A few years ago, Antonin Scalia, one of the nine justices on the US supreme court, made a bold statement. There has not been, he said, “a single case – not one – in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred … the innocent’s name would be shouted from the rooftops.”

Scalia may have to eat his words. It is now clear that a person was executed for a crime he did not commit, and his name – Carlos DeLuna – is being shouted from the rooftops of the Columbia Human Rights Law Review. The august journal has cleared its entire spring edition, doubling its normal size to 436 pages, to carry an extraordinary investigation by a Columbia law school professor and his students.

The book sets out in precise and shocking detail how an innocent man was sent to his death on 8 December 1989, courtesy of the state of Texas. Los Tocayos Carlos: An Anatomy of a Wrongful Execution, is based on six years of intensive detective work by Professor James Liebman and 12 students.

Starting in 2004, they meticulously chased down every possible lead in the case, interviewing more than 100 witnesses, perusing about 900 pieces of source material and poring over crime scene photographs and legal documents that, when stacked, stand over 10ft high.

What they discovered stunned even Liebman, who, as an expert in America’s use of capital punishment, was well versed in its flaws. “It was a house of cards. We found that everything that could go wrong did go wrong,” he says.

More on this subject as we review the available evidence. Unfortunately, failure to review available evidence at the investigation, arrest, discovery and other pretrial modes would seem to be what led the criminal prosecution system in Texas to, it appears, calmly put to death an innocent man.

The overarching question, of course, is, how often do we make this mistake?

 

University of Missiouri FOI Center

The center manages a reference and research library on FOI at the University of Missouri School of Journalism. The website makes available much of its eclectic collection of FOI materials and provides a wide array of links. Featured on the site are:

• News reports on FOI issues, updated daily.
• A summary of FOI audits done by state coalitions, with links to the detailed reports and relevant state law.
• Links to federal and state FOI guides.
• Links to Media Law research reports.

 

American Library Association

The ALA’s Washington Office posts a number of reports on legislation and regulations affecting open records and government secrecy and outlines their advocacy efforts for transparency.

Electronic Privacy Information Center

EPIC is extremely active in pressing FOIA requests related to electronic privacy. It posts summaries and provides scanned copies of the documents it obtains. The site also links to a downloadable FOI Act and other related sites.

Federation of American Scientists, Project on Government Secrecy

The section on Strategic Security has numerous references to useful background information on government secrecy. There’s also an archive to back issues of Secrecy News, Steven Aftergood’s invaluable newsletter on everything the government is trying to bury. There’s a link to let you subscribe by e-mail, free.

There are also lists of government and non-government websites related to secrecy issues, and a compilation of Bush Administration documents on government secrecy policies.

 

National Security Archive

The Archive collects unclassified documents while fighting against real-time secrecy. The site features timely reports drawn from unclassified materials and information on access issues such as FOIA.

OMB Watch

OMB produces some excellent reports on right to know issues. All are posted on the site. There are other sections on the environment, electronic government, and critical infrastructure information.

OpenTheGovernment

OpenTheGovernment is a coalition of non-profit organizations working against government secrecy and supporting right-to-know efforts. The site is designed to help you gather more information on open government topics. It features helpful background reports – most with brief informational lead-ins—on a wide variety of right to know and access issues, plus links to sites with more detailed information. Its Press Room and Resource Center include:

• A short but useful experts list.
• Issues updates by its member organizations.
• A Strategy section that features tools to fight government secrecy.
• A library with references to both electronic and hard copy books and reports on open government.

 

Project on Government Oversight

The FOI content is minimal but there are a number of current events reports related to security and whistleblower issues.

Public Citizen Freedom of Information Clearing House

The Clearing House provides assistance to individuals and public interest groups, as well as the media, on records access. The site provides a guide to using FOIA and aids in drafting a records request, plus research reports on litigation.

American Civil Liberties Union

Another very good guide to FOIA and a step-by-step guide to filing a FOIA request.

 

The United States Department of Justice (DOJ) has an Office of Information Policy, which is in effect a clearinghouse for information about the FOI procedures at nearly one hundred federal agencies. The federal government is complex enough that even with good intentions, the FOI officer or coordinator may not know what to do if you’ve sent your request to the wrong unit of government. My guess is that the Office of Information Policy is saving a lot of people, in and out of government, a lot of time.

FOIA Letter Generator | Reporters Committee for Freedom of the Press  As described. You’ve still got the challenge of describing or naming what it is you want, but the RCFP takes over the rote portions of drafting the request. (If you do a lot of these, you can use RCFP’s model as the basis for a template in the word-processor of your choice).

Federal Freedom of Information Act Research Guide  from Georgetown Law Library is an excellent resource and is clear, well-written, and will serve lawyers and non-lawyers alike – no small feat fit all of that (including links, of course) on one page – about three screens’ worth of real estate).

The Coalition of Journalists for Open Government, alas,  no longer exists, but it’s passed the torch to other organizations, most notably

The Reporters Committee for Freedom of the Press, the Sunshine in Government Initiative, and the National Freedom of Information Coalition’s foiadvocate blog. You can contact the Reporters Committee and SGI at 703-807-2100. The NFOIC can be reached at 573-882-5736.

But CJOG’s website, and its “Help By Topic,” are still available on line, and has not only great FOI resources:

• FOI Audits
• FOIA — Federal
• FOI Laws — State

But also other resources for getting information from the federal government, including

• Finding Federal Documents
  
• Congressional Research Report on Tracking Federal Legislation

Some excerpts of what’s on the CJOG “useful web resources” page:

Investigative Reporters and Editors

IRE offers its own ranking of state FOI laws and practices, based on a survey conducted with the Better Government Association.   It also provides information on its FOI activities and commentary.

Most valuable are two sections that present current and award winning reports utilizing public records or looking at government secrecy. Members also get access to IRE tip sheets and FOIA research.

….

National Freedom of Information Coalition
Headlines and links to FOI stories, plus links to resources in each state and to the newsletters and reports of a dozen state coalitions and FOI organizations.
….
Society of Environmental Journalists

The site has a helpful brief on FOIA fundamentals and practical tips to go along with it. It’s also worth checking in to look at the association’s newsletter, Watchdog, with reports and story ideas of particular interest to environmental reporters but often touching on broader FOI issues as well. See their  Environmental Reporting Toolbox

 Society of Professional Journalists

The FOI pages feature an online version of Open Doors, the society’s primer on accessing government records and a history of freedom of information written by the Freedom Forum’s Paul McMasters. Other features:

• A state-by state guide on media access to prisons.
• A list of Sunshine Chairs, persons in each state who can be contacted for help on FOI issues.
• Brief reports on SPJ’s open government activities.
• Information on filing a FOIA request and resource information.Sunshine in Government InitiativeThe Sunshine in Government Initiative is a coalition of media groups that promotes open government policies and legislation. The website contains information on current FOIA bills the coalition is supporting and background information on how the law is used in holding government accountable and providing citizens with needed information.

….

How to Make a FOIA Request by the National Security Archive at George Washington University.  The National Security Archive is a fantastic resource, and is itself an argument for the utility of FOI statutes:  putting more detail in the public record can, in the long run, only improve policy discourse. Assuming that citizes want informed discourse, but that’s over my pay grade. Or you can go to these individual links:

The National Security Archive User’s Guide to the FOIA

Tips and Tricks to Using the FOIA

Sample Freedom of Information Act Letter

Sample Freedom of Information Act Appeal Letter

Principal Agency FOIA Contacts

Web Won’t Let Government Hide this 2004 piece by  Ryan Singel on Wired.com is still exceptionally useful.

 

Free, But Not Cleared: Ernie Lopez Comes Home. Here’s the initial report on cases involving child deaths, including that of Ernie Lopez: The Child Cases: Guilty Until Proved Innocent.

Via Popular Logistics.

 

In any case, we haven’ written nearly enough about FOI – federal or state – and we’ll try to make up for that in the near future.

FOIA Geek should be in the toolbox of any researcher or investigator. Good stuff.

 

Mr. Compton’s many accomplishments included the prosecution of Sirhan Sirhan, convicted of the assassination of Senator Robert F. Kennedy in 1968.  The quote above is from Mr. Compton’s summation in the Sirhan case.

 

There’s no law preventing candidates from exceeding ethical requirements. If Mr. Liu is competent to be comptroller, he should have and could have put internal safeguards in the fund-raising process. Since the campaign raised more than $2 million, they could have hired an outside law firm, auditor or investigative firm charged with policing internal money-handling processes. Of course, without the illegal straw donors, it’s possible the campaign wouldn’t have raised as much money – or would have had to spend more time and energy to raise the same amount. Political campaigns – or any organizations – serious about ethics – can keep things on the up-and-up if they are so inclined.  It’s not as though the tools to keep things clean have to be invented, or that there’s any shortage of people with that expertise.

If good investigators focus on a fraudulent scheme, they’re likely to find evidence. Typically, even a clever fraudulent scheme tends to leave a lot of evidence behind. As a society – alas, ours seeems to be one – loses its ethical consensus – more people commit fraud, and it’s a fair bet that a lot of fraud and unethical conduct goes undetected. But – over and over, we see fraudsters who are initially undetected, and who continue or expand their schemes over time. As they continue without apparent detection, the perceived risk of detection seems to drop. NB: this is my speculation, an educated guess based on cases I’ve worked on or observed.

Instant Messages last longer than they take to compose or send. In fact, a lot longer.

The FBI found the following IM (instant message):

Yet another example of the durability of electronic communications.

Labor-intensive fraud tends to require more participants, or generate more witnesses. In the Liu case, the defendant is accused of asking other people for help in filling out campaign finance forms for “straw donors,” including forging signatures. Each one of those people is a potential prosecution witness; the more these people understood what was going on and had guilty knowledge (like the IM recipient), the greater motive and  less explanation will be needed for the government to secure their cooperation and testimony. Anyone who’s been deceived into performing any of these tasks is likely to feel betrayed, angry and scared. And – in cases where people were deceived or coerced into assisting in fabricating documents – and the government views them in that way – potential witnesses may testify without cooperation agreements, free from incentives to falsely testify, and immune to cross-examination about government incentives.

Forgery: don’t try this at home. Forgery is not an easily acquired skill. Assuming facts similar to those alleged here, people without any experience assume they can imitate or trace signatures without detection. It’s only true if experts don’t look. Forgery – depending on the medium (modern documents, currency, antiques, fine art) – is not usually a level playing field: experts often have a lot of training, share expertise or learn from people with specific expertise (inks, paper-making, printing) and, when push comes to shove, have the ability to bring in specialist colleagues and modern scientific and laboratory equipment, from microscopes to carbon-dating.  We can only explain such cases by assuming that unskilled forgers suffer from hubris, or assume that no one cares about integrity or will ever investigate. Or perhaps they’re not very bright.

One of the earliest forgeries in American history is Benjamin Franklin’s forgery of a purported letter from Frederick II of Hesse Kassel (Germany) to King George III,

urging the British to make more aggressive use of German mercenaries in battling the American insurgents …. The prince reminded King George that in addition to the fee he was being paid for the use of his troops, he was also due a comforting bonus for each soldier killed. As of the moment, the prince complained, too few of his troops were being killed to make the venture as profitable as he had been led to expect. He also suggested that it might be more humane to allow the German wounded to die rather than keep them alive to live wretchedly as cripples.

The forgery added a wallop to the various open offers of amnesty and free farmland available to Hessian deserters. It was a well-targeted, inexpensive, self-contained covert action. Of the 30,000 German mercenaries employed by the British, more than 5000 are known to have deserted.²

The differences between fraudsters and Ben Franklin? In the first instance, he was engaged in what – in the United States, at any rate – is widely regarded as a just war. And at risk of hanging had the Revolution failed. Second, there’s no apparent financial motive. But – third and fourth,, back to our earlier points:

(1) he was one of the most successful printers in the country;

(2) the investigative r esources to detect and prove forgery might then have been outmatched by printing technology.

The lessons here are twofold:

I. if you’re involved with, or represent, any organization that cares at all about its reputation – police yourself.

II. In a contest between deception and truth – when there’s a communications record (paper, electronic evidence) – the smart money, assuming good investigators, is on the truth.

 

1. Liu’s Campaign Treasurer Arrested on Fraud Charges by David Chen and Benjamin Weiser, dated February 28th, 2012
2. Richard Helms, A Look Over My Shoulder: A Life in the Central Intelligence Agency, ISBN 0-8129-7108-6, 1st paperback edition,  2004, at 110.

Firefox: We talk a lot about privacy at Lifehacker, specifically about how your activities are tracked on the web and what you can do to stop it. If you’re still on the fence or not convinced that the issue is as widespread as it is, Collusion is a Firefox extension that will show you in real time which sites are tracking you, where you picked up their tracking cookies, and what they can see.

Collusion provides a visual, interactive map of tracking services you’ve interacted with and the sites you visited with the tracking cookies and scripts on them. Installing Collusion doesn’t require a restart, and once installed, the add-on opens a tab and begins to draw a map of how you’re being tracked as you browse the web. You’ll find most sites use some kind of tracking cookies (ours included) for ads, stats, and social media, but even after a few minutes of web browsing, the tracking map1111 can grow alarmingly large. Hover over any point on the map to see who the tracking service is, and which sites you’ve visited are connected to it.

Lifehacker: Collusion for Firefox Shows You Who’s Tracking You on the Web In Real Time

 

A teenager was shot and killed by a police officer in the Bronx on Thursday afternoon after running into his home as officers pursued him, the authorities said. Paul J. Browne, the New York Police Department’s chief spokesman, said there was “no evidence that he was armed” when the officer, a member of a narcotics unit, shot him once in the upper left chest. It was unclear what had prompted the chase, Mr. Browne said.

The teenager, Ramarley Graham, 18, was pronounced dead at Montefiore Medical Center. During the pursuit, Mr. Graham turned onto East 229th Street and entered his family’s house, Mr. Browne said, adding that a team of officers followed him inside. The team was a plainclothes unit, though the group does wear raid jackets with police insignia on the front and back and shoulder patches on each arm. The officer had struggled with Mr. Graham near the entrance to a bathroom, Mr. Browne said, before shooting him. A small amount of marijuana was found in the toilet, Mr. Browne said.

 

Messrs. Flegenheimer and  Baker note that “[t]he shooting of Mr. Graham was the third time in a week that a member of the Police Department had killed a suspect.” We hope to return to the larger questions of  preventability in the near future, as part of a larger discussion.  For the moment we merely note it, with sadness.

The following passage is a bit odd, because while it’s very detailed, it seems to avoid one critical issue: were the police identifiable, by their clothing, as police officers?

During the pursuit, Mr. Graham turned onto East 229th Street and entered his family’s house, Mr. Browne said, adding that a team of officers followed him inside. The team was a plainclothes unit, though the group does wear raid jackets with police insignia on the front and back and shoulder patches on each arm. The officer had struggled with Mr. Graham near the entrance to a bathroom, Mr. Browne said, before shooting him. A small amount of marijuana was found in the toilet, Mr. Browne said.

The “raid jackets” are generally kept handy to prevent other officers from mistakenly failing to identify a team member as a person not a police officer, and to identify officers to the public as less likely to be police impersonators. (One person can have made and wear a fake raid jacket; but the larger the number of people wearing raid jackets, the more likely members of the public are to regard them as legitimate police officers.

In other words, Mr. Browne seems to have said that  the unit has raid jackets available, wears them or should wear them some of the time. Whether any or all of the service members present that day were wearing raid jackets some or all of that day – that question seems to have been asked but does not seem to have been answered.

A more disturbing question might be – as in this case – since properly credentialed and trained police officers are capable of such outcomes, are some people more scared of “real” police than “fake” police? Are there members of the public who question the moral and legal legitimacy of the police? If so, why?

Here are a few other questions:

1. are there contemporaneous video recordings (fixed security cameras, or video from “smart phones”) or telephone recordings of all or part of what happened?
2. Radio transmissions related to this operation – are they among the frequencies which the NYPD, per FCC regulations, routinely records, or is it among the substantial number of frequencies which it does not record?
3. As a state, do we believe marijuana use a sufficient public health risk – or sufficiently morally repugnant -  as to warrant the use of deadly force in order to make a social statement? It should be clear that increasing enforcment level, the probability of apprehension, the speed of punishment, the severity of punishment – have many consequences. But curtailing the market in marijuana is not among them.

The question we will be asking is whether one or more officers should be indicted for homicide.

The questions we won’t be asking include these:

1. Does every from of law-breaking require the use of the criminal sanction and deadly force for its enforcement?
2. Are New York City police officers adequately trained?
3. How do we define proper training?
4. What can we do to prevent deaths like that of Ramarley Graham? We believe there are many strategies which will prevent wrongful deaths, and increase the safety of our police officers. But it’s going to take some difficult public and private discussions, and some political bravery