Apple Battles for Your Privacy Rights

Just how important are your privacy rights? Some people say it shouldn’t matter when you have nothing to hide. I say all rights matter for everyone. (#allrightsmatter)

The Constitution and Bill of Rights exist to protect the citizen against unlawful intrusions by government, even when government may have a noble purpose. Chipping away at our rights is indeed a slippery slope and should not be undertaken lightly.

These past two weeks Apple has been in the forefront of protecting its customers’ privacy rights, and by extension, the rights of all citizens.

In a nutshell, the government has requested the assistance of Apple in breaking into the iPhone used by one of the San Bernardino killers. Because Apple did not comply with FBI requests, the government has sought a court order requiring compliance. You see, the phone has a passcode on the lock screen. Too many “wrong” entries will cause the phone to erase all data. The government wants to bypass this code and get to the data.

Some say it is nothing more than a business decision, but let’s look at what this decision really means. In a letter to all Apple owners, Tim Cooks outlines Apple’s concerns for security and privacy while stating that Apple has and will comply with all lawful court orders and subpoenas for data that it has, but this order extends beyond that and requires Apple to create a new version of its operating system that will include a means to bypass the security features. This is akin to creating a “master key” that will unlock all doors. This is what Apple is unwilling to do. Maybe it is a business decision, but it is also a decision based on principle and the preservation of privacy rights.

Houston Chronicle reporter Brian Rogers said it best:

If the police have a storage building they believe has evidence of a crime, but it’s locked, they can call a locksmith and try to get in. Maybe it goes fine or maybe the unlocking somehow ruins the evidence. Life’s not fair.

The government cannot call Masterlock and demand the company build a skeleton key that unlocks ALL of their locks and then hand it over to the police. Nope.

In today’s digital world, security is key. Security and passcodes are the “keys” to unlocking all our personal data. Just think of the data you store within your phone: bank accounts and financial information, passwords to other sites, medical information, and so much more. Creating a key or a bypass will certainly create a means for more hacking by not only the government but also by those who seek to harm us or steal our identities.

Critics of Apple’s position are quick to point out that Apple has “unlocked” secured phones in the past on many occasions. Apple disputes this fact even though they admit they have provided data in response to court orders. In either event, the critics fail to realize that since those previous actions, Apple has changed its software and created a more secure encrypted system that it can no longer bypass.

In its letter, Apple warns:

We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them.

Apple is not just a U.S. company. With markets throughout the world, compliance with American governments sets a dangerous precedent when dealing with other governments. If Apple complies here, will they be ordered to comply, by precedent, in China? In Europe? In North Korea? Do we want a “master key” in all their hands?

I know I don’t.

Not only is the government trying to access the San Bernardino phone, but also phones across the country. So while the government in California pleads for a “one time” access for “just one phone” their brethren are making the same requests across the nation. According to the Washington Post, the Justice Department is demanding Apple’s help in unlocking at least nine iPhones nationwide in addition to the phone used by one of the San Bernardino, attackers. In seeking Apple’s assistance in New York, Chicago, Los Angeles, San Francisco and Boston, it certainly appears the government is seeking to create its own special back door or master key to be used in investigations of all types around the nation. Government and its enforcers are claiming what they discover in any one case may lead them to additional discoveries of larger crimes.

While this may be true, what risk are we willing to assume? Once a master key is developed, we can be certain hackers around the world will be using it against us all.

I applaud Apple’s decision from both a business perspective and a preservation of rights perspective. I agree with Apple that the government is overreaching here. The government’s reach is akin to a trap door. As sacred as our homes are, would we allow the government to order a homebuilder to create a trap door that allows police inside at any time without our consent? If not, why is the phone any different? Better yet, should the government require banks to give the government a back door into our finances at the click of a button? If not, why our phones?

Interestingly, the tech world, including Apple’s biggest competitors, has sided with Apple. Mark Zuckerberg and Google’s Sundar Pichai joined Apple with statements about building secure products that protect privacy for all. They all say they will work within their means to assist law enforcement on valid legal orders, but they too draw the line at being required to enable device hacking. The fact that competitors have joined Apple speaks largely to preserving privacy rights for all citizens.

As for me, I’m willing to stand with Apple for the protection of my rights! And yours!

Counseling Avoided Judicial Sanctions for Illegal Bonds

Of course you remember the on-going Waco biker cases that made national attention when Judge Peterson set individual million-dollar bonds for over 170 accused. These extraordinarily high bonds essentially held all arrested for months with no way of making bond.

Not only were the bonds excessive, but they also violated the law. Bond is supposed to be individualized and simply to insure appearance at trial without being oppressive. In this case, complaints alleged not only a failure to set individualized and appropriate bonds but also improper public comments to the media.

In an interesting move, the State Commission on Judicial Conduct declined to sanction Judge Peterson after his unconstitutional setting of $1,000,000 bonds for all accused in the Twin Peaks biker shooting case. The interesting part though is that even without the sanction, the Commission ordered Peterson to appear and then attend counseling on criminal law and the ethics of setting bonds. The Commission indicated that the judge’s conduct was not necessarily appropriate but nonetheless they were exercising their discretion to dismiss the complaint.

We spoke with Clint Broden, an attorney involved in the case who made the judicial complaint:

“While disappointed the state commission on judicial conduct used its discretion not to sanction Peterson, it is important to note that it found Peterson’s actions not to be “appropriate” and counseled him on areas of criminal procedure and judicial ethics. Peterson was required to appear in front of the commission on February 11, 2016 for counseling. We had hoped the commission would take a stronger stance, however, this is certainly not a vindication for Peterson’s actions.”
Clint Broden

Even though the Commission did not sanction or discipline Judge Peterson, at least they took this opportunity to provide some counseling on how he might better perform his job.

Bonds are a large issue here in Harris County as well. The Harris County judiciary does not set individualized bonds either. Instead, they have relied on a “bond schedule.” A bond schedule is a basic list of offense levels and a corresponding bond amount. This is a problem and has been frowned upon by the Supreme Court as not being tied to a particular defendant and his particular flight risk. Instead, it arbitrarily assigns a value based on the level of offense.

Even the United States government agrees: bond schedules violate the Constitution and law. About a year ago, the Department of Justice issued a Statement of Interest in Varden v. City of Clanton in U.S. District Court. In that statement, the DOJ is clear:

“Incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment. … It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.”

The Statement of Interest also makes clear that “[b]y using a predetermined schedule for bail amounts based solely on the charges a defendant faces, these [bond] schemes do not properly account for other important factors, such as the defendant’s potential dangerousness or risk of flight.”

However, we still see the Harris County judiciary blindly setting arbitrary bond amounts by following a written schedule. This practice is no better than that of Judge Peterson. Failing to consider the appropriateness of a bond for a particular defendant is a clear violation of the law and we should expect better.

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Bundle of Joy

With little notice and early timing, little Miss Jordan has disrupted this week’s show! Such is the schedule of an all-volunteer show.

We are excited to announce our host, Jimmy Ardoin, welcomed a new bundle of joy into his life in lieu of hosting this week’s Reasonable Doubt. Baby and family are doing great, and we couldn’t be more thrilled for Jimmy.

No worries, we will be back next week with more news and insight into our criminal justice system and other news.

Innocence Eludes Justice

2015 set a new record for exonerations: 149 people who were serving time in prison for crimes they didn’t commit were finally cleared and released from prison. This startling fact comes from a new report (available below) just released from the National Registry of Exonerations, a project of the University of Michigan Law School. Each of those 149 innocent citizens spent an average of 15 years in prison.

exonerationsWhy does innocence elude the criminal justice system?

At some point we, as a society, must start asking how and why so many innocent citizens are being wrongfully convicted.

  • 27 of those cleared in 2015 even falsely confessed to their crimes. Those who entered false confessions were largely young, immature, or mentally handicapped.
  • Official misconduct by police or prosecutors lead to 65 of the exonerations for 2015, another record number.
  • 65 exonerees actually entered guilty pleas in court for crimes they didn’t commit.
  • And a record number of 75 citizens were cleared of convictions for conduct that did not even amount to a criminal act.

It used to be that exonerations were rare. We know that the overwhelming majority of appeals are denied by upholding convictions. Sadly, exonerations are becoming anything but rare. Even more sad is the fact that Texas leads all other states by claiming 54 of those exonerations. So, I ask you, “why are we convicting so many innocent people?” Let’s break this down by category:

False Confessions

Do you believe someone would confess to a crime they didn’t commit? If you said no, these staggering numbers suggest otherwise. False confessions can and do happen, with some regularity. Even one is too many.

In a capital murder case I defended some years ago, the co-defendant entered a false confession claiming he and his brother (my client) committed both a robbery and a robbery turned homicide. My client and his brother, to be clear, were proven factually innocent with no involvement whatsoever in the robbery or murder; they were not even near the scenes of the crimes and did not know any of the true actors who committed these offenses. However, with a crime stoppers tip implicating the brothers, the homicide investigators dug in and focused solely on the brothers, ignoring other potential leads. This is often referred to a “tunnel vision” where the investigator sets out to prove the lead. The investigator usually does not have an evil motive and is not setting out to frame an innocent person, but the “lead” becomes the focus and hours are spent trying to shore-up the evidence to support the lead.

Ultimately, the investigators obtained a pocket warrant to arrest and question the brothers. Once the brothers were in custody, interrogations began. My client’s brother was mentally handicapped and was easily led, unintentionally, by the trained homicide officers. As the officers continued to ask questions which included essential facts, the brother began to parrot those facts back to the officers. (Much like Brendan Dassey’s “confession” in ‘Making a Murderer’, the Netflix docuseries.)

With a confession, police used a photo line-up in which a witness positively identified our client. Confession plus a positive identification turned into the filing of capital murder and aggravated robbery charges. During the year and a half that our client remained in custody, fortunately, we were able to prove the brothers’ innocence, the false confession, and identify the real killers.

This is not the only case in which I have personally defended against a false confession. So, yes, false confessions do exist and are more common than you might think.

Official Misconduct

Just take a look at the Texas cases exonerating Michael Morton and Anthony Graves for a taste of official misconduct by Texas prosecutors. In both cases, prosecutors withheld critical evidence which tended to show their innocence and point to the true criminal. Look also at the findings in the David Temple case in which Judge Gist cited at least 36 instances of prosecutorial misconduct by prosecutor Kelly Siegler. Read more about these cases and prosecutorial abuses here, here, and here.

In just one example of police misconduct, Harris County deputies falsely accused Salazar of the felony offense of attempting to disarm a peace officer. With that false accusation, prosecutors filed charges and proceeded to court. Ultimately, and luckily, video proved the officers had falsified the claim. How many dash cam videos and by-stander videos have you seen in the news lately that disprove officer claims? Too many.

Guilty Pleas

Why would someone plead guilty to a crime he didn’t commit? The answers are as varied as the defendants accused of crimes. Sometimes the evidence appears overwhelming and the defendant fears a greater punishment from a jury should he elect to proceed to trial. Sometimes the prosecutor will recognize weaknesses in his case and will offer “the deal you can’t refuse.” Sometimes the accused is being held in jail under a bond he cannot afford to make and thus is willing to plead guilty to anything that would get him released from jail (time served or a probation). In most of these cases, no one is trying to railroad an innocent person, yet prosecutors and/or defense lawyers fail to see the possibility that the accused is innocent.

I’ve explored this phenomenon before.

Conduct Not Equating to Criminal Conduct

You are probably now asking yourself, “how could someone be convicted of conduct that doesn’t amount to a crime?”

Well, sometimes it’s a simple as junk science. For example, in a number of arson cases, pseudo-experts opined, based on their review of the crime scene, that a particular defendant committed arson. Sometimes the defense fails to expose this pseudo-science expert; sometimes judges and juries believe the pseudo-expert even when the science is questionable. Jurors generally want to do the right thing and they start out believing police, prosecutors, and “experts” are inherently trustworthy and they fail to discount that evidence.

Look no further than the Cameron Todd Willingham case wherein arson experts coupled with new advances in fire science show that original arson “experts” (those pseudo-experts) were using flawed theories related to burn patterns and accelerants.

Additionally, this past year, 51 individuals here in Harris County were cleared after they plead guilty to low-level drug cases in which lab test results ultimately revealed the substance possessed was not an illegal substance, thus there was no crime committed.

More information in the news:
NBC News: Jailed But Innocent, February 3, 2016
The Dallas Morning News: 2015 Exonerations Set Record, February 2, 2016
Houston Press: Harris County Leads Nation in Exonerations Again, February 3, 2016

While the National Registry of Exonerations report is making news, a less publicized press release and white paper was also released this week by the Center For Prosecutor Integrity in Maryland. This white paper focuses on wrongful convictions in sexual assault cases. It highlights the leading cause of wrongful conviction in these cases is mistaken identity. Rape victims can and do misidentify the perpetrator. They see suspects in line-ups or photo-spreads and select a suspect who closely matches the perpetrator. Additionally, false confessions are rarely overcome in the courtroom as juries find any sort of confession difficult to ignore. Lastly, the white paper identifies false accusations and perjury, often by the “complainant” lead to a significant number of wrongful convictions.

Summary

Now, you can see a wide variety of reasons our justice system, as great as it is, can and does fail. Innocent people are convicted and serve time for crimes they didn’t commit. We used to be concerned about this. As Benjamin Franklin once said,

“That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.”

Curing the faults in our system, we must return to the days where this maxim held true. Punishing the innocent is far worse than failing to punish the guilty. The presumption of innocence must be afforded the accused and only where the evidence proves guilt beyond a reasonable doubt should a guilty verdict be rendered. The burden is purposefully extraordinarily high to prevent the innocent from being convicted and condemned. Where there is a reasonable doubt, the juror’s duty is to acquit.

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Will the Change Be Real?

With the potential of a $4M prize over two years, Harris County officials seem motivated to change business as usual at the Harris County Criminal Justice Center. But, I have to ask, just how serious are they?

Harris County is one of 20 groups to submit a proposal in the Safety+Justice Challenge, offered through the MacArthur Foundation, in hopes of winning the prize to implement new policies and procedures for reducing local jail populations at each step in the criminal justice system. By tackling each phase or step, the overall goal is to curtail the over-incarceration of America.

Looking to these steps or phases (as outlined in their grant summary below), Harris County is largely stressing diversion opportunities, greater use of pre-trial supervision (supervision of those who are released on bond or personal recognizance), reducing jail stays through quicker diversion decisions and expanded pre-trial diversion options, and reducing the time between arrest and final disposition in felony cases (getting cases to trial faster).

In summarizing their plan, Harris County first notes that overall jail population has reduced since 2008, but for a surge in 2015. Interestingly, 2014 and 2015 marks the return of the prosecution of “trace” cases: possession of a controlled substance cases wherein the “drug” is mostly not seen by the naked eye and cannot be measured quantitatively. (See Judge McSpadden’s criticism of these prosecutions as a huge factor in over-crowding.) These and other low-level, non-violent felony defendants amount for about 20% of the felony population in the jail.

With a large emphasis on diversion opportunities, it appears much of Harris County’s plan falls squarely on the District Attorney as the only entity authorized to offer and grant opportunities to be diverted from prosecution. Though we may disagree on some issues and policies, I applaud our District Attorney, Devon Anderson, for expanding diversion opportunities. She has created pre-arrest diversion for low-level first-offender marijuana offenders. She is expanding that program (First Chance Intervention) by forcing police agencies to offer the program and expanding the group who might qualify for such program. Additionally, she is extending diversion for low-level felony drug cases as well as theft cases. And finally, she is proposing diversion opportunities for the mentally ill in hopes of stressing treatment over punishment. While these options are included in the grant proposal, Devon Anderson has pledged to implement them whether or not the grant is received.

So, outside of the diversions offered by our District Attorney, what exactly are the courts and judges contributing towards solutions?

Apparently, they see pre-trial supervision as a means of lowering jail population. This means that citizens released either on bond or on their own personal recognizance (PR bond), will be supervised much like a person serving a probation. They will regularly report to a supervision officer, be subject to random drug testing, participation in court-ordered services, and other bond conditions. This is akin to being on probation before one has ever even been found guilty.

Additionally, the courts are proposing the addition of more courts to handle trials faster, thus decreasing the amount of time pre-trial detainees are held in custody.

And that’s about it. Unless I’m missing it, the courts are not proposing much more.

All-in-all, what does this mean for justice in Harris County? I guess it means we will start supervising more people pre-trial and getting cases to trial a little faster. And, it means Devon Anderson will be doing her part to divert as many low-risk offenders as possible from the system.

I know this particular grant is focused on reducing the over-incarceration of America, but when will we also get serious about justice. Justice is fairness. Justice is blind. Justice does not give the prosecutor a leg-up against the defense. Justice means having counsel available to the accused earlier and at the very start of criminal proceedings. Justice means individual assessments for bonds rather than an arbitrary schedule. Justice is so much larger than jail population. Let’s hope jail population is just the start in this new error of “reform.”

The Harris County Summary of its Safety+Justice Challenge can be viewed and downloaded here: strategysummary