New York City police stopped 203,500 people in the first three months of this year. This is a record high for the city’s “Stop, Question, Frisk” program which police credit with decreasing the number of homicides in the city. Last year there were 685,724 stop-and-frisk encounters in the city. Only 5 percent of the stops in the first three months of the year led to arrests and 5 percent more led to citations for infractions.

One of the problems with the program is that it targets minorities. Of those stopped this year 54 percent of the people stopped were black, 33 percent were Hispanic, 9 percent were white and 3 percent were Asian. While 4.7 percent of the population are African American men between the ages of 14 and 24 they account for 41.6 percent of the stops last year.

Another problem with the program is its questionable legality. While a police officer can have a casual conversation with anyone who consents to have a conversation with the officer, in order to stop a person the officer must have a reasonable belief that a crime was committed and that the person was involved in the crime. To frisk an individual the officer must also have a reasonable belief that the person has a weapon. Without a reasonable belief of involvement in a crime or possession of a weapon any weapons found can be suppressed and inadmissable in court. But there is no punishment for officers who commit illegal searches and seizures. Considering that only ten percent of those stopped are arrested or cited it can be presumed that the vast majority of the stops and frisks are illegal. The result of these stops and risks are not only that the personal liberty of individuals are severely infringed upon but that the citizenry, particularly racial minorities lose faith in our police and our criminal justice system.

Raymond Kelly has a tough job. He’s the New York City police commissioner and he has to keep explaining why his officers keep showing up in court and I don’t mean as witnesses. Last week eight of them were charged with gun smuggling and Friday sixteen were charged with fixing traffic tickets.

There is no evidence that any of the sixteen received any money for any of their actions. Primarily they were getting tickets removed from court files for friends and relatives. The general pattern was that an officer would be approached by a friend. Then the officer would call an officer who had access to the court files or to an officer who knew someone who had access to the files and would ask that the ticket be removed.

The investigation uncovered 800 fixed tickets. The DA charged 300. Many cases included a number of officers. Officer Eugene P. O’Reilly was charged in 250 cases and other officers were charges in over 100 cases.

This has not been a good week for police officers. Yesterday we discussed the denial of an appeal of an officer in Memphis who was sentenced to life plus 255 years for setting up drug deals. He then pretended to arrest the seller while he stole the drugs and money. Today we learn of the arrest of twelve people including eight active duty and retired New York City police officers who bought illegal weapons in New Jersey and transported them to New York.

They are accused of smuggling 20 firearms including three M-16 rifles, a shotgun and 16 handguns across state lines from New Jersey to New York. Most of the weapons had obliterated or altered serial numbers.

In addition the officers are charged with interstate transportation of stolen cigarettes and slot machines. The street value of the smuggled goods exceeded one million dollars.

The officers got the merchandise from an undercover officer in New Jersey. Prior to giving the guns to the officers the FBI made them inoperable but the officers did not know that.

New York mayor, Michael Bloomberg is leading a nationwide movement to remove illegal guns from the streets. It is called Mayors Against Illegal Guns and 600 mayors have joined the effort.

Ellis Wood was arrested on allegations that he hired Rasheen Harry (“Harry”) to kill Carlisle Hall (“Hall”). Wood believed that Hall raped Wood’s girlfriend, Nisha Bernard (“Bernard”). He was interrogated a number of times and kept in the police station over night.

After a final interrogation he was asked if they could videotape his statement. He responded: “I think I should get a lawyer.” New York Detective Charles Arnao (“Arnao”) gave him a phone and left the room. When the detective came back Wood appeared to be finishing a friendly conversation. Arnao had another officer bring video equipment and read Wood his Miranda rights before videotaping an interrogation.

At trial, on appeal, and in his writ of habeas corpus before the Second Circuit, Wood raised Miranda questions. Both the appellate courts and the United States District Court found the admission of the video to be a violation of Wood’s right to counsel, they found the admission to be harmless error. However, the Second Circuit found the video had substantial and injurious effect on the jury’s verdict and remanded the case for either retrial or dismissal.

After an arrestee unequivocally requests an attorney, a police officer must immediately terminate the interrogation and it cannot be restarted until either the arrestee has an attorney present or the arrestee initiates the conversation.The Second Circuit, like the District Court and the new York state appellate courts, found, “I think I should get a lawyer.” to be an unequivocal request. The statement does not show any doubt about the need for a lawyer nor does he question his decision. Thus the violation of Miranda is clear.

Perhaps a little less clear is whether the violation is harmless error. To determine whether the admission of the evidence was harmless the court looks at the importance of the evidence and the strength of the prosecution’s case. The prosecution had only two witnesses, Harry and Bernard. Harry had been convicted of the murder and was looking for a shortened sentence. He had a long rap sheet and he is subject to strenuous cross examination. By the time of trial Bernard had ended her tumultuous relationship with Wood. Not only was she looking for revenge but she was subject to deportation. As a result the government’s case was not very credible. The only thing that made it believable was the videotape which corroborated Harry’s testimony. The Second Circuit found that without the videotape Wood may have been found innocent.

Thus the videotape was not only important to the government’s case but it buffered an otherwise weak case. Furthermore, the government found the videotape to be important. The U. S. Attorney repeatedly brought the videotape up during closing and told the jury that they should pay attention to the videotape to support the conviction.

Ahmed Khalfan Ghailani the first Guantanamo detainee to be tried civilly was sentenced to life in prison yesterday after a trial on charges stemming from the bombing of the 1998 U.S. embassies in Tanzania and Kenya that killed 224 people by U. S. District Judge
Lewis Kaplan. A New York jury convicted him of one count of conspiracy to damage or destroy U.S. property and found him not guilty on 284 counts of murder and conspiracy.

Ghailani was accused of buying gas tanks and a truck used in the embassy attacks. He did not actually participate in the attack. He flew to Pakistan the day before the attack. ¹After the bombing he worked as a driver and a bodyguard for Osama Bin Laden.

The life sentence was not unexpected. The judge has said that he thought the government was the victim of a lenient jury. While some have questioned the not guilty verdicts on the 284 murder and conspiracy charges, the truth of the matter is that the jury has spoken. The government did not prove its case on the remaining 284 counts beyond a reasonable doubt. Part of this is due to the suppression of evidence seized as a result of torture and the failure to Mirandize Ghailani prior to interrogating him. But this is the law which protects due process and prevents coerced self incrimination. Unlike those who are upset with the not guilty verdicts because they assumed guilt regardless of the facts, the important thing is that Ghailani got a fair trial.

The problem with the sentence, however, is that it does not take into consideration the fact that he was found not guilty on 284 out of 285 counts. Ghailani would have gotten the same sentence if he had been found guilty on all of the counts. While the judge may think that he is guilty on all counts the jury only convicted on only one and a lesser sentence is appropriate based on the sole conviction of a relatively minor count.

Yesterday, we looked at racial disparities in arrests for marijuana possession in California. Of course most drug arrests are based upon some type of search. There are three types of contacts between police and citizens. First there is the consensual contact in which both parties agree to the contact and can terminate it at any time. A search can only occur in a consensual if the citizen give knowing consent. In the second type of contact, the detention, the officer must have a reasonable suspicion of criminal activity in order to detain the person even for a short period of time and must also have a reasonable suspicion that the person is armed in order to frisk the outside clothing of the individual. In the third type of contact, the arrest the officer must have probable cause to believe that the individual violated the law in order to search the individual and the area within easy reach of the person.

Today we will look at a study done in New York for the Center for Constitutional Rights by Prof. Jeffrey A. Fagan of Columbia Law School. as part of their ongoing litigation over the New York Police Department’s continued use of questionable searches.

Between 2004 and 2009 the police searched 2.8 million people. ¹ During an earlier part of the litigation the city agreed to have officers complete forms providing justification for each search. This study looked at the forms completed by the officers.

In thirty per cent of the searches the police either lacked sufficient cause to complete the search or ignored important information allow Professor Fagan to decide whether or not the stop was legal. ²

In 150,000 stops where the officer used his/her discretion to make the stop without a citizen filing a police report or without prior investigation and where there was sufficient information to make a determination the search was illegal.

Professor Fagan found that the more African Americans in the neighborhood the more searches were performed. Two to three times as many searches occurred in neighborhoods having the most African Americans as in those neighborhoods having the least African Americans. In an eight block African American neighborhood in Brownsville, Brooklyn, thirteen times more searches were performed than the average for the city as a whole. According to an article in the New York Times, “force was 14 percent more likely to be used in stops of blacks and 9.3 percent more likely for Hispanics, compared with white suspects. ” But even in white and mixed neighborhoods African Americans were more likely to be searched.

One of the justifications given by the police for the searches is that they help get guns off the street. But guns were found in only 0.15 per cent of all searches and they were more likely to be found in searches of whites than in searches of either African Americans or Hispanics.

Furthermore if violations of the law were found during the searches African Americans were 31 per cent more likely to be arrested while white were given citations.

The statistics are shocking. Human Rights Watch reported in 2000 that in seven states 80 to 90 percent of those sent to prison for drug offenses were African American. ¹ In at least fifteen states African Americans were sent to prison from twenty to fifty-seven times as often as white men. In 2000 twenty-six times as many African Americans were sent to prison for drug offenses as in 1983. Likewise the number of Latinos sent to prison increased by 22 times between 1983 and 2000. While the majority of drug users and drug dealers in this country are white over three quarters of those sent to prison are African American and Latino.

In another study published in 2000 white students used cocaine seven times as often as African American students, used crack eight times as often, and used heroin seven times as often. White youth between 12 and 17 are a third more likely to have sold illegal drugs than African American youth. Yet African American Americans are more likely to be prosecuted, convicted and imprisoned.

Among youth who have never been sent to prison, African American are more than six times as likely to be sent to prison for identical crimes. African Americans account for 16 per cent of all youth, 28 per cent of juvenile arrests, 35 per cent of juveniles tried in adult court and 58 per cent of juveniles sent to adult prisons.

Approximately 90 per cent of those sent to prison for drug crimes in Illinois are African American and 55 per cent of the African American men in Chicago have felony records. Nationwide one in three young African American men are either in prison or jail or on parole or probation.

Alexander says that the mass incarceration of the last thirty years serves the same function of racial control that slavery and Jim Crow held for prior generations. While it is no longer acceptable to openly express racist ideas, But the vast difference in drug arrests, prosecutions, and convictions between Whites and minority, despite evidence that Whites violate the law at least as often as African Americans and Latinos can leave no doubt that racism plays an important role in our criminal justice system.

While the laws appear to be colorblind, Alexander points out the tremendous degree of discretion granted to police and district attorneys in deciding which cases to arrest and prosecute. Recently there have been articles in press regarding the large database of citizens in New York City who have been stopped and who have either been frisked or consented to searches, some leading to arrest. The vast majority are African American or Latino. Consent searches or incidents where officers “stop and frisk” citizens happen nationwide. Despite the tremendous invasion of privacy that occurs when officers stop an individual without probable cause and often even without a reasonable suspicion, “consent” searches occur regularly and the police have the discretion to decide who to stop, search and frisk. The vast majority of times it is a young African American male who is stopped and searched. It is this discretion on who to stop and who to search that leads to the extraordinary increase in the number of African Americans who are incarcerated as part of the War on Drugs.

The lifelong effect of these convictions, as pointed out by Alexander is overwhelming. Once convicted of a felony the person can not get public housing or governmental benefits. They are unlikely to be able to get a job or schooling. Furthermore while incarcerated they learn skills to use in future crimes. The inability to get jobs affects their families and future generations.

Monday, Bob Herbert had some scary statistics in his New York Times column. He pointed out that that between 2004 and 2009 New York City police detained nearly three million people, frisking many of them and inputting their names into a massive computer file.

Less than fifteen percent of those searched had committed any crime or were in possession on of contraband. To compound the problem the vast majority of those searched were members of minorities. African Americans were stopped 1,444,559 times. Hispanics were stopped 843,817 times and whites were stopped only 287,218 times.

Were the stops legal? If the people stopped gave consent to the search they were legal. Why anyone would give consent I don’t know. I always tell clients to tell any police officer that attempts to search them that they are not giving consent. I doubt this stops many searches but maybe it makes an officer think twice before committing an illegal search. The Constitution is clear that people do not have to give consent. But many people, particularly aliens and minorities believe that if a police officer asks them for permission to search they have to give it.

Also those on parole or probation often have a search clause requiring them to permit peace officers to search them.

But in many other cases they are not legal unless the police have a reasonable suspicion that the person is involved in criminal behavior. This only permits a detention. To frisk the person the police must additionally have a reasonable suspicion that weapons will be found.

Individuals illegally searched have the right to sue but generally there is not enough money involved to find an attorney who will take the case.

The best solution would be to have all detentions and searches recorded on video tape. But this is rarely done. This could lead to disciplinary acts against police officers who illegally stop and frisk citizens. It would also make it easier to sue the officers and the police departments for illegal searches and detentions. It would, of course, also make it easier to convict those who are guilty and to justify legal searches. But police departments either don’t have the money for cameras or they are afraid of the outcome.

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Attorney General Eric Holder announced that five detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed will be tried in New york City and another five will be tried by military tribunals, including Abd al-Rahim al-Nashiri, who is accused of planning the bombing the U. S, navy destroyer, the USS Cole in Yemen.

The trial of Mohammed promises to be the biggest trial since the OJ trial. It carries risks and benefits for the United States. The difference between military tribunals and trials in the United States District Court is that a District Court trial must follow all of the rights found in the Bill of Rights, while the defendant’s rights are more limited in a trial before a military tribunal. Specifically the Supreme Court has ruled that testimony obtained by torture or coercion cannot be used in a court but it is permissible before the military tribunals.

Some family members of those who died and conservative Republicans argue that terrorists do not deserve the same rights as American citizens. But by giving terrorist the same rights as we give to others accused of crimes we exhibit our belief in our judicial system and our humanity. What if some of the detainees are innocent. We believe that people are innocent until proven guilty and none of the detainees have been proven guilty in a court of law. Certainly innocent people deserve the full benefit of our laws and the Bill of Rights.

But there are certainly risks involved. It may lead to further terrorist attacks on New York City. They may come on the day set for trial, the day the verdict comes down or on the date of sentencing. While the world may admire our Bill of Rights it will not admire the death penalty if the defendants are convicted. Some may say the death penalty is as barbaric as some of the terrorist acts. Furthermore the government will be rightly blamed for bringing Abd al-Rahim al-Nashiri to trial before the tribunal and not in a court of law. The use of testimony obtained through torture will and should be condemned. Furthermore, the use of the death penalty may make the detainees martyrs in many parts of the world and lead to revenge on the United States.