the Los Angeles case, for instance, texts showed a pattern of abuse and cover-up among the girl's parents — even as their daughter was on life support.

"They knew those text messages couldn't have been put in front of a jury," said Los Angeles sheriff's Sgt. Richard Biddle, who investigated the case. "It showed how callous they were. They didn't care about the kid. They only cared about themselves."




In Their Own Words, Inmates Discuss the Riddle of Juvenile Justice

by Yunjiao Amy Li

The John Howard Association of Illinois, an independent prison watchdog and justice reform advocate, recently published a report introducing ways to reform the criminal justice system for youth prosecuted for serious offenses. This report takes a unique approach in asking the population in question about their experiences in the judicial system. Their responses were taken as a new framework in determining the fairness and effectiveness of the current system for youth prosecuted for serious crimes.

In past years JHA has worked to improve the criminal justice system's response to youths who are prosecuted as adults in Cook County, Ill. In this research process, JHA conducted in-depth interviews with six young people who were prosecuted and convicted of adult crimes when they were at ages 15, 16 and 17. Those interviewed are currently still incarcerated in the Illinois Department of Corrections, serving sentences from 12 to 20 years.

“What's powerful about the kids' story was that no one was denying that they did something wrong,” said John Maki, executive director of JHA of Illinois. “They just wanted accountability and wanted a system that was accountable.”

The names of the six youths interviewed were changed to protect their privacy. But in their pseudonyms, we hear the real accounts of those whom we have decided to incarcerate in the adult justice system.

Travis is a 17-year-old African-American male youth serving a 15-year sentence for armed robbery in an adult prison in southern Illinois. He was intermittently raised by his aunt because his parents were incarcerated. At age 16, Travis was automatically charged as an adult with armed robbery with firearm, but he pled guilty to the lesser offense. Because of instability at home with no one to take care of him, Travis said by age 12 he was hanging out with a gang, which for him was just a natural part of growing up in his neighborhood.

When discussing the effectiveness of our criminal justice system, Maki said that on a basic level, an effective system is one that is fair and one that people can trust. But trust is hard to establish between the police and various Chicago communities.

“They took my whole family from me — mother, father, uncle — and locked them up,” said Travis when explaining his deep-felt hatred and distrust for the police.

For kids of age 17 or 18, there is gap that needs to be addressed in terms of their needs in the criminal justice system. According to Maki, there is not much to be gained for them in the juvenile justice system and they are too young for the adult system. In other words, youths who fit into this age category are developmentally distinct and there should be more specific policy changes to address those who are stuck in between two worlds.

After his sentence, Travis was sent to the Northern Reception and Classification Center at Stateville prison, where he lived in segregation conditions for two months. This meant he was locked in his cell for 23 hours a day and was not allowed any family contact.

Reflecting on his time during incarceration Travis said, “If you lock people up and don't teach them something, it's a lose/lose situation.”

Looking beyond just the crimes committed by these youths, the report also points to an underlying civic issue that has to do with our society. For example, many of the youths interviewed explained how guns and violence were just a routine part of their lives growing up. In their world, where some have suffered abuse as a child and had no parents to take care of them, the kids turn to gangs simply “because they want a family.”

“We've looked to the justice system to solve what is essentially our civic system,” said Maki.

According to the study, many youths are unaware that they could be prosecuted as adults prior to their being prosecuted under Illinois' automatic transfer laws. Currently the American justice system separates juveniles from adults based on age and transfer. The majority of states end their juvenile jurisdiction at age 17, meaning once a youth turns 18, his or her case will be handled in the adult criminal justice system.

However, all states have laws that allow youths under the age of 18 to be transferred to adult court in certain cases. As the JHA report indicates, there are three kinds of statutory transfer mechanisms. First, there is the judicial waiver, which enables juvenile judges to waive jurisdiction over individual cases. Second, prosecutorial discretion laws specify certain kinds of cases over which prosecutors have the sole power to decide where to try the youth. Lastly, in automatic transfer or statutory exclusion laws, the criminal justice system is given an exclusive jurisdiction over certain kinds of cases that meet statutorily designated age and offense criteria.

In fact, automatic transfer is one of the main contentions about juvenile justice reform. In this case, older teens who have committed serious crimes were examined, and whether or not our system treats them fairly. One of the holdbacks in this area of policy reform ultimately may be perception.

Maki said there is a limitation to how we think about children, and people seem to have a hard time imagining that children can do horrible things.

“We magically transform them into adults so we don't have to think about it,” Maki said. “But it is a fake solution.”

The study found that the criminal justice system's responses were seen as “illegitimate, unequal, arbitrary, and racist from the eyes of young offenders,” and provided a four-step recommendation for policymakers to improve the current system.

(4 recommendations as written in the report)

Empower judges to determine whether serious young offenders should be tried in juvenile or criminal court, regardless of the crime they are accused of committing.

Provide young offenders with greater access to counsel during police encounters and pre-trial custody.

Ensure that attorneys and judges who deal with this population are trained in adolescent brain development and how to effectively communicate with young people.

Establish separate correctional facilities, treatment programs and a sentencing scheme that takes into account young offenders' mental immaturity and ongoing development.

Civil issues along with our justice system may have created a negative feedback loop that put certain populations of youths in a conflicting position. However, here the public is hearing what the youths have to say about their experiences with the justice system and how they think it can be improved. While policy reforms take time, reformers believe there are little steps public can take now to be headed in the right direction.

To read the JHA report, please visit the site: http://thejha.org/words




Collateral Consequence Laws: Harsh Add-Ons or Necessary Crime Deterrent

by Sanya Mansoor

Even when adult or juvenile inmates are freed, many remain shackled by laws that make it difficult for them to get welfare, vote, obtain a drivers license and find stable housing and employment. These laws are called collateral consequence laws — formal restrictions on a person following their conviction.

A recent report by William & Mary Assistant Professor Tracy Sohoni called “The Effect of Collateral Consequence Laws on State Rates of Returns to Prisons” explored whether these laws are effective deterrents to crime or simply add-on punishment. Sohoni hypothesizes that collateral consequence laws do more harm than good.

But at first, she was surprised by the data, which in most cases was lacking as she tried her theory on various laws.

Sohoni's research failed to find statically significant relationships between collateral consequence laws and state returns to prison, and if anything it suggested harsher laws decreased the rate of returns to prison.

But in specific instances where robust data was available — such as her evaluation of restricted access to Temporary Assistance for Needy Families (TANF) — she found subsequent increases in rates of returns to prison — precisely what she expected.

The report states about 70,000 people are released from prisons annually and roughly two-thirds are rearrested within three years of release. People who leave prison often find themselves back inside.

The U.S. government is taking steps to address re-entry for ex-offenders. Congress authorized $165 million for the Second Chance Act in 2008.

“Ex-convicts need structural opportunities. They need jobs,” Sohoni said, while acknowledging that lack of wide data and other factors make it impossible to draw absolute conclusions from the report. Still, the findings lend weight to advocates looking for less severe punishments, a rollback of the harsh laws from 20 and 30 years ago and the relaxation of laws that haunt inmates after release, often precluding them from re-entering society in any meaningful way.

“A lot of offenders come out and want to live a productive life but a lot of them find the opportunities just aren't there,” she said.

Several laws passed in the 1990s have made life much harder for ex-convicts. While some believe that is just fine — they deserve it for whatever crime they committed against society — the consequences were sometimes much more severe than expected.

Consider: Highway funds to states that didn't restrict former drug offenders' driver's licenses were reduced. Drug offenders were ineligible for loans, food stamps and cash assistance. They were cut off from programs like Temporary Assistance for Needy Families (TANF) and the Supplemental Nutrition Assistance Program (SNAP).

The report highlights how many collateral consequence laws seek to prevent crime. For example, restrictions on public housing for drug offenders can disrupt the expansive drug networks that develop there. Restrictions on employment could prevent people from misusing their position to commit further crimes. Suspending drivers' licenses of former drug convicts tries to restrict the possibility of driving under the influence.

But the report also finds problems with this rationale. For example, drug offenders shouldn't find it hard to become barbers, she said. But the restrictions are often imposed on broad categories of offending.

The report also notes that collateral consequence laws have often been called “invisible punishments” because they aren't broadly publicized, let alone stated as part of one's sentence in court — thus undermining the deterrent effect. Further, they operate outside the legal system. They are a reminder that serving time isn't punishment enough, which cripples their will to reintegrate into society, according to Sohoni.

So why should anyone — aside from the ex-convict — really care? The report explains that it is taxpayer money that pays to reimprison offenders and it is the communities of these reoffenders that take a huge hit.

These communities lose revenue when potentially contributing members are incarcerated. Offenders cycle through prisons and their respective communities and if they continue to commit crimes in the neighborhood crime rates soar, socioeconomic status plummets and residential stability falls.

Families of these ex-convicts also pay a price. Restrictions on employment often mean the returning offender can't provide income to the family or meet child support obligations. And drug-related convictions can be a basis for eviction for the offender along with anyone else in the same house. This means families risk losing access to housing if they let an ex-offender live with them — and in some cases families separate, tearing at the community fabric as they lose the ability to take care of each other.

For example, it becomes much harder to provide ex-convicts with a strong emotional support system. The study notes there is evidence that men who maintain strong family ties during imprisonment, and those who assume husband or parenting roles post-release, are more likely to have positive outcomes after they walk free.

The most extreme example seems to be in cases where mental illness — so rampant in jails in prisons in this country — are at play. For his part, Arthur Lurigio, a psychologist and professor at Loyola University Chicago, has developed a special program for offenders with mental illnesses. He worries about the impact collateral consequence laws have on the mentally ill.

“These are people that are not well equipped to navigate life effectively,” Lurigio said. “There are very few resources for them, their personal and social currency is already lacking and when you layer on top of that a criminal conviction — you've seriously disrupted their life and made it difficult for them to take care of themselves, even in the most basic ways.”

Lurigio said the most important things for mentally ill ex-offenders to have a smooth transition into society is housing and medication, and someone to ensure they're carrying medication.

“Many people don't have the insight to know they have the illness,” Lurigio said, “and so they need someone who helps with rehabilitation and has a supportive and regular presence in their life.”



Washington D.C.

From ICE

ICE showcases commitment to veterans at AUSA meeting

For three days this week, thousands of current and former United States military members, along with civilian employees, exhibitors and vendors descended upon Washington, D.C. for the 2014 Association of the United States Army (AUSA) Annual Meeting & Exposition.

The annual meeting, held at the Walter E. Washington Convention Center, is the largest land power exposition and professional development forum in North America. The event consists of presentations, panel discussions on pertinent military and national security subjects, workshops and important AUSA business meetings.

In continuing with its commitment to the military, specifically veterans, U.S. Immigration and Customs Enforcement (ICE) had a sprawling presence at AUSA in the U.S. Department of Homeland Security pavilion that was aimed to highlight its latest efforts both in recruiting and employing veterans and how it's integrated them not only in our law enforcement agencies components, but across ICE as a whole.

“Some of the best feedback we've gotten from attendees is about how much technology we use, especially in our Cyber Crimes Center and they are very appreciative of what we do for our nation's veterans,” said Joseph Arata, ICE's Strategic Recruitment chief. “We've highlighted a couple of the programs we've done for veterans which they think are pretty exciting and they're very pleased that the government agency is that committed to its nation's veterans.”

At its booth display, ICE highlighted the Human Exploitation Rescue Operative Child-Rescue Corps (HERO) program, Project iGuardian and the Operation Predator app. The HERO Program is designed for wounded, injured and ill Special Operations Forces to receive training in high-tech computer forensics and law enforcement skills, to assist federal agents in the fight against online child sexual exploitation.

For many veterans who were in attendance at ASUA, these initiatives are welcome news as many are looking to make the transition from active duty to federal, state or local law enforcement careers.

“The HERO program does two things that are unique when it comes to veterans. One is that it gives them employable skills, but it also gives them employment,” Arata said. “ICE was lucky enough to be able to employ our first class [last year] and we are now finding incredible employment opportunities not just within ICE, but with other law enforcement agencies for the second class.”

AUSA concluded Wednesday.



From the FBI

Color of Law -- Agent Exposes Civil Rights Crimes in Alabama Prison

There was never any dispute that Rocrast Mack, a 24-year-old serving time on drug charges in a state prison in Alabama, died at the hands of corrections officers in 2010. What wasn't immediately clear was how and why the inmate sustained a lethal beating.

What was known was this: On August 4, 2010, a female corrections officer confronted Mack in his bunk, accused him of inappropriate behavior, and struck him. Mack retaliated, the officer radioed for help, more officers arrived, and Mack was beaten in three separate prison locations over a 40-minute period. He died the next day from his injuries. Guards claimed Mack was fighting them throughout the ordeal and sustained his fatal injuries in a fall.

An investigator from Alabama's State Bureau of Investigation thought the stories didn't add up and called the FBI, which investigates cases of abuse of authority—or color of law—and other civil rights violations. When Special Agent Susan Hanson opened her case at the Ventress Correctional Facility, it was evident her biggest challenge would be getting to the truth.

“The injuries that caused Mack's death did not match up with the story the corrections officers were telling,” said Hanson, who works in the Dothan Resident Agency, a satellite office of the FBI's Mobile Division. Meanwhile, witness accounts were suspect, given the questionable reliability of the sources. “You could have 10 different inmates who were in the very same room and they would give you 10 different stories,” she added.

What did emerge was a portrait of a corrupt prison environment led by a heavy-handed guard—Lt. Michael Smith. Smith, the main subject in the investigation, held sway over corrections officers and inmates alike. A few guards privately acknowledged that Smith's history of intimidation could eventually land him in hot water. For Hanson, who conducted hundreds of interviews over nearly three years, the key to cracking the case was to find a sympathetic guard whose conscience carried more weight than his fear of Smith.

“It really was working with one of the officers, spending a lot of time with him, and telling him that the story just doesn't make sense. It cannot have happened that way,” Hanson said. The guard implicated Smith but never broke ranks from the original narrative—that their use of force was justified.

To build her case, Hanson and Special Agent William Beersdorf enlisted Mobile's Evidence Response Team (ERT) to take extensive photographs from witnesses' vantage points that could support or refute their claims. “That's where she was able to start separating fact from fiction,” said Beersdorf. Specialists were brought in from the FBI's Charlotte office to collect exact measurements and chart graphical representations of where each of the assaults occurred.

“Susan then could eliminate witnesses because of what they could or couldn't see,” said Bryan Myers, an ERT technician who made six trips to the prison during the course of the investigation. The Special Projects Unit at FBI Headquarters assembled an interactive blueprint of the prison that showed everyone's precise locations during the beatings. In the end, the evidence revealed how a cadre of guards, led by Smith, struck and kicked Mack so severely he died—and then conspired to cover it up.

“It was very helpful during trial,” said Hanson. Four officers were convicted last year on civil rights, obstruction of justice, and conspiracy charges and received prison terms—including Smith, who was sentenced to 30 years.

Hanson, who was named a finalist for the Service to America Medal by the Partnership for Public Service for bringing the guards to justice and exposing corruption in Alabama's prisons, said the case is still heartbreaking to her because Mack was in the care of officials who had been bestowed a public trust.

“He was serving his time, he was not a problem child, and he was beaten to death because of conduct that had gotten out of control,” she said.

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