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A daily report on important news nationwide from Ted Gest of Criminal Justice Journalists, plus commentary and research highlights.

 Fentanyl Drives Overdose Death Rise in West

Long a scourge on the East Coast, fentanyl is driving a rapid increase in overdose deaths in the Western U.S., the Wall Street Journal reports. A projected 88,295 people in the U.S. died from overdoses in the year ending last August, says the Centers for Disease Control and Prevention. In 2019, there were 70,630 drug deaths, a record broken last year. Opioids including fentanyl were involved in about 70 percent of overdose deaths in 2019. In the Seattle area, overdose deaths involving fentanyl were up 57 percent in 2020 . Preliminary data show deaths from synthetic opioids like fentanyl rose 162 percent in the Las Vegas area last year. A Los Angeles County report blamed fentanyl for a 26 percent jump in overdose deaths among the homeless in 2020's first seven months.

The problem is acute in San Francisco, where a record 708 people died of drug overdoses in 2020, a 61 percent increase from the previous year. By comparison, 254 people died of COVID-19 in the city last year. So far, this year has been worse: 135 died by overdose in January and February, on pace for more than 800 deaths by year's end. "We see the death and devastation getting worse right in front of us," said Matt Haney, a Board of Supervisors member who represents the Tenderloin neighborhood, the center of the drug epidemic. "It's an unprecedented spiraling, directly connected to the introduction of fentanyl in our city." Fentanyl can be 50 times more potent than heroin, making it possible to overdose on tiny amounts. As a result, when fentanyl hits the streets in force, more people die. That is what has happened in New England and the Rust Belt, where beginning nearly a decade ago it was often mixed into heroin. In some places in the Eastern U.S., it has all but replaced heroin as a popular street opioid.

 Resigned MN Officer Faces Manslaughter Charge

Kim Potter, the police officer who fatally shot Daunte Wright during a traffic stop in Brooklyn Center, Mn., on Sunday, will be charged with second-degree manslaughter, reports the St. Paul Pioneer Press. The shooting prompted nights of protests and raising tensions near the murder trial of the ex-officer charged with killing George Floyd, reports the Associated Press. Potter and Police Chief Tim Gannon resigned Tuesday. Gannon said Potter mistakenly grabbed her pistol when she was trying to pull out her Taser. Brooklyn Center Mayor Mike Elliott said the city had been preparing to fire Potter, a 26-year veteran, when she resigned. Elliott said he hoped her resignation would "bring some calm to the community," but that he would keep working toward "full accountability under the law." Washington County Attorney Pete Orput said he would give more details later Wednesday about the charge against Potter. 

Police and protesters faced off once again after nightfall Tuesday, with hundreds of protesters gathering at Brooklyn Center's heavily guarded police headquarters, now ringed by concrete barriers and a tall metal fence. Police in riot gear and National Guard soldiers stood watch. About 90 minutes before a 10 p.m. curfew, state police announced that the gathering had been declared unlawful and ordered the crowds to disperse. That set off confrontations, with protesters launching fireworks toward the station and throwing objects at police, who launched flashbangs and gas grenades, and then marched in a line to force back the crowd. Police also ordered all media to leave the scene. Protesters and Wright's family members say the shooting shows how the justice system is tilted against Black people, noting Wright, 20, who is Black, was stopped for an expired car registration and ended up dead. Brooklyn Center, just north of Minneapolis, has seen its racial demographics shift dramatically. In 2000, more than 70 percent of the city was white. Today, a majority is Black, Asian or Hispanic.

 Judge Denies Chauvin Acquittal Motion, Defense Proceeds

A Minnesota judge rejected a defense request to acquit former Minneapolis police officer Derek Chauvin's in George Floyd's death, the Associated Press reports. Judge Peter Cahill pressed on with the case after Chauvin attorney Eric Nelson argued that prosecutors had failed to prove that Chauvin killed Floyd. Nelson said the prosecution's expert witnesses gave conflicting opinions about what caused Floyd's death after the 46-year-old Black man was pinned under the white officer's knee for what authorities say was 9 1/2 minutes last May. The prosecution rested its own case on Tuesday after 11 days of testimony and gripping video evidence.

Chauvin's defense called a use-of-force expert who testified that Chauvin was justified in pinning Floyd and said it might have gone easier if the Black man had been "resting comfortably" on the pavement. Barry Brodd, a former Santa Rosa, Ca. officer, stoutly defended Chauvin's actions, even as a prosecutor expressed incredulity over Brodd's use of the "resting comfortably" phrase. Top Minneapolis police officials have testified that Chauvin used excessive force and violated his training. Medical experts called by prosecutors have said that Floyd died from a lack of oxygen because of the way he was restrained. Yet Brodd contended that Chauvin's actions were "following current practices in policing and were objectively reasonable." The question of what is reasonable is important: Police officers are allowed certain latitude to use deadly force when someone puts the officer or other people in danger.

 Kenosha Officer Who Shot Jacob Blake Back On Duty

A white Wisconsin police officer who was investigated and cleared for shooting and injuring a Black man during a domestic dispute has returned from administrative leave, the Associated Press reports. Kenosha officer Rusten Sheskey wasn't charged in the August 2020 incident that left Jacob Blake paralyzed from the waist down. Sheskey shot Blake seven times as Blake was about to get into an SUV. Kenosha Police Chief Daniel Miskinis said Sheskey returned to duty March 31. Miskinis said Sheskey was found to have been acting within policy and won't be disciplined.

"I know that some will not be pleased with the outcome; however, given the facts, the only lawful and appropriate decision was made," Miskinis said. Sheskey and two other Kenosha officers were trying to arrest Blake on an outstanding warrant when a pocketknife fell from his pants during a scuffle. Blake said he picked it up before heading to a vehicle to drive away with two of his children. He said he was prepared to surrender once he put the knife in the vehicle. Sheskey told investigators that he feared for his own safety so he opened fire. Blake last month filed a lawsuit accusing the officer of excessive force.

 FL Court: Police Can Be Victims Under Marsy's Law

Imagine a white police officer killing a Black civilian in Florida, without witnesses or a video. The cop tells his sergeant he had to kneel on the man's neck because he looked scary and maybe he had a weapon. The police department treats the officer like the victim and keeps his name secret. Behind closed doors, internal affairs reviews the case, and the prosecutor doesn't file charges. The officer slips back into his job. Records of the incident and aftermath can't be found without a name, and the victim's family is left wondering what happened. There's no public outrage, no Black Lives Matter protest, no murder trial. That scenario is imaginable under a new ruling from a Tallahassee appellate court, reports the Florida Bulldog.

The First District Court of Appeal decided that a 2018 victims' privacy law applies to police officers. If the Florida Supreme Court agrees, an expanded version of "Marsy's Law" will prevail statewide. The implications are concerning to press freedom watchdogs. "Derek Chauvin is Exhibit A," said Frank LoMonte of the Brechner Center for Freedom of Information at the University of Florida, which signed a brief in the case. "The reason that we know Chauvin has 18 prior complaints on his record, none of which results in his losing his job, is because his name was public record" in Minnesota, LoMonte said. 'If we don't know the names of the officers, then we don't know whether the shooting [or other deadly force] was a one-time aberration or part of a pattern of behavior." Media lawyer Tom Julin said, "The concern and the fear is that this decision will be used broadly to allow law enforcement officers who are involved in controversies to stay out of the public limelight." The victims' privacy law honors Marsalee "Marsy" Ann Nicholas, a student at the University of California, Santa Barbara, who in 1983 was stalked and fatally shot by her ex-boyfriend.

 Ponzi Schemer Bernie Madoff Dies in Prison

Bernie Madoff, the financier who pleaded guilty to orchestrating the largest Ponzi scheme in history, died in a federal prison early Wednesday, the Associated Press reports. Madoff, 82, died at the Federal Medical Center in Butner, N.C., apparently of natural causes, the person said. Last year, Madoff's lawyers asked a court to release him from prison in the COVID-19 pandemic, saying he had suffered from end-stage renal disease and other chronic medical conditions. The request was denied.

Madoff admitted swindling thousands of clients out of billions of dollars in investments over decades. A court-appointed trustee has recovered more than $13 billion of an estimated $17.5 billion that investors put into Madoff's business. At the time of Madoff's arrest, fake account statements told clients they had holdings worth $60 billion. For decades, Madoff enjoyed an image as a self-made financial guru whose Midas touch defied market fluctuations. A former chairman of the Nasdaq stock market, he attracted a devoted legion of investment clients, from Florida retirees to celebrities such as famed film director Steven Spielberg, actor Kevin Bacon and Hall of Fame pitcher Sandy Koufax. His investment advisory business was exposed in 2008 as a multibillion-dollar Ponzi scheme that wiped out people's fortunes and ruined charities and foundations. Madoff pleaded guilty in 2009 to securities fraud and other charges, saying he was "deeply sorry and ashamed."

 Clarke Starts Contentious Path to Become DOJ Civil Rights Chief

When President Trump was waging his baseless assault on the presidential election results last fall, Kristen Clarke of the Lawyers' Committee for Civil Rights Under Law opened her inbox to a stream of vicious threats over her efforts to fight back and protect the rights of voters. "May you be found guilty by military tribunal and executed by hanging," one email read. Clarke, who is Black, posted it on Twitter. "Not deterred by those who harbor and espouse racism and hate," she declared. For Clarke, 46, the attacks were an ugly reminder that her rise to the highest ranks of civil rights advocacy offered no shield from hate and prejudice, the Washington Post reports. On Wednesday, Clarke appears at a Senate confirmation hearing as President Biden's nominee to lead the Justice Department's civil rights division. She is poised to become the first woman to helm what former attorney general Eric Holder called the agency's "crown jewel," returning to the office where she began her professional career two decades earlier.

Her confirmation path is expected to be contentious, however. At the Lawyers' Committee, Clarke was at the forefront of legal efforts to sue the Trump administration on voting rights, immigration, changes to the U.S. Census and the tear-gassing of protesters outside the White House. She spoke out frequently against Trump and former attorneys general Jeff Sessions and William Barr. Some conservatives fear that Clarke and Vanita Gupta — another civil rights lawyer, who is awaiting a Senate vote on her nomination to the Justice Department's No. 3 position — will ramp up federal efforts to restructure local police departments, bolster prosecutions of hate crimes and expand voting access for minorities, and have sought to cast them as radical and extreme. Clarke's supporters dismissed the attacks as a bad-faith effort to discredit her over the kind of powerful advocacy for fair treatment that is at the center of civil rights law.

 Capitol Police Had Clear Warnings on Threat, IG Says

The U.S. Capitol Police had clearer advance warnings about the Jan. 6 attack than were previously known, including the potential for violence in which "Congress itself is the target." Officers were instructed by their leaders not to use their most aggressive tactics to hold off the mob, says a scathing new report by the agency's internal investigator. Inspector General Michael Bolton criticized the way the force prepared for and responded to the mob violence. He said agency leaders failed to prepare adequately despite explicit warnings that pro-Trump extremists posed a threat to law enforcement and civilians and that the police used defective protective equipment. He said the leaders ordered the Civil Disturbance Unit to refrain from using its most powerful crowd-control tools — like stun grenades. The report offers the most devastating account to date of the lapses and miscalculations around the most violent attack on the Capitol in two centuries, reports the New York Times.

Three days before the siege, a Capitol Police intelligence assessment warned of violence from supporters of President Trump who believed his false claims that the election had been stolen. Some had even posted a map of the Capitol complex's tunnel system on pro-Trump message boards. The threat assessment said that, "Stop the Steal's propensity to attract white supremacists, militia members, and others who actively promote violence may lead to a significantly dangerous situation for law enforcement and the general public alike." Bolton concluded that intelligence breakdowns stemmed from dysfunction within the agency and called for "guidance that clearly documents channels for efficiently and effectively disseminating intelligence information to all of its personnel." Bolton will testify Thursday to the House Administration Committee. 

 Will Portland Plea Deals Affect Capitol Riot Cases?

Federal prosecutors' show of leniency for some defendants charged in the long-running unrest in Portland could have an impact on similar cases stemming from the Capitol riot, lawyers say. In recent weeks, prosecutors have approved deals in at least half a dozen federal felony cases arising from clashes between protesters and law enforcement in Oregon last summer. The "deferred resolution agreements" will leave the defendants with a clean criminal record if they stay out of trouble for a period and complete a modest amount of community service, Politico reports. Some lawyers attribute the government's newfound willingness to resolve the Portland cases without criminal convictions to the arrival of President Biden's administration and Justice Department policy and personnel changes. 

The moves differed from the throw-the-book-at-them stance that President Trump and his Attorney General, William Barr, adopted toward lawbreakers in racial justice protests that swept the IU.S. last year after the death of George Floyd. Five Portland cases in which deals were struck involved a felony charge of interfering with police during civil disorder. Some defendants are accused of punching or jumping on police officers during street battles. One was accused of shining a high-powered green laser into the eyes of officers dispersing a riot outside a police union building. The civil disorder cases are notable because the charge of police interference is also being wielded by prosecutors in cases involving the Jan. 6 storming of the Capitol. Laurie Levenson, a former federal prosecutor now a law professor at Loyola Marymount University in Los Angeles, said defense lawyers can cite the deferred prosecutions in Portland. Still, prosecutors can argue that what happened in D.C.is more serious. "Attacking the Capitol is sui generis — it's in a category of its own," Levenson said. "One is the seat of government and the other is not."

 Man Sues Detroit for False Arrest Based on Facial Recognition

A Michigan man sued the city of Detroit over his wrongful arrest, which he says was caused by faulty facial recognition technology, reports Courthouse News Service. Robert Williams, 43, of the Detroit suburb of Farmington Hills, questioned whether facial recognition technology is too flawed to ensure that innocent people aren’t mistakenly identified as criminals. Williams, who is Black, was arrested on Jan. 9, 2020, in front of his family in his front yard for stealing watches from a Shinola store in Detroit. The suit says a detective relied solely on a facial recognition program to obtain a warrant for Williams’ arrest. Based on the technological match, the suit claims, the detective obtained Williams’ expired driver’s license photo and placed it in a photographic array.

According to the suit, the warrant for Williams was “faulty and misleading” because a detective “hid the fact” that the person who picked Williams out of a photographic lineup never saw the shoplifter in person. The case was dropped by prosecutors less than two weeks after Williams' arrest, saying officers had relied on insufficient evidence. Williams said he heard an officer say, when he denied being in the store, that, "the computer must have gotten it wrong." He was released after nearly 30 hours in custody. His lawsuit says people of color are up to 100 times more likely to be misidentified using the technology than white men because the algorithms were primarily trained using Caucasian faces. The Boston City Council voted unanimously last June to prohibit police from using facial-recognition technology, becoming the largest city in the country to do so after San Francisco, which became the first city on the U.S. to ban the technology in May 2020.

 Criminal Justice at 'Most Punishing Point in History,' Critics Say

Despite a small decline in incarceration rates in the last decade, U.S. criminal justice policy "remains at its most punishing point in history," argue Jeremy Travis of Arnold Ventures and Columbia University sociologist Bruce Western in a new series of essays published by New York University's Brennan Center for Justice. As of 2018, the correctional population was 6.4 million adults, 2.1 million of them incarcerated. "Today's landscape of punishment includes the extensive criminalization of social problems such as homelessness and mental illness, intrusive policing policies such as stop and frisk, the imposition of fines and fees that exacerbate poverty, the legislatively defined collateral sanctions that close off opportunities for a full life to millions with criminal records, and the new technologies that place the entire public under a form of state surveillance," Travis and Western say, calling the situation the "Era of Punitive Excess."

Travis and Western define criminal punishment as the infliction of human suffering under the color of law. They say the unequal distribution of criminal justice supervision across the population is an essential fact about the punishment relationship. Most of the attention of researchers and policymakers has focused on the disproportionate incarceration of African Americans and Latinos. Throughout the period of rising incarceration, the imprisonment rate for African Americans has been 6 to 8 times higher than the imprisonment rate for whites. Imprisonment rates for Latinos have been 1.5 to 2 times higher than for whites. Similar disparities can be found in every dimension of the punishment landscape, from arrest patterns to pretrial detention to the imposition of fines and fees. Travis and Western say that, "If the past half-century demonstrated the electoral effectiveness of tough-on-crime rhetoric, then reversing the trends we have observed will require a new public discourse about how best to respond to harm."

 GOP May Allow Senate Hate Crime Debate

A bipartisan effort is underway to amend Democrats' anti-hate crime legislation in the Senate as the GOP edges back from its first filibuster opportunity of the Biden presidency, reports Politico. The bill from Sen. Mazie Hirono (D-HI) aimed at addressing a spike in hate incidents against Asian Americans during the pandemic has faced headwinds as Republicans weigh whether to mount a formal filibuster. Ahead of a vote Wednesday on whether to open debate, some in the GOP argued that the bill is unnecessary and a potential government overreach, but Republicans opened the door to beginning debate and amending the legislation.

"As a proud husband of an Asian American woman, I think this discrimination against Asian Americans is a real problem," said Senate Minority Leader Mitch McConnell (R-KY). "I'm hoping we will work out an agreement to ... move to final passage." A potential amendment would improve hate crimes reporting at the state and local level.  Sen. Susan Collins (R-ME), a pivotal moderate, said she would support the bill if the bipartisan amendment were attached and the bill was adjusted with language not explicitly linking hate crimes to COVID. Asian American lawmakers see the legislation as a modest but important step in condemning the recent spike in hate incidents against their community. "I really do believe that next few weeks will determine the next few decades of how Asian Americans are treated and understood and accepted in this country," said Rep. Andy Kim (D-NJ). 

 New Orleans' Kenneth Polite Tapped to Head DOJ Criminal Division

Kenneth Polite, former U.S. Attorney for the Eastern District of Louisiana, was nominated by President Biden to head the Justice Department's criminal division, reports NOLA.com. Polite served as the top federal prosecutor in New Orleans from 2013 to 2017. Polite concentrated on gun violence, saying his brother's killing in 2004 inspired him to become a prosecutor. He encouraged businesses to hire former inmates. He won support from Republicans like Louisiana Attorney General Jeff Landry, who urged President Trump to retain him.

Still, Polite was one of dozens of U.S. Attorneys dismissed by Trump. He went into private law practice. On Twitter and in mass media, he’s increasingly spoken out in favor of criminal justice reform. Last year, Polite and his firm joined with the American Civil Liberties Union of Louisiana to file lawsuits against police misconduct. The project aims to bring up to 1,000 cases. Polite said his brother is a police officer, and he hopes that the project would push police departments to improve themselves. New Orleans Mayor LaToya Cantrell's office hired him to probe corruption in the city's Department of Safety and Permits after the collapse of the Hard Rock Hotel construction site in 2019. Polite also led a review of how Louisiana State University handles sexual harassment claims.

 MN Officer, Chief Quit After Mistaken Killing

Brooklyn Center, Mn. police officer Kim Potter resigned Tuesday, as did Police chief Tim Gannon, two days after  Potter fatally shot 20-year-old Daunte Wright during a traffic stop. Mayor Mike Elliott said. Elliott said he hopes Potter's stepping down will bring some calm to the community, though he says people ultimately want justice, reports the St. Paul Pioneer Press. "We have to make sure justice is served," he said Tuesday. "... Daunte Wright deserves that." Potter wrote in a two-sentence letter that, "I believe it is in the best interest of the community, the department, and my fellow officers if I resign immediately."

Potter, a Brooklyn Center officer for 26 years, was put on administrative leave after she shot Wright on Sunday afternoon. Pressure has been growing for officials to fire her. Gannon said Potter mistakenly fired her firearm instead of her Taser. In a video of the incident, Potter can be heard warning Wright that she will tase him, then yelling "Taser! Taser! Taser!" as she draws her actual firearm and fires one shot before screaming, "Holy s–t! I shot him!" Washington County Attorney Pete Orput, who is reviewing the case, said he expects to make a charging decision Tuesday. He said the decision won't be made public until he is able to discuss it with the Wright family.

 40 Arrested in Protests Over Minnesota Killing by Officer

Kim Potter, 48, a 26-year veteran of the Brooklyn Center, Mn., Police Department, was identified as the officer who fatally shot Daunte Wright, a 20-year-old Black man, during a traffic stop in what the police chief called an "accidental discharge." Potter was put on administrative leave. Police Chief Tim Gannon said Potter mistook her firearm for her Taser when she shot Wright on Sunday. He released body-camera footage of the incident during which Potter shouted "Taser" before firing. City Manager Curt Boganey was fired. Boganey said Potter should be given due process after Mayor Mike Elliot said she should be fired. Elliot said the city council voted Monday to give the mayor's office "command authority," USA Today reports.

Protests grew outside the Brooklyn Center police station Monday as hundreds gathered despite a 7 p.m. to 6 a.m. curfew imposed by Minnesota Gov. Tim Walz. A massive law enforcement presence descended on the Minneapolis area, and about 1,000 Minnesota National Guard troops were activated. Brooklyn Center is 10 miles north of Minneapolis, where the trial of former police officer Derek Chauvin in the death of George Floyd was in its third week of testimony. Potter was also one of the first officers on the scene of a fatal police shooting in 2019, when officers shot an autistic man, Kobe Dimock-Heisler, who had allegedly grabbed a knife. The Minneapolis Star Tribune reported Potter told two officers involved in the shooting to "exit the residence, get into separate squad cars, turn off their body worn cameras, and to not talk to each other." About 90 minutes after Monday's curfew deadline, police began firing gas canisters and flash-bang grenades to drive protesters away, sending clouds wafting over the crowd and pushing some back. Some protesters, wearing gas masks, picked up smoke canisters and threw them back toward police. About 40 arrests were made ranging from curfew violation to rioting. 

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