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

 Senate Confirms Tucson Police Chief to Customs and Border Post

The Senate confirmed Tucson Police Chief Chris Magnus as the next commissioner of U.S. Customs and Border Protection, the Arizona Republic reports. Magnus, 61, has a 41-year career in public safety and has served in Tucson since 2016. Magnus is widely regarded as a progressive and controversial candidate to head the nation's largest law enforcement agency. His nomination by President Biden, which the Senate voted 50-47 to confirm, underscored ongoing partisan divisions on border enforcement and immigration. During his confirmation hearing in October, he said that he would seek to balance the enforcement of immigration laws and the humane treatment of migrants arriving at the southern border. Magnus becomes the first Arizonan to head Customs and Border Protection. The agency hasn't had a Senate-confirmed commissioner for more than two years.

Magnus has "developed a reputation as a progressive police leader who focused on relationship-building between the police and community, implementing evidence-based best practices, promoting reform, and insisting on police accountability," the White House said on Magnus' nomination in April. The number of agent encounters with migrants illegally crossing the border is down 14 percent in comparison to September, but represents a 263 percent increase compared with October 2019. Magnus expressed support for two controversial Trump-era policies. He said he would back expansion of the border wall in some areas and supported the continuation of the Title 42 policy, which allows border agents and officers to expel migrants to Mexico or their home countries immediately for public health reasons.

 Biden Administration Settles With Immigration Judges

U.S. immigration judges have settled a tense dispute with the Biden’s administration over their effort to restore union rights taken away from them under President Trump. The Department of Justice agreed on Tuesday to recognize the union as the exclusive representative for the nation’s immigration judges and follow the terms of their collective bargaining agreement, The Guardian reports. Days before reaching the settlement, the head of the federal immigration judges’ union accused the administration of “doubling down” on the Trump efforts to freeze out their association even as they struggle with a backlog of almost 1.5 million court cases and staff shortages.

After decades of relatively smooth relations between the National Association of Immigration Judges (NAIJ) and the Department of Justice, Trump capped four years of conservative immigration policy by successfully petitioning to strip hundreds of immigration judges of their right to unionize. The hostile move was decided by the Federal Labor Relations Authority (FLRA), an independent federal agency that controls labor relations between the federal government and its employees, on the day before the presidential election. On Tuesday, the Biden administration changed its tune, agreeing to recognize the union and make other concessions in exchange for the NAIJ withdrawing its charges of unfair labor practices.

 Holmes Tries to Explain Blood-Test Irregularities

Elizabeth Holmes's surprise turn on the witness stand in her criminal fraud trial has given jurors a close look at the control she held over her blood-testing startup Theranos Inc., and at the alleged torment she endured in her personal life at the same time the Wall Street Journal reports. Prosecutors charging Holmes with 11 counts of fraud questioned her on Tuesday. Holmes testified that "we wanted to help people who were scared of needles," including children, elderly people, cancer patients and women undergoing fertility treatments, who sometimes had to wear long-sleeved shirts to cover up bruises from frequent blood draws. Holmes believed Theranos had developed technology capable of running any blood test. She repeatedly said that reports she got from subordinates led her to believe elements of the company's technology were working. Former Theranos employees, including a chemist and a lab director, have testified that they tried to report problems with the blood-testing startup's technology and were rebuffed or ignored.

The prosecution's strongest evidence were documents that were altered to include the names and logos of pharmaceutical companies, including Pfizer Inc., suggesting the companies had validated Theranos' technology. Holmes admitted to doctoring the reports but said it wasn't done maliciously. She said Theranos started using commercial blood analyzers because the company couldn't handle processing a high volume of patient blood samples on its own devices, not because the company was trying to mislead anyone. It became impractical to test hundreds of samples on its devices, Holmes said, because each machine could run only one sample at a time, so Theranos bought commercial analyzers and modified them to work with the small samples of blood it collected. They didn't tell anyone, she said, because it was Theranos' intellectual property. She said the workaround was a protected trade secret. Holmes expressed regret for how Theranos handled complaints from lab employees, a moment that made her appear human, legal observers said, but allowed the government to show the lengths to which the company went to undermine two of its young scientists whose concerns were later validated by regulators.

 Racist Texts by Torrance, CA Police Are Investigated

A trove of racist text messages exchanged by more than a dozen current and former Torrance, Ca., police officers and recruits, is being investigated, the Los Angeles Times reports. The broad scope of the racist text conversations, which prosecutors said went on for years, has created a crisis for the police department and could jeopardize hundreds of criminal cases in which the officers either testified or made arrests. The officers' comments spared no color or creed: They joked about "gassing" Jewish people, assaulting members of the LGBTQ community, using violence against suspects and lying during an investigation into a police shooting. Hateful comments were targeted at Black people. Officers called Black men "savages," and several variations of the N-word. The officers also shared instructions on how to tie a noose and a picture of a stuffed animal being lynched inside Torrance's police headquarters.

While no officers face criminal charges over the text messages, the racist exchanges have led to the dismissal of at least 85 criminal cases involving the officers implicated in the scandal. County prosecutors had tossed 35 felony cases as of mid-November, and the Torrance city attorney's office has dismissed an additional 50. The officers were listed as potential witnesses in nearly 1,400 cases in the last decade. They did not necessarily testify in each case, so it's unclear how many cases could be affected. Since 2013, the group of officers identified has been involved in at least seven serious use-of-force incidents in Torrance and Long Beach, including three that ended in the deaths of Black and Latino men. Although the officers' actions were found to be justified in each case, experts say those cases should be reexamined in the context of the hateful messages.

 Biden Panel Reviews Supreme Court, Makes No Proposals

A bipartisan commission appointed by President Biden unanimously adopted a report detailing controversies over the Supreme Court and assessing proposals to address them, but few expected the 294-page document to resolve political divisions over the judiciary that have intensified in recent years, reports the Wall Street Journal. At Tuesday's meeting, commission members praised the report-writing process for its civil dialogue and regard for all views. However, the panel final report did not reach consensus or any recommendations. Biden appointed the 36-member panel of respected scholars, practitioners and former judges representing a broad ideological mix in April. "The report is so measured in tone that it would make an excellent basis for classroom discussion, which is a mixed compliment," said University of Texas law Prof. Sanford Levinson. "Its obvious concern with being relatively impartial means that it is unlikely to generate any genuine political movement."

The Presidential Commission on the Supreme Court, under the leadership of former Obama White House counsel Robert Bauer and Yale law Prof. Cristina Rodríguez, was assigned to review the structure and practices of the Supreme Court, including proposals such as increasing the number of justices or limiting their terms. The report arrives amid a consequential Supreme Court term in which its conservative majority is weighing whether to expand access to concealed weapons, require public funding of religious schools in some circumstances and overrule Roe v. Wade, the 1973 decision recognizing women's constitutional right to end unwanted pregnancies. The White House, having tamped down debate over the court during the commission's deliberations, now finds the issue back on its agenda. Officials declined to say when Biden would address the report or whether he will take any actions based on its assessments.

 New Law Will Strip Military Commanders of Prosecution Powers

House and Senate negotiators reached a landmark agreement on Tuesday that would strip military commanders of most of their authority to prosecute sexual assaults and many other criminal cases, a move that Pentagon leaders, lawmakers and presidents have resisted for nearly a generation. The legislation, part of a defense policy bill, comes after nearly two decades of efforts by female lawmakers and survivors' groups, and in spite of fierce last-minute lobbying against the proposal by military lawyers, the New York Times reports. Under the agreement, independent military prosecutors would replace commanders in determining whether those accused of sexual assault, rape, murder, domestic violence and an array of other offenses would be prosecuted. Sexual harassment would be criminalized, but would not fall under the special prosecutor structure, a concession to opponents of the changes. The new law will take two years to roll out.

Under current law, commanders have the authority to determine which cases are referred to courts-martial, the pool of eligible jurors and the scope of clemency requests. Under the new agreement, "special trial counsel" would be tasked with assessing the cases covered by the legislation and have the exclusive authority to refer them to courts-martial. Each military service would have a lead special trial counsel who would report directly to the secretaries of the Army, Navy and Air Force, rather than judge advocate generals in the military. Those pushing for changes to the current system argued that civilian leaders appointed by the president and answerable to Congress must hold that role. Commanders will maintain their authority to conduct the trials, choose jury members, grant immunity and approve witnesses, conditions that proponents say were technically necessary to ensure due process and the fair administration of military justice. The efforts reflect generational changes in the armed services, with younger members speaking out more forcefully against the current system, and shifting views among lawmakers in both parties who have complained about the Pentagon's tepid response to assault, and its lack of progress on the issue.

 Gun Arrest Probes Force 13 Officer Removals in Philadelphia

Thirteen Philadelphia police officers have been removed from street duty amid questions about their roles in gun arrests, the Philadelphia Inquirer reports. The department declined to identify the officers, the cases, or detail the nature of the internal review, other than to say it involved "discrepancies" flagged after an audit of about 325 arrests in gun cases. The department's Internal Affairs bureau launched the audit in March to evaluate the quality of cases. District Attorney Larry Krasner believes that in some of the arrests under review, video from an officer's body-worn camera appeared to conflict with the account they reported in police paperwork. It was not immediately clear if any of the officers would be disciplined. Krasner declined to say if he expected to file criminal charges.

The decision to simultaneously pull many officers from the street is a relative rarity for the department, which employs about 6,000 officers. Two years ago, 72 officers were placed on desk duty after a scandal over racist or offensive Facebook posts — the largest such action in modern times. The majority ultimately kept their jobs. Gun arrests have been a relative point of pride for the department during an otherwise dismal year for violence across the city; commanders have frequently highlighted the record pace of such arrests as proof of their commitment to fighting crime. Police have arrested more than 1,900 people for illegal gun possession this year, by far the highest year-to-date total since at least 2015. John McNesby, president of Fraternal Order of Police Lodge 5, the officers' union, said he believed the officers who'd been benched were demoralized and felt as if their dangerous street work was being unfairly second-guessed by people sitting behind a desk. "They're not too happy, and hopefully these things can work themselves out in a quick manner," McNesby said.

 GOP Lawmakers Attack Jail Conditions of Capitol Rioters

Focusing on 3 percent of the people detained at a Washington, D.C., jail where the lack of water and food and the problem of standing human waste were cited in a scathing report last month from the U.S. Marshals Service, a group of Republican lawmakers blamed the conditions on politics, Courthouse News Service reports. With an inmate population that is almost exclusively Black, the jail has long ignored complaints about conditions. It wasn’t until this year, after loud complaints from about 40 or so accused Capitol rioters, most of whom are white, that the U.S. Marshals Service concluded that the conditions were so inhumane as to necessitate the removal of about 400 inmates. “Americans should not be languishing in hideous, unconstitutional conditions waiting for access to evidence and counsel,” Rep. Matt Gaetz (R-FL) said at a Tuesday press conference, likening the rioters to “prisoners of war.” 

Titled “Unusually Cruel: An Eyewitness Report From Inside the D.C. Jail,” the document details “atrocious” and cramped conditions, broken toilets and black mold. Several Jan. 6 defendants were interviewed for the report, which quotes them as saying that their refusal to be vaccinated against the coronavirus has left them unable to speak with their attorneys and families or attend religious services. Taking an ironic position for a report on a jail where Black men represent 94 percent of the inmate population, the lawmakers criticized the dissemination to Capitol rioters of what they call “racist” and “anti-American propaganda.” The jail has 1,400 inmates. 

 Bannon Trial Set July 18, Meadows Contempt Charge Due

President Trump’s former adviser Steve Bannon will go to trial July 18 on criminal charges that he defied a subpoena from the House committee probing the Jan. 6 attack on the Capitol and Trump’s attempt to subvert the 2020 election, Politico reports. Prosecutors suggested starting the trial in April; the defense proposed October. Judge Carl Nichols, a Trump appointee, said the anticipated pretrial motions Bannon’s defense intends to file are no reason to put off a trial for almost a year. Nichols also sounded skeptical about the prosecution’s pressing for a trial by April, considering the pace of hundreds of criminal cases the Justice Department has brought against people accused of taking part in the Jan. 6 insurrection attempt. “Essentially, none of those cases have gone to trial,” said Nichols. “They’re languishing a little but ... in this case, which is a misdemeanor and a non-detained defendant, the government wants to go at light speed.”

Nichols also suggested he doesn’t view the case as particularly urgent due to the House panel’s efforts to carry out its work quickly. He noted that the prosecution of Bannon isn’t a mechanism to get him to testify or turn over the subpoenaed documents. Though it’s rare for the DOJ to prosecute contempt of Congress cases, it’s also rare for witnesses to display the outright defiance that Bannon did in the lead-up to his indictment. The Jan. 6 committee subpoenaed him for documents and testimony in September, and Bannon refused to comply with either part of that request. Bannon faces a maximum penalty of a year in prison on each count. Each of the two misdemeanor charges include a mandatory minimum of 30 days in jail if convicted. The House committee is preparing to hold Mark Meadows, former president Trump’s chief of staff, in criminal contempt for not complying with the panel’s subpoena. Chairman Bennie Thompson (D-MS) told Meadows that the panel’s patience had run out and dismissed his argument that much of the information the committee sought was covered by executive privilege because it involved his duties as an aide to Trump.

 Man Who Killed Mesquite, Tx. Officer Is Identified

A man who police say fatally shot a Mesquite, Tx., police officer was identified as Jamie Jaramillo. Jaramillo, 37, is accused of killing officer Richard Lee Houston II outside a store on Friday. Houston was responding to a disturbance call about 1:40 p.m. when the shooting happened, and he died shortly after, reports the Dallas Morning News. Police in Balch Springs, Tx., where Jaramillo lives, said they've never arrested Jaramillo in the past. He faces one count of capital murder of a peace officer.

Houston went to talk to Jaramillo after speaking with Jaramillo's wife and daughter, and Jaramillo pulled a gun and shot at Houston before shooting himself in the head. Mesquite police said the suspect's wife was arrested in connection with the initial disturbance that prompted the call to police. Juventina Vasquez Bences, 43, was charged with aggravated assault with a deadly weapon and also has an immigration hold.

 PredPol Called for Police Patrols in Minority Areas

Between 2018 and 2021, one in 33 U.S. residents were potentially subject to police patrol decisions directed by crime prediction software called PredPol. The company that makes it sent more than 5.9 million crime predictions to law enforcement agencies across the U.S., report The Markup and Gizmodo, which say it found those reports on an unsecured server. Residents of neighborhoods where PredPol suggested few patrols tended to be Whiter and more middle- to upper-income. Many such areas went years without a single crime prediction. Neighborhoods the software targeted for increased patrols were more likely to be home to Black people, Latinos, and families that would qualify for the federal free and reduced lunch program. Crimes were predicted every day, sometimes multiple times a day, sometimes in multiple locations in the same neighborhood: thousands upon thousands of crime predictions over years. A few neighborhoods were the subject of more than 11,000 predictions. The software often recommended daily patrols in and around public and subsidized housing, targeting the poorest of the poor.

"Communities with troubled relationships with police—this is not what they need," said Jay Stanley of the American Civil Liberties Union. "They need resources to fill basic social needs." Neighborhoods in Portage, Mi., where PredPol recommended police focus patrols have nine times the proportion of Black residents as the city average. In Birmingham, Al., where about half the residents are Black, the areas with the fewest crime predictions are overwhelmingly White. The neighborhoods with the most have about double the city's average Latino population. In Los Angeles, even when crime predictions seemed to target a majority-White neighborhood, like the Northridge area, they were clustered on the blocks that are almost 100 percent Latino. About 35 miles outside of Boston, in Haverhill, Ma., PredPol recommended police focus their patrols in neighborhoods that had three times the Latino population and twice the low-income population as the city average. PredPol, which renamed itself Geolitica in March, criticized the Markup-Gizmodo analysis as based on reports "found on the internet." The company did not dispute the authenticity of the prediction reports. 

 NM Drug Court Won't Send Users to Jail

New Mexico Judge Jason Lidyard held his drug court sessions outdoors early in the pandemic after courthouses closed. At 40, he is among the state's youngest judges in the state, presiding over a district stretching from the capital of Santa Fe north to Colorado, an area of nearly 8,000 square miles. Most of his criminal docket is linked to substance abuse: Rio Arriba County has for decades reported overdose rates that are among the nation's highest. Drug and alcohol treatment courts have existed for more than 30 years and are heralded as the single most successful intervention for diverting people with addictions away from the criminal justice system. Nationwide, 150,000 people are enrolled in them. Participants are typically allowed to avoid jail if they plead guilty and begin a regimen of drug or alcohol rehab involving regular attendance at court, random urinalysis, and some combination of counseling and treatment. The judge is there to coordinate, cajole and, when necessary, coerce. The drug court model, once viewed as a progressive alternative to jail, is increasingly criticized for widening the net of social control. By their very existence, drug courts assert the implicit claim that addiction is a crime rather than a disease.

Lidyard's court diverges from many of his peers'. He does not expect his clients to abstain from using — in fact, he assumes the contrary. "I don't care if you're high, so long as you show up here," he tells one, reports New Mexico journalist Ted Alcorn for the Washington Post. Informed by childhood memories of his own father's addiction, he categorically refuses to use jail as a sanction. "Only two things will get you kicked out," he explains. "If you don't show up, or if you commit new crimes." For 50 years northern New Mexico has been at the front lines of the war on drugs; now it may be the vanguard of change. The effort is being led by individuals like Lidyard, who are determined to keep people with addictions out of the criminal justice system rather than allow them to be swallowed up by it. "Rio Arriba is my petri dish," he says. "What if we could actually use the criminal justice system to better people's lives?"

 First Black Minneapolis Police Chief Leaving in January

Medaria Arradondo, the first Black police chief of Minneapolis, will step down in mid-January. He led the department during police brutality protests after the death of George Floyd last year. Arradondo started as a patrol officer in 1989 and rose through the ranks until becoming chief in 2017, USA Today reports. His predecessor Janee Harteau, resigned amid outrage over the police killing of Justine Ruszczyk Damond. "After much personal reflection and thoughtful discussions with my family and Mayor [Jacob] Frey, I have made the decision that I will not be accepting a new term as chief of the Minneapolis Police Department," said Arradondo, 54. “To the city's 420,000 residents, it has been such an honor and humbling privilege to be your public servant for the past 32 years, and the past 4 1/2 as your chief." Frey said, "When the people of our city hear the words public service, I think they should think of Chief Arradondo and the work he has done through thick and thin and some of the most difficult moments that our city has ever experienced." 

Arradondo faced backlash over Damond's death and mistrust over the 2015 police killing of Jamar Clark. Arradondo was determined to restore trust. He has ordered reforms, including banning chokeholds, neck restraints and warrior training. Officers are now required to intervene in cases of improper force and are not allowed to review body camera footage before completing a report in deadly force cases. Voters in November rejected a proposal to replace the police department with a public safety unit. The department is one-third below its authorized size and has struggled with a spiking crime rate. “Now is the right time to allow for new leadership, new perspective, new focus and new hope to lead the department forward in collaboration with our communities,” Arradondo said. 

 Pipeline Firm Paying U.S. $15M for Oil-Contaminated Spill

The pipeline company responsible for the discharge of 29 million gallons of oil-contaminated "produced water" – a waste product of hydraulic fracturing – was sentenced to pay a $15 million criminal fine and serve a three year period of probation, the Justice Department says. The penalties were imposed by U.S. District Judge Daniel Traynor in Williston, N.D. Summit Midstream Partners LLC pleaded guilty to criminal charges that it violated the Clean Water Act by negligently causing the discharge in 2014, and deliberately failing to report the spill to federal authorities immediately, as required. More than 700,000 barrels were discharged, contaminating Blacktail Creek and nearby land and groundwater. The fine will go to the Oil Spill Liability Trust Fund used to respond and clean up future oil spills.

DOJ Assistant Attorney General Todd Kim said that the company "gave misleading and incomplete statements to the government about the duration and size of the spill." He said Summit "must implement more rigorous environmental management to prevent and detect future spills as a condition of probation." The spill occurred over 143 days. The criminal fine is in addition to a $20 million civil penalty imposed on Summit and a related company, Meadowlark Midstream Company LLC, to resolve civil violations of the Clean Water Act and North Dakota water pollution control laws. 

 Heated Debate Over Paying Separated Migrant Families for Trauma

The Trump administration's family separation policy was met with widespread condemnation in 2018 across party lines. Even Republicans like Ted Cruz and Melania Trump criticized it. Thousands of mothers and fathers are being detained in cells without any knowledge of the well-being of their children. Thousands of children do not know why they are being held in shelters. Years later many of these children still struggle with trauma from it. Some now are suing for damages, the New York Times reports. In late October, news reports said the Biden administration was negotiating settlements of up to $450,000 for migrant parents and children. Republicans and other right-wingers called the potential number impossible to believe.

The leaked number has been discussed but the exact figure has yet to be decided upon. Negotiations are expected to continue into 2022 and it is unclear who would be eligible for payments should a settlement be reached. Fewer than 1,000 of the 5,500 separated families have filed a tort claim. Republicans argue that the payments are unwarranted and offensive. Sen. Mitch McConnell, the Republican minority leader, accused President Biden of wanting to "literally make millionaires out of people who have violated federal law," Sen. Tom Cotton (R-AR) said the payments would surpass $1 billion and compared them to paying "damages to a burglar who broke into your home for the 'psychological trauma' they endured during the crime." Fox' Tucker Carlson accused the Biden administration of paying "reparations to illegal aliens," adding to the already contentious debate over compensating Black Americans for the effects of slavery.

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