Nov 21 2017

Defense Dep’t Says US Gov’t Not Guantanamo Detainees Own Art Detainees Created

The Dept of Defense changed a policy this month affecting the 41 remaining detainees at Guantanamo Bay Naval Base, known as Gitmo. The DOD ruled that detainees did not possess the artwork they created while detained and could not display it publicly or sell it. Art classes started at Gitmo “in the later years of the Bush administration as commanders explored ways to distract detainees who had spent years in single-cell lockups from getting into clashes with the guards,” according to Carol Rosenberg of the Miami Herald who along with Elena Goukassian of first reported on the story. As the article reports, the program appeared successful, and even US military personnel were impressed. Detainees began sending works they’d created as presents to their lawyers and families — after close inspection and screening for subliminal messages, of course.

Rosenberg’s article sites an ongoing exhibition of Guantanamo artwork at CUNY’s John Jay College of Criminal Justice, Ode to the Sea (which has gotten international media attention), as the impetus to the Pentagon’s latest decision. On the exhibition’s website, there is an email address listed for those interested in purchasing work. Rosenberg cites a Pentagon spokesperson concerned about “where the money for the sales is going.”

Erin Thompson, associate professor of art crime at John Jay College and one of three curators who organized Ode to the Sea, told Hyperallergic that of the eight artists featured in the exhibition, four are former prisoners, and only their work is for sale. Furthermore, no one from the Pentagon even tried to contact her to ask about sales, even though her email address is plainly listed on the exhibition’s website.

Muhammad Ansi, “Untitled (Crying Eye)” (2016), work on paper

The Guantanamo Bay detention camp is a United States military prison located within the Guantanamo Bay Naval Base, in Cuba. The prison was established by President George W. Bush’s administration in 2002 during the “War on Terror.” During President Barack Obama’s administration, the number of inmates was reduced from about 245 to 41;most former detainees were freed and transferred to other countries. According to many including the ACLU, Amnesty International and this author, the prison is an affront to basic US Constitutional principles, with some individuals held without bail or trial for over a decade. The DOD and the DOJ argue of course that since it is outside the country and since these are “military detainees” and not criminally accused, the US Constitution does not apply to them.


And that argument provides DOD justification for their policy change relating to the artwork created by detainees while detained. US Copyright laws do not apply in Guantanamo unfortunately and for inmates in the United States, the Federal Bureau of Prisons has an Art and Hobbycraft policy that permits prisoners to give away their art to authorized visitors; to mail artwork to relatives or certain approved visitors at the inmate’s expense; and to sell them through a hobbycraft sales program with prices set by a prison committee. But a US warden can limit the number of pieces and inmates are not allowed to take all of their art with them when they are released. The remaining pieces get destroyed.

This recent change in policy should not come as a surprise for observers of this Administration whose mean-spiritedness is evident in every corner and every decision. John Jay is home to the Prison-to College-Pipeline, a program where incarcerated men in NY State prisons get the opportunity to start college in their facilities and then get automatic admission to John Jay when they are released. The P2CP has been tremendously successful and has grown every year and is now spreading into various other countries. It has shown the value of giving those in prison an outlet for education, art and literature. The Art Program in Guantanamo serves a similar purpose and depriving the residents of the moral and intellectual property rights in their works and depriving them of the ability to create art and share it makes Gitmo and even darker place and serves no legitimate purpose.

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Nov 10 2017

Judge falls asleep during murder trial. Illinois Appeals Ct says “So what?”

Illinois Judge Jeffrey O’Connor took a short nap during the presentation of evidence in the murder trial of Nicholas Sheley, charged with a notorious killing spree. At the 2014, trial, the lights were dimmed so the jury could watch security camera footage on a monitor. When the presentation ended, an assistant attorney general asked that the lights be turned back on. The judge didn’t reply.

“Judge?” the defense attorney asked, according to a transcript. “Judge O’Connor?”

“Judge could we get the lights back on?” the assistant attorney general asked, approaching the bench.

“Hmm,” O’Connor replied, according to a transcript. A clerk allegedly poked him awake. When it was suggested now was a good time to break for lunch, the judge agreed. “Excellent time,” he said.

Judge O’Connor at the scene of the nap

A Whiteside County, Ill., jury later convicted Sheley of the slayings, part of a 2008 rampage in Illinois and Missouri that took the lives of eight people. Sheley, now serving a life sentence, had sought a new trial based on the judge’s nap. In fact, the defense team said the judge repeatedly fell asleep during the murder trial. But Judge O’Connor, denied both the request for a new trial as well as allegations that he had fallen asleep multiple times, saying only one instance had been documented and that even then he had heard the evidence.

A divided Illinois Appellate Court panel held that as long as the judge was not sleeping through crucial evidence or motions, an inadvertent nap is harmless. “We find that a judge falling asleep during a trial does not constitute … reversible error,” Judge Daniel Schmidt wrote in the majority opinion.

The issue is not whether the judge missed something important. Its about the message it sends to a jury about the importance of paying attention and the seriousness of the proceeding.
And in its latest ruling, the state’s appeals court said it had no effect on the trial, noting that the evidence against Sheley was overwhelming.
But in a sharply worded dissent, Judge Mary O’Brien disagreed, citing the 1996 conviction of Israel Vargas that was thrown out after a Cook County judge left the bench during a murder trial to take a phone call from another judge.

“A judge cannot be actively present on the bench when he is asleep,” O’Brien wrote.

Experienced trial attorneys will tell you that judicial napping is rare but sometimes happens during jury trials, when the judge serves more as referee than fact finder. I have come across it in civil trials but never in a criminal trial. I have seen lawyers intentionally push something off their desk to wake a judge up. My method is to cough loudly and I have heard other lawyers fake sneeze to wake up a nodding judge. But in a multiple murder trial? During the showing of the surveillance footage of one of the crimes? Its a bad message to the jury and for what judges are paid to preside over trials, they could stand up once in awhile and drink some coffee to make sure they are awake for the entire process.

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Oct 31 2017

La. Court Rules Asking for “Lawyer, Dog” Too Ambiguous to Trigger Right to Counsel

File this article under “You Can’t Make This Up” or “The Constitution is Overrated.” Warren Demesme is awaiting trial on charges of first-degree rape and indecent behavior with a victim under the age 13. He sought to suppress a purportedly incriminating statement made to the New Orleans Police Department sex crimes detective Nijel Baddoo (his real name). According to arrest documents, Demesme admitted to sexually assaulting one of the child accusers, but denied doing so to the other. He now denies both crimes. His contention was that he was denied his constitutional right to an attorney during questioning when New Orleans police ignored his request for a lawyer. Here is exactly what Mr. Demesme said:

“If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer, dog, cause this is not what’s up.”

But the transcript did not contain the commas I added. So in a twisted bit of logic, Louisiana Supreme Court Justice Scott Crichton wrote in his decision that the request was ambiguous. Here’s what the court said:

Judge Crichton who purportedly asked: Does a lawyer dog work pro bone-o?

“As this court has written, ‘If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.In my view, the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”

Are you kidding me!? Are you telling me that the NOPD is not familiar with the slang use of “dawg?” Are you telling me that Det. Nijel Baddoo did not know what Demesme meant? Of course he did. I was just down there for a nephew’s wedding and if I had a dollar for every time I heard someone refer to someone else as “dawg” . . . well, I would have a lot of dollars. . And what did the court think he could mean? What is a “lawyer dog” for crying out loud.

This case reaches far further than Louisiana. It shows how there are limits to your Constitutional rights because they are often reliant on facts interpreted by judges. IT shows how the criminal justice system works backwards – it presumes you guilty and not innocent so that losing your rights should be no big deal. And many who read about this case will say “Did you see what the guy was charged with? That’s a horrible crime.” No doubt – and if he is found guilty then he should receive appropriate punishment. But its the tough cases where our Constitution should shine. It should not matter what the charges are or who the defendant is. The right to counsel is firmly contained in the Sixth Amendment to our Constitution. The Supreme court stated in Gideon v. Wainwright that the Amendment means that people are entitled to legal representation at every critical stage of the proceeding. Custodial interrogation by law enforcement is a critical stage of the proceeding so there is no doubt that Demesme – once he asked for a lawyer – was entitled to have the questioning end immediately.

The Court here has gone too far and I hope that the case will find its way up to the Supreme Court of the United States. No reasonable person would say that Demesme’s words were equivocal. His intentions were clear, even if his syntax and use of slang was imperfect. This is just a court employing willful blindness and twisted logic to deny a person his Constitutional rights. It is also a window into what minority defendants face every day – countless times a day – in our criminal justice system.

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Oct 24 2017

Can the Visually Impaired “See” Your Website? If Not – You May be Sued!

It seems odd that a company or business could be sued over its website not being able to be read by the visually-impaired, but more and more companies are facing lawsuits brought by the visually-impaired (and their lawyers of course)over such claims. Claims have also been brought by the hearing-impaired against companies with websites that make no accommodation for them.
Back in 2012, I wrote an article on this blog about lawyers using the Americans with Disabilities Act (ADA) to bring lawsuits against restaurants for not being wheelchair accessible. I pointed out that while the ADA is an important statute that has been tremendously successful in increasing access for the disabled to places of public accommodation, lawyers have taken the law and started a cottage industry of trolling businesses for failing to comply.

The trend has now moved on to include claims against websites. In 2016 over 250 lawsuits, most of them class actions, have been filed against companies alleging violations of the ADA for failure to maintain websites that are accessible to the blind, visually impaired, deaf and hearing-impaired. The trend is continuing into 2017 with over a dozen such lawsuit filed just yesterday. The steady shift in our economy from traditional brick-and-mortar stores to online commerce has brought increased attention to website accessibility. Companies must now ensure their websites are ADA compliant or expect to be hauled into Federal court by the handful of plaintiff’s law firms that are bringing these claims.

Title III of the ADA, passed in 1990, prohibits discrimination against the disabled, including the blind, vision impaired, deaf and hearing-impaired in places of public accommodation:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.

While the law does not provide civil penalties for violations of the act, Congress thought it would be a good idea to let citizens act as “private attorneys general” authorizing the disabled to bring lawsuits when they were denied access to places of public accommodation due to their disabilities. The citizens would get no monetary award, but if they were successful, the business would have to change to make themselves ADA compliant. And to make sure that the disabled could get legal help for these lawsuits brought on behalf of the public good, Congress added a clause that would allow for recovery of legal fees for successful lawsuits! And that is why there has been such a proliferation of suits.

Courts have ruled that websites are places of accommodation and the vast majority of these cases settle quickly with a nice fee going to plaintiff’s counsel and the businesses making changes to their websites. However, a few companies have fought back and two recent court decisions may show that there is route to winning these lawsuits. In March of this year, Federal District Judge James Otero of the Central District of California dismissed a lawsuit by a blind plaintiff who claimed that he could not order pizza from the Domino’s website because it could not be accessed using his screen reader. Judge Otero held that the ADA does websites as places of public accommodations. However, he agreed with the defense counsel that Dominos had met its obligations under the law by providing 24/7 telephone access to blind customers. The court also held that requiring Dominos to have an accessible website would violate its constitutional right to due process since the Department of Justice has not issued any guidelines on compliance in this area. Judge Otero also pointed out that neither the law nor the regulations issued under the law currently require websites to be accessible, and that the DOJ had failed to issue any regulations on this topic. DOJ’s official statements state that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website. Based on these two statements and the lack of clear guidance, the court held that due process concerns invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” This is a strong argument which should be raised by any company defending these claims although the ruling has no binding effect out of the Central District Court of California (and even there it is only of limited value since any judge hearing a case would be of the same level of court). However, as the first case of its kind to address the argument and rule on it, I think most Federal judges would give it weight and take a good long look at its reasoning.

In February of this 2017, Florida District Judge Joan Lenard dismissed plaintiff Andres Gomez’s ADA Title III website lawsuit claim with leave to amend because he had failed to allege that his ability to use the defendant retailer’s website prevented him from accessing its stores. Gomez and his attorneys had filed a series of similar lawsuits against a variety of retailers.Judge Lenard held that “[a]ll the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store. To survive a motion to dismiss, Plaintiff must claim an actual (not hypothetical) impediment to the use of Defendant’s retail location.” Gomez had alleged that he could not purchase products online, but did not claim that the website’s inaccessibility impeded his ability to go to a store.

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