Month: January 2020

Before Amy Klobuchar was a United States senator and a Democratic presidential candidate, she was a prosecutor in Hennepin County, Minnesota. It was then, nearly two decades ago, that Klobuchar helped prosecute a teenager named Myon Burrell for murder. She hasn’t forgotten the case. She’s even touted it in the presidential debates to paint herself as a progressive who cares deeply for underserved communities.

But now an investigation by the Associated Press has cast serious doubt on Burrell’s guilt, and criminal justice activists are calling for Klobuchar to suspend her campaign.

The case revolves around the death of 11-year-old Tyesha Edwards, who was killed in the crossfire during a Minneapolis shootout in 2002. Ike Tyson and Hans Williams had been driving around town when a rival waved a gun at them. The pair picked up a third acquaintance and returned to the area with a gun. Williams remained in the driver’s seat while Tyson and the third man jumped out of the car. Tyson fired the gun toward the rival, but his vision was obscured by a wall. A bullet hit Edwards, and she died.

The third acquaintance has never been firmly identified. Investigators used jailhouse informants, including a rival gang member, to implicate Burrell as the third man. (One informant later said his 16-year sentence was cut down to three years in exchange for a testimony.) Burrell was eventually sentenced to life in prison, even though no physical evidence tied him to the case.

Tyson, who is now serving a 45-year prison term, has refused to name the third acquaintance, arguing that the man should not be arrested since he didn’t fire the fatal shot. But he has also long maintained that the man was not Burrell, and that Burrell was not present at the scene at all. At least two jailhouse informants have recanted their claims about Burrell, which they say investigators pushed them to say. Investigators failed to locate two people who said they were with Burrell at the convenience store during the shooting. Evidence that might clear Burrell, including video from a convenience store, has gone missing.

Klobuchar reportedly denied Burrell’s request to attend his mother’s funeral while he was incarcerated.

The Minneapolis NAACP, Black Lives Matter, and other activists in the area argue that because Klobuchar touted the case while campaigning, she should “immediately end her campaign for president.” Klobuchar’s record, particularly her failure to pursue police officers in certain excessive force incidents, has come under criticism from civil libertarians before.

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“Where were you on July 25th?” Rep. Jason Crow (D–Colo.) asked during Democrats’ opening arguments in President Donald Trump’s Senate trial. That’s the day that Trump, having held up congressionally authorized military assistance to Ukraine, made his notorious phone call asking Ukrainian President Volodymyr Zelenskiy for a “favor”—to have the foreign leader announce probes into Trump’s political rivals. Also on July 25, impeachment manager Crow said, thousands of Ukrainians were risking life and limb in the fight against Russian aggression.

The natural conclusion, Crow claimed, is that Trump’s decision to withhold aid cost lives. Thirteen Ukrainians died during the lapse in aid. Crow highlighted the fate of one in particular: Oleksander Markiv, who perished in battle in September.

Other impeachment managers echoed this critique several times over the course of the proceedings. But the idea gives the U.S. far too much credit for the security of Ukraine. It also undermines the case for impeachment, which rests comfortably on claims of corruption but buckles under apocalyptic anxieties around national security.

The U.S. routed $391 million in military aid to Ukraine in September. Of that figure, only $250 million was originally allotted from the Department of Defense; the other $141 million came from the State Department after the scandal broke in September. Such funds are generally intended to help Ukraine buy U.S. weapons, pay for some U.S. advisers to train their forces, and send officers to service academies in the United States. Emma Ashford, a research fellow at the Cato Institute, tells Reason that the assistance is intended “to reform the Ukrainian military in the long term,” as opposed to aiding one-off skirmishes on the battlefield.

Congress had until September 30 to allot the funds and disburse them to Ukraine. While the Trump administration failed to meet that goal, delayed by the president’s wheeling and dealing for political favors, that fact alone renders Crow’s prime example moot. A death in September can hardly be blamed on Trump when, as it stands, he had the entire month to send the funds to Ukraine.

Several larger, more fundamental misconceptions are at work here too. Ashford mentions two. Foremost, there’s the notion that military aid is akin to a water faucet, where “you turn it on and off like a tap [and] it makes a difference immediately” in combat. “That’s just not the case at all,” she says. Indeed, Laura Cooper, a Defense Department official, testified in November that the hole in aid did not correlate with a hole in military equipment in Ukraine.

The second problem, Ashford says, is “a lack of appreciation for the fact that this aid hasn’t done a huge amount to improve the Ukrainian military.” The most salient example of this might be the sale of Javelin anti-tank missiles to the country. The U.S. has stipulated that they must not be used in battle, rendering them purely symbolic. 

Meanwhile, acting as though Trump’s actions in Ukraine were so powerful as to facilitate these deaths exaggerates the importance of the money the U.S. has been sending, and it implies that Ukraine has long received such aid. But that’s simply not true: The U.S. routed its first lethal military aid package to the country in 2018, under Trump, after former President Barack Obama demurred at the opportunity. “The fact is that Ukraine, which is a non-NATO country, is going to be vulnerable to military domination by Russia no matter what we do,” Obama told The Atlantic‘s Jeffrey Goldberg in 2016. 

The benefits of our security assistance are by no means certain. It would have been wiser still to focus on the facts: The president acted corruptly by attempting to pressure a foreign leader to help him secure his re-election. That’s true whether or not the aid he temporarily withheld was doing any good.

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We have entered the sixth stage of grief following the tragic deaths of basketball star Kobe Bryant, his daughter, and seven others in a Sunday helicopter crash: legislation.

On Thursday, Rep. Brad Sherman (D–Calif.) introduced the Kobe Bryant and Gianna Bryant Helicopter Safety Act, which would mandate that all helicopters come installed with a Terrain Awareness and Warning System (TAWS). This technology warns pilots if they are descending too quickly or flying to close to the ground or other obstacles.

According to the National Transportation Safety Board (NTSB), the helicopter that Bryant and his fellow passengers were on did not have such a system on board.

Ever since a 2004 helicopter crash, the NTSB—which investigations transportation accidents and recommends safety improvements to regulators—has pressured the Federal Aviation Administration to require helicopters carrying six or more people to come equipped with TAWS. So far, the agency has only required it for air ambulances.

“Had this system been on the helicopter, it is likely the tragic crash could have been avoided,” claims a press release put out by Sherman’s office.

That statement is premature, given what we know about Sunday’s accident.

According to the Los Angeles Times, the helicopter carrying Bryant and his fellow passengers had been flying over hilly terrain in fog. Its pilot ascended rapidly to get out of a cloud bank, then started making a left turn before losing contact with air traffic control. The helicopter reportedly descended 2,000 feet before crashing at a high speed into a hillside.

So far, the NTSB has declined to say whether TAWS would have prevented Sunday’s crash. Lead investigator Bill English told Fox News that it’s not clear if “TAWS and this scenario are related to each other.”

One former NTSB air crash investigator, Gregory Feith, told The New York Times that TAWS might have been useful in avoiding Sunday’s crash, but that the system could also have produced a lot of false warnings a pilot may have ignored.

“With what the pilot was doing with Kobe Bryant, it would be beneficial, but when you’re following a highway with hills nearby, you get false warnings. And with false warnings, you tend to tune them out,” Feith said.

Helicopter pilot Brian Alexander similarly told Fox News that if the crash were the result of deteriorating weather conditions and the pilot’s own disorientation, having TAWS installed wouldn’t have helped much.

At a minimum, lawmakers should wait to learn whether TAWS would have prevented Sunday’s crash before they use said crash to justify mandating the technology.

Legislators and safety regulators should also weigh the potential safety benefits of installing TAWS on all helicopters against the costs of doing so, particularly if those costs crowd out other, more impactful safety improvements.

Not doing that crucial cost-benefit analysis often results in mandates for flashy new technology that would have prevented the most recent high-profile incident, while neglecting mundane but more effective safety measures.

A good example is the federal government’s push to get rail carriers to adopt positive train control (PTC)—a technology that prevents derailments by speeding trains—in the wake of a January 2018 derailment in Washington state that killed three people. The deaths from these derailments are a tiny fraction of rail deaths, the vast majority of which happen when trains collide with trespassers or with vehicles at highway crossings. Money spent on PTC could go instead to fencing, double-arm crossing guards at highway-rail intersections, and other improvements that actually address the most frequent rail deaths.

It’s a mistake to impose rush such a mandate into place without considering the trade-offs, whether you’re talking about trains or helicopters.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Cert petition: In 2015, DEA agents got a bad tip and raided Miladis Salgado’s Miami home, seizing $15k in cash and forcing her to cancel her daughter’s quinceañera. Though the DEA admitted there was zero evidence linking the money or Ms. Salgado to any crime, it fought her efforts to get the money back for two years before finally relenting. But Ms. Salgado hasn’t been made whole. Last year, the Eleventh Circuit ruled that because the gov’t dropped the forfeiture action right before the court could rule on the merits, Ms. Salgado did not “substantially prevail” and thus she was not entitled to attorney’s fees—meaning a third of the cash will go to her attorney. Now, Ms. Salgado and IJ are asking the Supreme Court to step in and apply the statute’s plain text mandating an award of fees instead of the judicially created “get out of jail free” card for civil forfeiture abuse. The South Florida Sun Sentinel has more.

• Part-time adjunct faculty at Duquesne University attempt to unionize, and the NLRB declares the United Steel, Paper and Forestry, Rubber, Manufacturing, Allied-Industrial and Service Workers International Union as their exclusive bargaining unit, presumably because adjuncts grade papers (NB: Your editor does not understand labor law). Duquesne, a “Catholic University in the Spiritan Tradition,” refuses to bargain with the union. An unfair labor practice? D.C. Circuit: Nope, the NLRB lacks jurisdiction over disputes between religiously affiliated nonprofit schools and their faculty. Dissent: Maybe if the adjuncts were fulfilling a religious role, but a categorical exemption sweeps too broadly.
• Under the Violence Against Women Act, aliens who are subject to removal can seek cancellation of removal if they are victims of domestic violence by a U.S. citizen spouse. To be eligible, the person seeking cancellation cannot have a criminal conviction unless the crime was connected to the alien’s having been abused or subject to extreme cruelty. Is the statute broad enough to cover punching your husband’s mistress in the nose? Third Circuit: In this case, the husband’s repeated adultery was part of the extreme cruelty, and socking the mistress was connected to it. Removal canceled.
• Getaway driver for a string of five robberies is convicted of five counts of “aiding and abetting the use of a firearm during and in relation to a crime of violence” and one count of being a felon in possession, is sentenced to 124.5 years in prison (his co-defendant in the robberies, by contrast, has already completed his sentence). Defying all odds, he convinces the Supreme Court to vacate his sentence not once, but twice, requiring the Sixth Circuit to reconsider his sentence. Sixth Circuit: We got it right the first two times. An intervening change in the law that would have reduced his firearm charges to 35 years instead of 107 doesn’t apply retrospectively.
• The Speedy Trial Act requires the government to try a criminal defendant within 70 days or the case will be dismissed. All that’s required is that a defendant make a motion after the 70 days expire. Defendant: I objected after 86 days! Sixth Circuit: That’s 86 calendar days. But 18 of those days don’t count under the statute, so your objection was two days too early and the conviction stands. Concurrence: Besides that, merely objecting isn’t enough; you have to file a motion to dismiss (or at least you did until our Circuit rewrote the statute).
• Off-duty Kane County, Ill. deputy attends his child’s soccer game in neighboring DuPage County. Displeased with off-color language being bandied about on a nearby basketball court, the deputy confronts teenage basketballers, flashes his badge and gun, then physically assaults one of the players. Player wins a $110k default judgment against the deputy. Which cannot be collected from his Kane County employer, affirms the Seventh Circuit. “The fact that [the deputy] used his badge, gun, and training in an unauthorized manner in pursuit of that purely personal goal does not bring his conduct within the scope of his employment.”
• Do Illinois state courts provide an adequate forum for adjudicating taxpayers’ Equal Protection claims? Seventh Circuit: Everyone agrees the taxpayers cannot raise their Equal Protection claims in state court. So no.
• Merrill, Wisc. man is caught with 143 kilos of marijuana, pleads guilty to possessing over 100 kilos. Yikes! He’s sentenced as if he possessed the equivalent of 4,679 kilos. Seventh Circuit: That finding rested on potentially unreliable statements by confidential informants. The trial court should have taken steps to determine whether the CIs were reliable. Eighteen-year sentence reversed and case remanded for resentencing.
• Arkansas prohibits anyone from donating money to a candidate running for state office more than two years before the election. Does the “blackout period” violate the First Amendment? Eighth Circuit: The preliminary injunction is upheld, and plaintiff can donate money while the case is pending.
• Arizona has a policy of wholly discarding ballots that are cast in the wrong precinct, rather than counting or partially counting those ballots. Arizona has also made it a crime to collect and deliver another person’s ballot. Violations of the Voting Rights Act? Ninth Circuit (en banc): Absolutely. The former has a discriminatory impact, and the latter was enacted with discriminatory intent. Dissents: It’s not unreasonable to regulate where voters can cast their ballots or who may handle absentee ballots.
• Arizona corrections officials settle health care class action, agree to comply with 103 “performance measures” designed to improve things. Was a district court justified in imposing contempt sanctions on the dep’t of corrections of $1k per incident of noncompliance? It was, says the Ninth Circuit. And with 1,445 such incidents (not to mention attorney’s fees), that’s a hefty chunk of change.
• Responding to a report of a domestic dispute, Sonoma County, Calif. deputies barge into man’s bedroom and find him alone, in bed, on his cell phone. Man declines to stand up and says he’s calling his lawyer. Deputy responds by tasing him in the chest. Ninth Circuit: No qualified immunity for the tasing deputy.
• Septuagenarian has a favorite fly fishing spot in the Arkansas River. Yikes! Nearby Cotopaxi, Colo. homeowners believe he’s trespassing on their property, which runs up to the centerline of the riverbed. Fisherman: The land is public land because it was navigable at Colorado’s statehood, which we know thanks to an early 19th-century beaver trapper and other accounts of commercial use from the time. Trial court: The fisherman doesn’t have standing. Tenth Circuit (over a dissent): Try again. (Click here for some local journalism.)
• And in en banc news, the Fifth Circuit (by an 8–8 vote) will not reconsider its decision allowing a Baton Rouge, La. police officer’s suit to proceed against a protest organizer. (The cert petition remains pending.) Nor will the Fifth Circuit revisit its decision deeming the individual mandate not a tax (on account of the tax being zero) and thus not a constitutional exercise of Congress’ taxing powers. (Relatedly, SCOTUS will not hustle along its consideration of the cert petitions.) Meanwhile, the Ninth Circuit will not reconsider its decision affirming the suppression of evidence on Crow land from a man an officer deemed non-Indian due to his physical appearance. A dissent castigates the decision, and a concurrence castigates the dissent. Spicy!
• And in Ohio Supreme Court action, a one-sentence, 307-word dissent: “I join Justice Lanzinger’s well-reasoned dissent, but write separately to highlight the General Assembly’s failure in legislative drafting exemplified by former R.C. 2929.14(D)(3), which the majority opinion relegates to a footnote to fully accommodate its 24 lines of unrelenting abstruseness consisting, remarkably, of the sum total of 307 words and a mere one period, a punctuation mark set out as a lone sentinel facing odds similar to that of the Spartans at the Battle of Thermopylae, a battle that occurred over the course of three days during the second Persian invasion of Greece, and is estimated by historians to have occurred in either August or September, or perhaps both, in 480 B.C., pitting an alliance of Greek city-states, led by King Leonidas of Sparta, against the Persian Empire of Xerxes I, bravely standing before the onslaught of invaders but ultimately unable to stanch the unrelenting tide of the overpowering hordes of words and statutory numbers including R.C. 2903.01, 2907.02, 2903.02, 2925.04, 2925.11, 2925.02, 2925.06, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, 4729.61, 3719.172, 4729.51, 4729.54, 2941.1410, 2929.20, without so much as a helping hand from a single, solitary semicolon, colon, or parenthesis, other than the parentheses surrounding the capital letters denoting the divisions of statutory sections that are sprinkled throughout the statute, a statute that purports to inform the citizenry of the potential penalty for certain enumerated criminal acts, but by cramming so many words about sentencing into one sentence, sentences itself to uselessness, especially in the case of an offender involved in a pattern of corrupt activity, regarding which R.C. 2929.14(D)(3) surprisingly is completely without specificity, in that it fails to cite a statutory section outlining what constitutes corrupt activity when it otherwise lists specific statutory sections relating to all the other offenses to which it applies, a statutory circumstance up with which we should not put.” (H/t: @Nonfinality)

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