Archive for December 2012
By David Kelston
This has been an exciting and challenging year for our chapter, as we hope the articles in this issue of Mass Dissent will show. Our involvement with the Occupy Movement, particularly with Occupy Boston (OB), has been intense and continuing, and we, like other chapters around the country, have essentially served as counsel to the movement. As Jeff Feuer writes in this issue, our Chapter’s Mass Defense Committee is gearing up now for the trials of 26 of the arrested OB activists whose cases from the end of 2011 still await disposition. We also continue in our role as unofficial legal advisors to the movement on issues that go beyond representing protestors.
All of our committee work has continued this year, and we include articles on our Litigation Committee work by the Committee Intern Kristen Wekony (four cases are pending, and we could file several more with additional attorney support); on our longstanding and important Street Law Clinic project by Yasmeen Peer; on four of seven NLG student law school chapters – Boston College, Harvard, Northeastern, and Suffolk; and on our monthly happy hour get-togethers – “NLG Presents…” and Mentorship – by Bonnie Tenneriello and Urszula Masny-Latos.
This year was the 75th anniversary of the National Lawyers Guild, and the October NLG National Convention in Pasadena, California, showed all of us just how integral Guild members are to many of the important struggles both in this country and abroad. First-time convention attendee Hannah Adams, a first year Northeastern Law student, writes about the conference – where Northeastern’s Margaret Burnham was a prominent honoree and Angela Davis was the keynote speaker.
There is much we are doing that we have not had room to write about in this issue, including:
• Our Advisory Committee work, where community activists meet quarterly with NLG lawyers and legal workers to educate ourselves on each others’ work and discuss how we can work together effectively. Committee participants this year have included BDS (Boycott, Divest, Sanctions), the Brazilian Immigrant Center, Boston Workers’ Alliance, City Life/Vida Urbana, Community Church, the Massachusetts Transgender Political Coalition, Occupy Boston, and Student Immigration Movement.
• Our Lawyer Referral Service which provides affordable legal assistance to low and moderate income people.
• Our participation in and sponsorship of panels and presentations, which have included panels on the Boston Regional Intelligence Center (and fusion centers and police spying in general), on the importance of lititation to produce policy change, and on immigration law at the Boston Latino International Film Festival.
Finally, a matter more challenging than inspiring – our finances. Our membership remains stable (at last count 283 dues-paying members, 173 non-paying jailhouse lawyers), as is our Sustainers Program – so important to our finances – with 29 current members; however, for the second year in a row we will operate at a deficit – despite the fact that this year’s “Annual Gala” at Villa Victoria was wonderful and a financial success. There is seemingly less grant money available for us, more dues-paying members whose practices face leaner times, and other factors that have tightened our finances. This year, as last, we can make the deficit up from savings, but deficit spending is not a long-term possibility for us. So, for all of you who appreciate what our chapter does, and the larger role of the National Lawyers Guild, you will soon receive your membership and sustainer renewal letters. Please, dig deep.
By Jeff Feuer
In previous years, our local chapter’s Mass Defense Committee (MDC) has been quite active throughout 2012 supporting the growing nationwide anti-foreclosure movement, fighting the disproportionate MBTA fare increases for disabled and low income residents, and continuing our defense of participants in the Occupy movement. The anti-foreclosure movement has been spearheaded nationally by Boston’s own City Life/Vida Urbana (CLVU), whose sword (bank protests, eviction blockades, boycotts, and publicity campaigns) and shield (legislation, litigation, and forming Bank Tenant Associations) strategy has spawned similar organizations in eight other cities in Massa-chusetts and Rhode Island, as well as in cities including Oakland, Chicago and Seattle. The MDC has continued to support the actions of CLVU and its sister groups in trying to prevent families from being unfairly evicted from their homes by conducting trainings for Legal Observers and in Civil Disobedience issues and by defending activists arrested during eviction blockades in Boston, Malden, Quincy, Brockton and elsewhere in eastern Massachusetts. In most cases, the volunteer Guild lawyers have been able to get the criminal charges dismissed outright or converted to civil infractions with the payment of a small fine. The MDC has made a commitment to providing pro bono criminal defense representation to all participants in organized anti-foreclosure/eviction blockade actions.
In the Spring of 2012, the MDC helped to train and support wheelchair bound activists who blocked the street in front of the State House in Boston as a protest against the 100% increase in fares to which disabled users of the MBTA were being subjected. The MDC also worked closely with the T-Riders Union in planning and carrying out non-violent confrontations with the MBTA Advisory Board concerning the fare increases.
The MDC has also been working throughout the year with 26 activists who were arrested at various times in October and December, 2011, while participating in the Occupy Boston movement. For many of the other OB participants who were arrested, the MDC has successfully gotten their charges dismissed or discharged with either a minimal fine or a brief pre-trial probation period. The OB defendants who did not want to accept a deal have been preparing for more than a year now for jury trials on the charges against them ranging from disorderly conduct to resisting arrest.
The volunteer Guild attorneys and law students on the MDC have been diligently fighting in court to obtain relevant discovery of the documents, videos and photographs of the police surveillance and actions taken against the Occupy Boston movement. The MDC has been quite successful in discovery motions, and the D.A.’s office has turned over a great deal of material concerning the government’s response to the Occupy movement. Through the jury trials, the OB defendants and the lawyers of the MDC working together hope to reveal and publicize the government’s violations of the constitutional rights of assembly and free speech which were at the heart of the Occupy movement.
The MDC continues to train and provide legal observers for a variety of progressive political events and demonstrations throughout the state, whenever we are requested to do so by activists and progressive groups. In addition to providing legal observers for demonstrations, MDC lawyers provide free clinics on legal rights/civil disobedience to groups and individuals who are planning on engaging in direct political action that could result in arrests.
Currently active members of the MDC include Susan Church, Andrew Fischer, Kevin Barron, Myong Joun, Dan Beck, Ken Diesenhof, Jeff Feuer, Lee Goldstein, Benjie Hiller, Doug Babcock, Matt Lallier, Beverly Chorbajian, and Neil Berman.
By Kristen Wekony
Since we formed the Litigation Committee in the spring of 2011, we have been actively involved in pursuing cases that promote social, political, and economic justice on the local level. We have had a successful year, effecting change in areas ranging from prisoners’ rights in Essex County to the unjust and alarming practices of the Boston Police Department affecting the rights of tenants in foreclosed properties in the state of Massachusetts. In addition, we are looking forward to developing a series of new projects in the coming year around similar goals.
For one of our first initiatives, the Litigation Committee, along with the American Civil Liberties Union of Massachusetts, initiated an action against the Boston Police Department, which brought into question the activities of its “Boston Regional Intelligence Center” (BRIC). BRIC is a regional domestic surveillance center designed to investigate potentially terrorist activity. As a result of this lawsuit, we have uncovered documents and video footage demonstrating the unsettling extent to which the Boston Police Department, through BRIC, has been routinely monitoring, spying, and reporting on ordinary citizens who are engaging in peaceful demonstrations. We published a report summarizing our findings on October 18, 2012, and we have also sent a letter to Boston Police Commissioner Ed Davis demanding that the police department immediately stop monitoring peaceful activists and organizations.
Then in October 2011, in collaboration with Prisoner Legal Services, we initiated a class action case against the Sheriff of Essex County for charging improper fees to inmates for routine medical screening. As a result, we are happy to report that the Essex County Sheriff has stopped charging the fees. In addition, the sheriff has expressed his intention to settle the case and return the fees to the affected individuals that can be identified.
Finally, the Massachusetts Chapter attorneys are currently representing two tenants living in foreclosed properties who were at one time at risk of eviction from their homes. We have successfully defeated the eviction actions against them due to Fannie Mae’s failure to follow proper procedure under M.G.L. ch. 186A, which establishes rights for tenants in foreclosed properties. Each violation of this statute is subject to a $5,000 penalty, but this penalty has never been enforced. These cases were no exception. In response, we have submitted motions to reconsider the decisions in both of these cases and will argue that the penalty should not only be imposed by the Housing Court, but should be awarded to the tenants directly. Uniform enforcement of this penalty will effectively deter banks from improperly evicting individuals and will provide monetary relief to the innocent victims of these violations.
Looking to the future, the Litigation Committee is investigating several new projects. First, we are researching the possibility of challenging marriage as an institution that promotes the inequitable distribution of key public benefits and rights. For example, the federal government has identified 1,138 federal statutory provisions that use marital status as a determinative factor in qualifying for federal rights and benefits. This alone raises a number of issues for the unmarried, including Social Security survivorship rights, income tax deductions and credits, and the right to care for a loved one under the Family and Medical Leave Act. Second, we are examining a potential lawsuit against a residential management company that operates across the state of Massachusetts and has been engaging in what we believe are unfair and deceptive practices. The company has routinely used “bait and switch” advertising tactics to lock potential tenants into high-rent apartments and has a reputation of extremely aggressive eviction practices. Third, we are examining the portrayal of Occupy Boston protestors in local news media, and in particular, whether peaceful protestors were depicted as violent or dangerous. Finally, we are considering bringing an action on behalf of female prisoners, challenging the disturbing practice of shackling inmates during labor.
The Litigation Committee has had an active year and is looking forward to developing new projects in the year to come. Thank you to all of our members and supporters.
By Yasmeen Peer
The Street Law Clinic Project brings the notion ‘knowledge is power’ to life through conducting workshops (trainings and clinics) on various legal issues and through sharing legal information with those who need it most, who often have no way to access it, to empower them in their daily lives.
The Project has a simple structure: NLG attorneys train law students to conduct clinics, and then trained students, accompanied by supervising attorneys, go to various community organizations and provide legal clinics. This year, we’ve offered seven clinics: Stop & Search, Workers’ Rights, Tenant/Landlord Dispute, Immigration Law, Foreclosure/ Eviction Prevention, Bankruptcy Law/Consumer Protection, and Civil Disobedience Defense.
Last spring semester was busy and filled with many SLC events. Jeff Feuer trained law students at Boston University in Foreclosure Prevention; Mark Stern – at Northeastern University in Workers’ Rights; and Makis Antzoulatos – at New England in Stop & Search. We also conducted a number of clinics and workshops for various community groups and campaigns: Anthony Keber provided an Immigration Law clinic at Cambridge Community Services. Hillary Farber, Jeff Feuer, and Urszula Masny-Latos conducted several Civil Disobedience and Legal Observer workshops for Occupy Boston, Occupy UMass Boston, Camp Charlie, and Occupy Charlie; Bradford Adams (law student at Harvard), Jeff Feuer, and Benjie Hiller conducted a Legal Observer Training in preparation for a protest in Boston against the MBTA fare hikes; Carl Williams conducted a Stop and Search Clinic for the NAACP and the Lawyers Committee for Civil Rights; and Jeff Feuer conducted a Civil Disobedience workshop in Boston for participants in the anti-NATO Summit in Chicago.
The SLC usually breaks for the summer as a result of the law students finally enjoying time away from law school – a brief liberation from studying most of the time and respite from endless to-do lists.
Despite commencing later in the fall than usual, trainings and clinics have been happening throughout the Boston area. In September, three Stop & Search Clinics were conducted; at the NAACP in Boston, by Carl Williams, and two in Taunton both conducted by Hillary Farber and Benjamin Evans, one for the Anti-War Coalition, the other for Our City Speaks – a civil rights organization. Later in the fall, law professor Melinda Drew conducted a Legal Observer Training for Northeastern law students which was well attended, and it inspired a lot of excitement and fresh commitment to the SLC and more generally to the NLG among the NUSL 1Ls in attendance, and reinvigorated 2L and 3Ls who had been patiently awaiting training to be a Legal Observer; Mark Stern conducted a Workers’ Rights training at New England School of Law that was widely attended and well received (in fact, the training’s success is reflected by the emails the SLC received the day after the training from NESL students who attended the training eager to volunteer and conduct upcoming Workers’ Rights clinics); Mark Stern also conducted a Workers’ Rights training for law students at Harvard.
At press time, we’ve been finalizing a Stop & Search training at Northeastern and several clinics in December, among them a Tenant/ Landlord Dispute clinic at St. Ambrose Family Inn.
We sincerely thank everyone who is part of our growing network of attorneys, law students, and community organizations who are involved in the Street Law Clinic project. However, the project would benefit from more NLG members participating. We invite all legal workers, attorneys, law students, and community organizations to join us in the important and critical task of increasing access to legal information for those who traditionally and historically have been pushed aside.
We hope to hear from you. Everyone involved in the project benefits from working with us, either as providers or as clinic attendees. Please contact us at firstname.lastname@example.org or call us at 617-723-4330.
by Isaak Kalish
In the past year, the Boston College National Lawyers Guild chapter has expanded its profile on campus and served as an outlet for progressive students in the wake of Occupy. Our branch was re-founded only a couple of years ago by James Racine and Jay Diaz, who saw the lack of a forum for BC Law students to confront the issues of systematic economic, gender and racial injustice within the legal system that we are rarely taught to approach critically. Since then, our chapter has grown with students from diverse backgrounds, and our biggest projects lay ahead.
Operating on a shoestring budget, BC NLG still managed to pull off a number of events this year not only to get students interested in the National Lawyers Guild but to get them to leave the dreary academic confines of law school assignments for a moment and join with others in ongoing struggles for social justice. Beginning in fall of last year, our branch hosted a legal observer training, mainly to assist Occupy Boston members who were being constantly harassed, arrested and surveilled by police. In the spring semester, we managed to put together a coalition of groups and pulled together our resources to send a large delegation to the Rebellious Lawyering Conference (RebLaw) at Yale University. Our members there got to connect with law students and others from places all over the United States and learn about how they can fight in struggles of environmental justice, mass incarceration, and movements to recognize the basic human rights of immigrant workers. After we returned and held a discussion to “decompress,” we quickly noticed that for a lot of us seeing hundreds of other law students and others dedicated to their causes at RebLaw was refreshing, and also that many students were exposed to issues of injustice they weren’t aware of before.
It’s been our goal for the coming year to keep feeding this new energy and dedication among our membership and push toward initiatives to educate ourselves and assist the community. In the next year, we hope to participate with the Massachusetts NLG chapter in street law clinics on stop and frisk policing, host speaking events on issues like the expanding ‘“homeland security” surveillance state with the NLG Litigation Committee, and to hold regular lunch time talks about current flashpoints of inequality and injustice in the law.
by Roxana Rahmani
The Harvard Law chapter of the NLG is working to build a larger and more dynamic chapter this year. We plan to host several street law clinics this fall and upcoming spring semester, and have speaker panels in the pipeline related to, among other topics, the public interest establishment.
In conjunction with Unbound: The Harvard Journal of the Legal Left, we are working to solicit article submissions addressing “the Occupy movement and the law” for publication in a special Occupy issue of the journal. The articles will focus on activists (“the law of the camp”) and the legal support (“the law and the camp”). We are helping to connect with Guild members across the country who have been involved in either or both capacities.
This year, Harvard NLG will also be the institutional home of Firmly Refuse, a campaign that calls out the law school as a corporate defense pipeline and to bring justice back to legal education. The campaign will continue to critique law school and the legal profession through events, flyers, and posters, many of which will attempt to critically narrate the 1L experience at Harvard Law School. Firmly Refuse has already expanded to Berkeley Law, and Harvard NLG hopes to similarly collaborate with other schools in Boston and across the country. Please support and follow our activities at firmlyrefuse.tumblr.com.
by Tasha Kates
At Northeastern, Momentum Beyond the Podium!
Law school teaches students how to understand legal reasoning and the law, but students at Northeastern University School of Law’s NLG chapter have extended those lessons beyond the classroom.
For the last three years, Northeastern NLG students have gravitated toward critical legal studies to supplement their classroom lessons. These student-created sessions have introduced new groups of students to everything from critical race theory to a different perspective on Torts.
The NLG chapter’s interest in critical legal studies began as recently as 2010, when a group of 1Ls sought a more accessible and understandable way of teaching and learning the law. With each influx of 1Ls into the Northeastern chapter, new life has been breathed into the idea of a more socially progressive perspective on legal education. In the last year, the Northeastern chapter has hosted a session with critical legal studies founder and Harvard Law School professor Duncan Kennedy about critical legal studies education. In the fall, Northeastern’s critical legal studies sessions focused on 1L course topics to invigorate and expand the minds of the school’s newest law students.
The chapter is interested in further expanding critical legal studies to everyone who enters NUSL, a goal that the students are striving for while continuing to work with other communities and causes. From supporting Northeastern’s cafeteria workers in creating a union to serving as legal observers at local demonstrations, Northeastern NLG students have continued to demonstrate their interest in helping the community with the skills they have gained in law school.
by Alyssa Baldassini
The Suffolk Law Chapter of the National Lawyers Guild has been reinstated and has just received recognition from the school. With the e-board solidified the group is now working on budgetary matters and recruitment.
In addition, the Suffolk NLG Chapter co-sponsored a presentation by JJ Rosenbaum on the “Importance of Leveraging Litigation Success to Produce Policy Change.” JJ Rosenbaum is the legal director of the New Orleans Center for Racial Justice and the National Guestworker Alliance. She discussed the success these organizations have enjoyed through purposeful litigation and political strategies. This event took place at Suffolk Law on November 8th.
On November 20th, our NLG student chapter hosted a social happy hour where law students could learn more about the NLG and find out ways to get involved with the organization. Other NLG student chapters in the Boston area were invited to the event.
Next year, at the beginning of the Spring semester, we aim to host at least one Street Law Clinic training for law students at our school interested in conducting the clinics.
By Bonnie Tenneriello
Putting the “social” back in social justice, every other month, Chapter members gather for “NLG Presents…” Happy Hour to discuss policy work and litigation over snacks and (optional) drinks at the Red Hat Cafe on Beacon Hill. In 2012, the guest speakers covered a wide range of topics, always followed by a lively discussion.
• March: The Guild was part of an effort to roll back or reduce the harm from “ 3 Strikes” sentencing legislation, which imposed harsher penalties for “habitual offenders.” Barb Dougan of Families Against Mandatory Minimum; Tatum Pritchard of Prisoners Legal Services, and Jamarhl Crawford of the Blackstonian and Occupy the Hood, discussed the issues and the strategies.
• June: Judy Somberg led a discussion about the history of United States intervention in El Salvador and the role that the U.S. may have played in the recent elections there. Judy had led a group of eight NLG members to observe the March 2012 legislative elections and recounted their experiences.
• October: Members of the Chapter’s Litigation Committee, Jeff Feuer, David Kelston, Urszula Masny-Latos, Jonathan Messinger, and Kristen Wekony (BU law intern), discussed the Committee’s work, including a lawsuit that has disclosed abusive police surveillance activities through documents from the Boston Regional Intelligence Center (BRIC) and Boston Police Department (as widely reported by the media a week later), two lawsuits to keep tenants in foreclosed homes, a lawsuit to stop Essex County Sheriff charging prisoners medial fees, and other promising areas for future litigation.
Stay tuned in 2013 for more sessions at the Red Hat Cafe, and please contact Judy Somberg (email@example.com) or Bonnie Tenneriello (firstname.lastname@example.org) if you have a suggestion for a future topic or speaker (including yourself!
By Urszula Masny-Latos
Alternating with “NLG Presents…,” the Chapter holds mentorship gatherings for law students and new attorneys and legal workers to meet other Guild members and engage in a conversation on legal topics that are of interest to students and legal professionals new to the trade. The conversations are led by NLG members who bring to the table their expertise, experience, and passion.
In 2012, we hosted the following presentations:
• February: NLG criminal defense attorneys, who choose different paths for their legal work, led a conversation on “Careers in Criminal Defense Law.” Laura Alfring talked about her work with Committee for Public Counsel Services Youth Advocacy Department, Makis Antzoulatos discussed his work as a public defender with CPCS, Susan Church shared her thoughts on how to open and maintain a successful criminal defense law office, and Hillary Farber discussed an option of joining legal academia and teaching law.
• April: Heather Ward (2008 law graduate, practicing family and consumer protection law) and David Conforto (2005 graduate, practicing employment law) gave a step-by-step presentation on “How to Go Solo and Open Your Own Law Practice.” They also discussed pros and cons for going solo, based on their experience.
• November: Nelson Brill, Iris Gomez, and Ilana Greenstein talked about different paths that students interested in immigration law can take. Iris Gomez has spent most of her professional life working for legal services or non-profits, Nelson Brill has been a successful solo practitioner based in Brookline, and Ilana Greenstein has worked for a medium-size immigration law firm since she graduated from law school in 1998.
The Mentorship Happy Hour gatherings are a wonderful way for NLG lawyers and legal workers to meet and mentor law students, and for students – to find a mentor or at least get information that might be useful. Join us on the second Wednesday of every month.
By Hannah Adams
Like so many of us, I came to law school hoping that a legal education would provide me with tools to support movements for social change. And as is true for so many of us when we embark on this journey, the last few months have been exciting and deeply challenging as I have been exposed to both the opportunities offered by litigation, and the ways in which the law and the institution of legal education represent barriers to the work that I and many of my classmates came here to do. Since my arrival at Northeastern our local NLG chapter has provided me with much-needed community, a connection to organizing and political work, and an outlet for critical conversations about the law and my law school experience.
Attending the NLG “Law for the People” convention in Pasadena this past month was an amazing experience for me. At the convention I connected with dozens of lawyers, legal workers, and law students whose work inspires me and reminds me of why I decided to come to law school.
I attended numerous sessions about the amazing movement work and organizing that the Guild and Guild members are involved in. Over the course of the weekend I attended a panel on how public defenders can support organizing against Stop and Frisk policies, a session on Guild attorneys responding to targeting of Muslim communities and Palestinian human rights activists, a panel on the landscape of immigration law post Arizona, et al v. United States, and a session on providing criminal representation to activist communities. Perhaps most exciting to me was the panel on “Labels and Legal Discrimination – Denying Basic Rights to People of Color.” The panel explored how the immigration and criminal justice/mass incarceration systems have constructed and perpetuated a racial caste system. As someone interested in disparate impact claims under the Fair Housing Act, I found the dialogue about legally sanctioned discrimination, strategic organizing for institutional change, and intersections between most-affected communities, to be deeply valuable.
I also enjoyed attending administrative sessions to get a sense of how the Guild operates behind the scenes, and meeting students from Guild chapters around the country at the Student Caucus. I learned more about the Guild’s history of movement work from a film tribute on Saturday, and I had the opportunity to do some valuable vocabulary building with other Guild members at an anti-racism training. Finally, I got to celebrate one of NUSL’s own, Prof. Margaret Burnham, when she was honored with the Ernie Goodman Award at the Saturday night banquet.
Midway through an academically and ideologically challenging first semester in law school, I found the inter-generational conversations I experienced and participated in at the Guild convention about the role of lawyers and legal workers in social movements to be moving and re-invigorating. I look forward to working with the Guild throughout my law school and professional career.
In January 2009, four Boston activists were arrested for trying to enter Israeli Consulate at the Boston Park Plaza. The activists were part of a large protest against Israeli attack on Gaza. The protest was observed by three NLG Legal Observers, and the NLG Mass Defense Committee represented the arrested activists and had their charges eventually dismissed.
While in jail, each of the arrestees was interrogated for 20-30 minutes by three plain-clothes officers. The NLG Litigation Committee sent a letter to the Boston Police Department requesting transcripts of these interrogations. The request was denied, which prompted us to file a FOIA request for each of the four activists. The requests were not answered, so the NLG partnered with the ACLUM and, in August 2011, filed a lawsuit charging the BPD with withholding public documents. As a result of the lawsuit, BPD has released documents which show widespread spying practices and labeling of peaceful activities as “criminal” or “domestic terrorism.” Below is an excerpt from a press release issued in October which accompanied the release of BPD and BRIC (Boston Regional Intelligence Center) documents obtained through the lawsuit.
Records reveal Boston Police spy on political and peace groups
Officers monitor peaceful activists, labeling legal activities as “extremist” and “homeland security” threats.
Thursday, October 18, 2012
BOSTON — Boston Police routinely spy on ordinary citizens engaged in peaceful, First Amendment-protected activity, creating criminal “intelligence reports” on lawful political activity of peace groups and local leaders, according to public records and surveillance video released today by the National Lawyers Guild Massachusetts Chapter and the American Civil Liberties Union of Massachusetts.
Boston Police officers make video recordings of peaceful demonstrations and track activists as well as the internal workings of political groups–even when there is no indication of criminal activity or a threat to public safety. The documents reveal that officers assigned to the BPD’s regional domestic spying center, the Boston Regional Intelligence Center (BRIC), file so-called “intelligence reports” mischaracterizing peaceful groups such as Veterans for Peace, United for Justice with Peace and CodePink as “extremists,” and peaceful protests as domestic “homeland security” threats and civil disturbances. These searchable records are retained for years, in violation of federal regulations, and were turned over to the ACLU and NLG only after they sued for access on behalf of local peace groups and activists.
One police report, dated March 23, 2007, for example, details a church panel in Jamaica Plain organized by a former Boston City Councilor and an anti-war rally on the Boston Common featuring the late Boston University Professor Howard Zinn, under the label: “Criminal Act: Groups-Extremist.”
“Spying on church groups and peaceful, non-violent, political gatherings violates civil liberties, wastes scarce police resources and doesn’t keep us safe,” said Carol Rose, Executive Director of the ACLU of Massachusetts. “Such tracking and retention of documents about people and groups engaged in peaceful assembly and constitutionally protected speech violates the Boston Police Department’s privacy rules, federal privacy regulations and our democractic system of government.”
“We are becoming a country with characteristics typically seen in the most undemocratic states–where police and other law enforcement forces assume unlimited powers over the people,” said Urszula Masny-Latos, Executive Director of the National Lawyers Guild. “At a time when schools are inadequately funded, roads and bridges are falling apart and all social services are experiencing severe cuts, we are showering law enforcement agencies with unprecedented resources, which are used to harass, intimidate and monitor the public.”
In late 2010, several organizations and activists filed public requests seeking to understand BPD’s surveillance practices and privacy protections. When the BPD refused to turn over the public records, the ACLU and NLG filed suit. Plaintiffs included Political Research Associates, Veterans for Peace-Chapter 9 Smedley Butler Brigade, CodePink of Greater Boston, the Boston Coalition for Palestinian Rights, the Greater Boston Stop the Wars Coalition and United for Justice with Peace, as well as individual activists.
To view the documents as well as a short video, and our report analyzing the documents, go to: http://www.nlgmass.org.
By Makis Antzoulatos
Paul Butler, a professor at Georgetown University School of Law, wrote a Yale Law Review article in 1994 titled Racially Based Jury Nullification: Black Power in the Criminal Justice System. In the article, Butler argued that jurors could use nullification as a way to attack a white supremacist criminal justice system. He proposed that jurors think about cases as being in three distinct categories: violent crimes (for which nullification is never an option); non-violent/victim crimes (for which nullification should be considered); and non-violent/victimless crimes (for which there should be a presumption in favor of nullification.
Jury nullification conjures up images of right-wing extremism, and we are forced to remember countless southern juries who acquitted defendants charged with acts of racist violence. This imagery is not helped by the fact that the most vocal proponents of jury nullification in the 20th century have been right-wing libertarians like Ron Paul. However, as with most tools, nullification becomes a tool of oppression or of liberation, depending on whose hand wields it, and Butler reminds us of the abolitionist jurors who used nullification as resistance to the Fugitive Slave Act.
The power of a jury to nullify remains one of the more mysterious rights of the criminal jury. Starting with Sparf v. United States, 156 U.S. 51 (1895), the courts have consistently held that while a jury has the right to nullify, a defendant does not have the right to inform them of this power, either through jury instructions or in closing argument. This stands at odds with a wealth of scholarship supporting the historical proposition that the jury was envisioned as both an arbiter of facts and a judge of laws.
Yet another obstacle of nullification is realized in the rules which present a defense attorney from informing a jury of the potential sentence a defendant faces. In a brilliant 236 page decision in U.S. v. Polizzi, 549 F.Supp.2d 308 (2008), Judge Weinstein ruled that a jury had a right to know of the mandatory minimum sentence a defendant faced. By weaving together a historical analysis of the role of the jury, along with more recent 6th Amendment decisions, most notably U.S. v. Booker, Judge Weinstein makes a compelling argument that a jury’s decision must be informed by the potential penalty a defendant faces. This decision was reversed by the 2nd Circuit.
For 20 years, Paul Butler has advocated for jury nullification as a strategy of resistance to the mass incarceration of poor people and people of color. The War on Drugs represents the most aggressive tactic in the government’s strategy of mass incarceration. A national poll conducted by Families Against Mandatory Minimums found that 60% of Americans oppose mandatory minimums for some non-violent crimes. In addition to waging legislative battles against draconian sentencing for drug crimes, jury nullification is an effective tactic at fighting back against the War on Drugs.
One obvious method of exploiting the jury’s hidden power is through public education campaigns. We can educate potential jurors about their right to nullify, and use Butler’s framework as a suggested mechanism to ensure that nullification is carried out in a way that is morally acceptable to the public. A second strategy would be to look towards developments in New Hampshire, where HB-146 was recently passed giving defendants the right to inform juries of the power to nullify. This law was signed by the Governor on June 18, 2012. Just three months later Doug Darrell was acquitted of growing fifteen marijuana plants after the judge explained to the jury, “even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.”