Federal Bureau of Investigation (FBI)

Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases

On November 5, the Hennepin County District Court issued five significant orders regarding the joint criminal trial of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao over the killing of George Floyd. These orders (1) granted the State’s motion for a joint trial of the four defendants; (2) preliminarily denied the defendants’ motions for change of venue; (3) provided for juror anonymity and sequestration; (4) allowed audio and video coverage of the trial; and (5) narrowed its previous order regarding four members of the Hennepin County Attorney’s Office’s participation in the cases.[1]

On November 16, various motions and briefs were submitted objecting to the recent orders for a joint trial and allowing audio and video coverage of the trial as well as the pending motions for allowance of evidence of prior incidents of the four defendants and of Mr. Floyd. The most significant of these papers, in this blogger’s judgment, was Thomas Lane’s motion for reconsideration of the order for a joint trial of the four defendants, which, therefore, will be discussed first.

Lane’s Motion To Reconsider Joinder for Trial[2]

Lane argued that the order for joinder is premature as it does not consider the prejudice that will be caused by admission of evidence of prior incidents involving the other three defendants, none of which involved Lane.

Most significantly, Lane asserted that his defense will be antagonistic to Chauvin in that he will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. (Emphasis added.) (This is believed to be the first time that any of the defendants has pointed the finger at Chauvin, the principal actor in the death of Floyd.)

Moreover, said Lane’s attorney, the Court’s opinion regarding aiding and abetting liability was erroneous since it was inconsistent with a 2014 opinion of the U.S. Supreme Court, which, among other things, said such liability requires the defendant to have “advance knowledge that a crime is being committed.” (Emphasis added.)[3]

Finally, according to Lane’s attorney, a recently disclosed FBI report about its July 8th interview of Hennepin County Medical Examiner, Dr. Andrew Baker, contains significant points helpful to Lane and the other defendants.. Here are this blogger’s extracts of that report with emphasis on the points helpful to the defendants.

Baker’s office’s press release about its examination of Floyd’s body apparently mentioned ”cardiopulmonary arrest,” which “for a lay person would be the stopping of the heart and lungs. Other factors that contributed to Floyd’s cardiopulmonary arrest included hypertension, the presence of fentanyl and methamphetamine, as well as arteriosclerotic heart disease.”(P. 038777) (Emphasis added.)
“The term ‘complicating’ in the case title was a medical term meaning occurring after, during, or as a result of.” (P. 03877)

“Baker defined the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion involved in Floyd’s interaction with police prior to being on the groun” (Pp. 038777-78.) (Emphasis added.)
“There was no evidence that Floyd’s airway was literally blocked shut. When viewing the body camera footage, the pressure did not appear to be directly over Floyd’s airway. Floyd would have been unable to speak if pressure was directly over his airway.” (P. 03778.) (Emphasis added.)
“Officer Chauvin’s positioning on Floyd’s body does not fit anatomically with occluding Floyd’s airway.” (P. 038778.) (Emphasis added.)
“There was no anatomic evidence of injury to Floyd’s neck but that does not rule out that pressure was applied by Chauvin.” (P. 038778.) (Emphasis added.)
“The absence of petechiae weighs against strangulation.” (P. 038778.) (Emphasis added.)
“Baker noted that that Floyd had no injury to . . .[his lower buttocks or upper end of Floyd’s thigh which were being held by Kueng].” (P. 038778) (Emphasis added.)
Baker noted that there was no relation to Floyd’s cause of death by Lane’s position [on Floyd’s feet].” (P. 038778.) (Emphasis added.)
“The struggle between officers and Floyd weighed into Baker’s opinion because physical exertion increases heart rate, releases adrenaline, and increases respiratory rate as well as cardiac demand. All of these things increased the likelihood of a bad outcome.” (P. 038778.)
“Baker had no opinion on when Floyd became critical or near death.” (P. 038780.) (Emphasis added.)
“Baker did not believe that the prone position was any more dangerous than other positions based on an article or journal he had read. “ (P. 038780.) (Emphasis added.)
“Baker could not provide an answer on a ‘but for’ cause [of death]. (P. 038781.) (Emphasis added.)
“Absent suspicious circumstances, if Floyd had been found dead in his bed with the level of fentanyl in his blood that was present for this autopsy, it may be classified aa fentanyl fatality due to the level of fentanyl.” (P. 039781.) (Emphasis added.)
“When a death was labeled a homicide, it was not a legal ruling being made. The label was classified as such for public health reasons.” (P. 0388782.) (Emphasis added.)

Parties’ Battle Over Evidence of Defendants’ Prior Incidents[4]

The State previously had argued for admission of evidence of eight separate incidents involving Chauvin’s actions in the course of his duties as a Minneapolis Police Officer. On November 16 the State submitted a supplemental argument in support of such evidence in light of its obtaining the body worn camera videos for one of those incidents that are relevant to show modus operandi, intent and lack of mistake and rebut any defense of reasonable use of force and that their probative value outweighs any potential unfair prejudice.

Lane’s objection to such evidence was just discussed.

In addition, Chauvin’s attorney argued that these incidents are inadmissible to show his intent in the Floyd case or his alleged knowledge of the need to move Floyd from the prone position or a common scheme or plan or modus operandi and that evidence of such incidents is cumulative and unfairly prejudicial.

State’s Objection to Evidence of Floyd’s Prior Incident with Minneapolis Police[5]

All Defendants intend to offer evidence of George Floyd’s May 6, 2019, incident with the Minneapolis Police Department even though the Court at the September 11, 2020, hearing held that such evidence was inadmissible. The State said the Court’s prior decision was correct and that the defendants intend to offer this evidence at trial was for the improper purpose of attacking Floyd’s character and suggesting he had a propensity to commit crimes or should be punished for his prior actions; that the prior incident does not show Floyd’s common scheme or plan in the incident that led to his death; that his state of mind in the prior incident is irrelevant; that the unfair prejudice of evidence of that prior incident far outweighs its probative value and that the defendants’ other arguments for such evidence are unpersuasive.

State’s Objection to Audio and Video Trial Coverage[6]

The State asked the Court for reconsideration of its order for audio and video coverage of the trial. The motion provided no reasons for that motion other than its previous objection to such coverage under Minnesota Rule of Criminal Procedure 4.02(d) and a brief to be filed on or before November 30.

A StarTribune editorial, however, supported this court order. It said, “It is in the best interest of trial participants and the public for this high-profile trial to be as accessible as possible. . . . [Judge] Cahill’s ruling is well-reasoned and fair.”

Reactions

An important reason for the Court’s November 5^th order for a joint trial of the four defendants was there was no indication at that stage of the proceedings “that any of the Defendants is likely to be prejudiced by joinder because their defenses are not antagonistic but instead are mutually supportive.” Now, however, Defendant Lane has stated that his defense will be antagonistic to Chauvin in that Lane will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. This latest statement, therefore, is a serious challenge to the wisdom of a joint trial.

In addition, Lane’s disclosure of the FBI memorandum of its interview of the Hennepin County Medical Examiner, assuming it accurately reflects what the Examiner said, provides boosters for the defense and problems for the prosecution.

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[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020).

[2] Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Exhibit A [FBI Memorandum], Lane Objection to Spreigl and Motion to Reconsider Joinder Order, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020).

[3] This case was Rosemond v. United States, 572 U.S. 64 (2014), which requires close analysis.

[4] State’s Supplemental Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Chauvin’s] Objection to State’s Proposed Introduction of Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Kueng’s]Objection to the State’s 404(b) Evidence, State v. Kueng, Court File No. 27-CR-20-12953 Nov. 16, 2020); Defendant’s [Thao’s] Memorandum in Opposition to State’s Motion for Spreigl Evidence Against Mr. Thao, State v. Thao, Court File No. 27-CR-20-12949 Nov. 16, 2020); Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Jany, Seeking to show pattern of excessive force by Chauvin, prosecutors cite incident with 14-year-old boy who couldn’t breathe, StarTribune (Nov. 17, 2020);Bailey, Former Minneapolis police officer charged in George Floyd’s death seeks to bar evidence of past neck and body restraints, Wash. Post (Nov. 17, 2020).

[5] State’s Response Opposing Defendants’ Motions To Admit Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020).

[6] State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020) State asks judge to reconsider permission for audio, video coverage of officers’ trial in George Floyd Killing, StarTribune (Nov. 16, 2020); Editorial, A victory for courtroom access in George Floyd case, StarTribune (Nov. 17, 2020).

Defendant Thao Interviewed About George Floyd by Bureau of Criminal Apprehension

According to the StarTribune, on or about June 2 (“eight days after George Floyd’s killing on May 25^th”), then Minneapolis police officer Tou Thao, before he had been criminally charged, was interviewed for about 100 minutes regarding the George Floyd arrest and killing, by the Minnesota Bureau of Criminal Apprehension (BCA) and the Federal Bureau of Investigation (FBI). The video of that interview is now part of the public file of his criminal case. [1]

Again according to the StarTribune,Thao in this interview first was “questioned about his professional history before spending about 12 uninterrupted minutes summarizing his encounter with George Floyd on that fateful day. Then Thao was questioned by a BCA special agent.

Here we will review details of that BCA interview.

Thao’s Own Summary

In his own summary, Thao said he and officer Derek Chauvin responded to a call for backup near Cup Foods. The call sounded urgent and their squad car was the ony one available. About half-way there, the dispatch was ended, but the two of them decided to go anyway because of their experience that Cup Foods was often a gang hang-out hostile to the police and because the officers already there (Thomas Lane and J. Alexander Kueng) were “rookies.”

When they arrived, the rear driver-side door of the other squad car was open. Kueng told them that the suspect had refused to sit in the rear seat of the squad car and had gotten himself out of the car. The suspect was not calm and appeared to be “high” on something.

A crowd was gathering, and Thao called to change the call for an ambulance from “Code 4” (Situation under control) to “Code 3” (“EMERGENCY SITUATION – To be answered immediately, but in a manner enabling the responding units to reach the scene as quickly and safely as possible. MS 169.03 and 169.17 require the use of red lights and siren for emergency”). Thao hoped the medics could provide a better assessment and restraint of the suspect.

Thao and the three other policemen decided not to “hobble” the suspect, i.e. use a Hobble Restraint device with nylon webbing, heavy-duty metal swivel hook and self-locking jawed alligator clip.

Thao focused on traffic and a “loud and hostile” crowd by putting himself between the crowd and the other three officers and suspect in order to prevent the crowd from attacking the other three officers. “As the crowd is starting to grow and become loud and hostile toward us, I decided to forgo [monitoring] traffic and put myself in between the crowd and the officers … and just spend the majority of my attention looking at the crowd — make sure they don’t charge us or bull rush us as the officers on the ground are defenseless,” Thao said, adding that he was a “human traffic cone.”

Eventually the ambulance arrived and Lane left with the suspect in the ambulance.

As the StarTribune noted, during his own summary, Thao did not mention anything about what the other three officers were doing or what the suspect was saying.

BCA’s Questioning of Thao

When Thao and Chauvin were driving to Cup Foods, they were told someone who had appeared to be intoxicated had passed a “fake bill.” No recall of any mention of weapons or violence.

When they arrived, the suspect already was handcuffed. Thao did not think of any alternative way of restraining the suspect. He was just backup. He did not suggest just talk with the suspect, whom he never touched.

Thao had had Crisis Intervention Training (CIT), and he had used it before, But he did not suggest doing that because he did not know what already had happened.

Nor did Thao check on the suspect at any point. “No, because my job is scene security. I would trust [the other officers] . . . God gave me only one body and two hands and two legs. I can’t be in two places at once.”

He hoped the paramedics would know what to do. They could restrain the suspect better. Just hold him down without handcuffs.

Thao did not hear Lane say anything about “excited delirium.” From his training, Thao believed “excited delirium” was a mental health or drug-related condition when someone acts erratically with no apparent self-awareness and potentially is explosive or violent.[2]

Thao did hear the suspect say he couldn’t breathe, but he was talking, which meant he was breathing.

Thao saw Chauvin struggling with the suspect. At some point he saw Chauvin’s left knee on the suspect’s neck. There is a specific technique for use of a knee that was taught in training. Thao has never used that technique and had never seen Chauvin use it before.

Most of the time Thao was focused on traffic and the crowd, which at some point said the suspect was not moving. Thao assumed the other officers would take appropriate action.

After Floyd and Lane left the scene in the ambulance, Kueng recommended that they lock up the vehicle Floyd had been driving and leave it parked on the street. Thao thought Kueng did not recognize the potential gravity of the situation so Thao responded, “We’re not going to leave the scene” and took steps to secure the car and the scene as evidence.

Later when he was told that the suspect [Mr. Floyd] had died, Thao said, “I didn’t want anyone to die. It was kind of a somber moment, especially for me. My heart kind of sank.”

At the very end of the interview, Thao was asked, “Do you think you could have done something differently to intervene?” His response: “I’m under the belief that you can always do something differently on every single call… I guess I would be more observant toward Floyd.”

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[1] Xiong, Officer charged in George Floyd’s killing tells investigators his job wasn’t to check on Floyd, video shows, StarTribune (Aug. 15, 2020); Raiche, Former MPD officer Tou Thao reveals to investigators what he could’ve done differently in Floyd case, KSTP.com (Aug. 14, 2020); Shen, Minneapolis cop Tou Thao told investigators he feared George Floyd ‘would have superhuman strength if he was on drugs’ and admits ‘his heart sank’ when he died on the sidewalk, dailymail.com (Aug. 15, 2020); Assoc. Press. Officer minimized role in Floyd’s death during questioning, StarTribune (Aug. 15, 2020); BCA interview with Tou Thao after George Floyd killing is released, StarTribune (Aug. 15, 2020) (video); Exhibits Attached to Affidavit of Matthew Frank, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Aug. 12, 2020) (Ex. 4 (Thao BCA Interview on flash drive)).

[2] Three distinguished medical scientists have said that “excited delirium” is “pseudoscience.” (See Concept of “Excited Delirium” Is Junk Science, dwkcommentaries.com (July 21, 2020).)

Cuba’s Latest Commentary on “Alleged” Health Incidents Affecting U.S. Diplomats in Cuba

On April 26 Granma, the official newspaper of the Communist Party of Cuba, published what it called “the 10 most common lies about alleged health incidents affecting U.S. diplomats in Cuba.”[1] Here is an analysis of the truth of those assertions without attempting to assess whether there have been lies about these assertions.[2]

U.S. DIPLOMATS WERE VICTIMS OF “ATTACKS” IN CUBA

GRANMA: “The use of the word “’attack”’implies a certain position with regard to the incidents. Neither Cuban or U.S. authorities have been able to identify the origin or cause of the alleged incidents, which are by their very nature profoundly sensationalist. “

GRANMA: “An FBI report leaked by Associated Press noted that there is no evidence of a ‘sonic attack’ against U.S. diplomatic personnel in Cuba. Nor have those working the case been able to identify possible authors or persons with the motive, intent or means, to carry out such actions.
If this were a court trial, the case would be missing a perpetrator, the device, and victims. Despite this, the international press and White House, continue to use the word “’attack..’”

RESPONSE: It is true that neither the U.S. nor Cuba publicly has identified the origin or cause of the health problems some U.S. diplomats have experienced in Cuba, but there is enough public information to support the contention that there have been some adverse health problems. Thus, it is inappropriate for Granma to suggest that there have been no adverse effects. It also is true that some U.S. officials use the word “attack” to refer to these incidents, and the public record to date does not support such a contention.

CUBA POSESES A STATE-OF-THE-ART “SONIC DEVICE

GRANMA: “Since the story hit the headlines the theory has circulated that a state-of-the-art sonic weapon could be responsible for the incidents. However, this has been overwhelmingly refuted by national and international scientists.”

GRANMA: “Although sonic weapons do exist, above all in the arsenals of developed countries, for audible sound to cause damage, it would need to be as loud as plane engine and would be impossible to go undetected.”

GRANMA: “Cuba meanwhile, has categorically denied that it owns, has any knowledge of, or is familiar with such technologies.”

RESPONSE: It is true that some of the public articles have mentioned the possibility that some state-of-the-art sonic device could be responsible for the adverse medical issues of some U.S. diplomats, that there has been no public identification of such a device and that Cuba has denied that it owns, has any knowledge of or is familiar with such a device. It, therefore, would be unjustified (based on the current public record) to assert that Cuba has such a device.

TARGETED ATTACKS
GRANMA: “It seems unlikely that the alleged incidents would have occurred where they reported to have taken place: including sites guarded by the U.S. itself and without direct access from outside. The attacks would have had to have laser-like precision to affect a specific individual without also causing damage to others.”

RESPONSE: This assertion is difficult to evaluate from the outside. At most, whether or not there have been targeted attacks is at most a contention or allegation without any public evidence to prove or disprove the contention.

VICTIMS SUFFERED BRAIN DAMAGE

GRANMA: “The symptoms cited by U.S. diplomats include ear pain, loss of hearing, dizziness, headaches, fatigue, cognitive problems, difficulty sleeping, and the most mysterious of all, brain damage.”

GRANMA: “Experts have noted that there is no documented medical case of sound leading to concussions or cognitive problems. According to “Joseph Pompei, a former MIT researcher and psychoacoustics expert, “Brain damage and concussions, are not possible… Someone would have to submerge their head into a pool lined with very powerful ultrasound transducers.”

RESPONSE: It is true that public information indicates that some U.S. diplomats who had served in Cuba have reported the mentioned symptoms and that there have been public articles about possible causes. Joseph Pompei, a former MIT student, was quoted in a public article that it was impossible for some secret sonic weapon to cause concussions, brain swelling and other symptoms, but that same article quotes Vince Houghton, the curator of the International Spy Museum, as speculating that “the most likely scenario is . . . a beta test of new Russian technology that went bad.” (Birnbaum, A secret sonic weapon in Havana? Scientists say ‘no way,’ PRI’s the World (Oct. 3, 2017).) For this outsider, there has been no definitive medical or scientific conclusion on this issue.

MEDICAL REPORT SUPPORTS WASHINGTON’S THEORY

GRANMA: “On February 14, a controversial article was published in the Journal of the American Medical Association (JAMA) entitled: Neurological Symptoms Among U.S. Diplomats in Cuba. The text has been used to lend scientific credibility to Washington’s theory. However, authors Christopher C. Muth and Steven L. Lewis noted that ‘a unifying explanation for the symptoms experienced by the U.S. government officials (…) remains elusive and the effect of possible exposure to audible phenomena is unclear.’’”

GRANMA: “The study concludes in very general terms stating that diplomats seem to ‘have sustained injury to widespread brain networks.’”

GRANMA: “According to an article in The Guardian, Robert Bartholomew, an expert in mass psychogenic illness (MPI) who teaches at Botany Downs Secondary College in Auckland, New Zealand, said he was “’lured by the study’ and claims that it reads like U.S. government propaganda. ‘It’s like the authors are trying to get us to believe an attack has occurred,’ he noted. Meanwhile, the committee of Cuban experts assigned to the case explained that the information provided has mainly been subjective, based on the statements of those affected, and the opinion of investigators, while objective data (medical exams) are insufficient and incomplete.”

RESPONSE:The JAMA article reported on examinations of 21 of the 24 individuals with symptoms by University of Pennsylvania physicians that found that the patients “appeared to have sustained injury to widespread brain networks” and “persistering disability of a significant nature.” Drs. Muth and Lewis, who were not involved in the study, urged “caution in interpreting the findings.” (Medical Report on U.S. Diplomats with Health Problems Occurring in Cuba, dwkcommentaries.com (Feb. 16, 2018).)

RESPONSE: Granma sets forth an accurate quotation by Robert Bartholomew. (Sample, Fresh row over mysterious sickness affecting US diplomats in Cuba, Guardian (Feb. 24, 2018).) In an earlier Guardian article, however, Bartholomew was quoted as saying, ““None of this makes sense until you consider the psychogenic explanation.” (Borger & Jaekl, Mass hysteria may explain ‘sonic attacks’ in Cuba, say top neurologists, Guardian (Oct. 12, 2017).

RESPONSE: This Granma assertion does not prove a lie. It merely points out that there are disagreements by various experts about what happened without resolving those disagreements.

AN “ATTACK,” THE ONLY EXPLANATION

GRANMA: “Psycho-social factors have also been put forward as a possible cause for the alleged incidents, which would explain the variety of symptoms cited by Washington. In an online forum about the case, Cuban experts noted that an in-depth study of all possible causes must be carried out before forming an opinion.”

GRANMA: “Meanwhile international experts agree that: “From an objective point of view it’s more like mass hysteria than anything else,” according to Mark Hallett, the head of the human motor control section of the U.S. National Institute of Neurological Disorders and Stroke, who noted, “Psychosomatic disease is a disease like anything else. It should not be stigmatized.”

RESPONSE: Granma’s assertions do not prove the alleged lie of an “attack” being the only explanation. It merely points out some of the explanations that have been offered.

CUBAN AUTHORITIES REFUSE TO COOPERATE

GRANMA: “Ever since the alleged health incidents were first reported in February 2017, Cuban authorities have dealt with the issue in a timely, serious and professional manner. Cuba even allowed FBI experts to conduct investigations on the ground on several occasions, all of which failed to find any evidence of the supposed attacks.”

GRANMA: Meanwhile, the committee of Cuban experts working the case encountered difficulties due to a lack of cooperation from U.S. authorities, who failed to share all available information, and denied Cuban authorities access to patients and their medical records.

RESPONSE: The public information confirms the assertions that Cuba has cooperated with the U.S. investigation, including having the FBI come to Cuba as part of its investigations and that Cuban authorities have not had access to the U.S. patients and their medical records. But this does not prove that the U.S. has asserted that Cuban authorities have refused to cooperate.

DIPLOMATS ARE AT RISK IN CUBA

GRANMA: “Cuba is renowned for its adherence to the Vienna Convention and has never perpetrated attacks of any kind against diplomatic personnel from any country, or allowed its territory to be used to do so.”

GRANMA: “Meanwhile, Cuban diplomats have been the victims of acts of violence in the U.S. orchestrated by members of well-known terrorist groups with links to Washington.”

GRANMA: “One of the most famous cases is that of Cuban diplomat Félix García Rodríguez, who was murdered in broad daylight by members of the Omega 7 terrorist group, on September 11, 1980, while serving at the country’s United Nations mission in New York.”

GRANMA: “Cuba, faced with the threat of war or in moments of great tension, has never opted for violence. Why would it do so after making the sovereign decision to reestablish diplomatic relations with Washington?”

RESPONSE: Yes, Cuba repeatedly has asserted that Cuba seeks to comply with the Vienna Convention on Diplomatic Relations, but that does not prove that Cuba did not put U.S. diplomats at risk. As previously noted, both countries have repeatedly stated that the matter is still unresolved. The earlier alleged incidents involving Cuban diplomats in the U.S. is irrelevant to the current controversy.

SOUTH FLORIDA POLITICIANS ONLY CONCERNED FOR THE WELFARE OF U.S. DIPLOMATS

GRANMA: “Sectors opposed to rapprochement between the two nations have been manipulating the issue of the alleged health incidents to justify a reversal in the process to improve U.S.-Cuba relations and advance their own agenda.”

GRANMA: “The politicization of the case, which recently led to unilateral measures by the U.S. government, only benefits a small group of right-wing anti-Cubans, led by Marco Rubio, which continues to promote a hostile policy toward the island – against the interests of the country and its citizens.”

RESPONSE: Agreed that Senator Rubio and certain other politicians from South Florida consistently have opposed normalization of relations with Cuba and have used the medical problems of U.S. diplomats as another excuse as purported justification for their position. This blogger, however, consistently has supported normalization and reconciliation of the two countries.

TOURISTS AT RISK

GRANMA: “As part of the political manipulation of the case, the White House alleged that in September of last year a dozen U.S. citizens who had traveled to Cuba, also experienced symptoms similar to those of the diplomats.”

GRANMA: “But bearing in mind that terms as general as dizziness and headaches are used, one can appreciate the absurdity of the accusations.”

GRANMA: “Over four million international visitors traveled to Cuba last year, including 620,000 U.S. citizens. Their experiences on the island and satisfaction, according to specialist surveys, is proof of Cuba’s tranquility, security, and stability, which has been recognized by international organizations such as the UN and other tourism agencies.”

RESPONSE: On September 29, 2017, the U.S. Secretary of State said,, “We have no reports that private U.S. citizens have been affected, but the attacks are known to have occurred in U.S. diplomatic residences and hotels frequented by U.S. citizens.”(Medical ‘Incidents’ Affecting U.S. Diplomats in Cuba Prompt U.S. To Reduce Staff at Havana Embassy and Urge Americans Not To Travel to Cuba, dwkcommentaries.com (Sept. 30, 2017).)

But on October 6, 2017, an unnamed State Department official said, “Since we issued the September 29 Travel Warning, we have received a handful of reports from U.S. citizens who report they experienced similar symptoms following stays in Cuba. We have no way of verifying whether they were harmed by the same attacks targeting official U.S. employees.” (U.S. Embassy in Cuba Issues “Hotel Restrictions in Havana” Security Message, dwkcommentaries.com (Oct. 7, 2017).)

Agreed that a large number of Americans have visited Cuba without experiencing any of the medical problems at issue.

CONCLUDING RESPONSE

While both countries’ frustration with the non-resolution of this situation is perfectly understandable, calling the other side liars is unfounded because neither side has grounds for saying that the other is saying something that it knows is untrue. Moreover, calling the other side liars does not aid in resolving the disputes.

As a prior post reports, but the Granma article fails to mention, research at the University of Michigan discovered that two inaudible ultrasonic devices can create interference (intermodulation distortion) that makes sounds similar to those recorded in Cuba that some of the affected diplomats heard.

There are competing theories of what caused the medical problems, and if that were the only dispute, the two sides could agree to submit that to a neutral fact-finder in an arbitration or some other dispute-resolution procedure. But that really is a side issue. The important issue is what can be done, if anything, to improve the health of the affected U.S. (and Canadian) personnel and to ensure that there will be no similar incidents in the future.

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[1] Gómez, The 10 most common lies about alleged health incidents affecting U.S. diplomats in Cuba, Granma (April 26, 2018).

[2] This blog has published many posts about the issues associated with the medical problems of some U.S. (and Canadian) diplomats who were stationed in Cuba. See posts listed in the “ U.S. Diplomats Medical Problems in Cuba, 2017-18” section of List of Posts to dwkcommentaries—Topical: CUBA.

Additional Controversy Over What Happened to U.S. Diplomats in Cuba

As discussed in prior posts, at least 24 U.S. diplomats and members of their families while working and living in Havana have suffered various ailments.[1] Controversy over what caused such ailments has surfaced just one day before a subcommittee of the Senate Foreign Relations Committee conducts a hearing on the subject.

One dispute is between Senator Marco Rubio (Rep., FL), the chair of the subcommittee, and another subcommittee member, Senator Jeff Flake (Rep., AZ), who as noted in a recent post, after a recent conference in Havana with Cuban officials, announced that both the U.S. and Cuba have no evidence of any such “attacks.”

On January 7 Senator Rubio disagreed with this assessment with three messages on his Twitter account: “”It is a documented FACT that 24 U.S. govt officials & spouses and their spouses were victims of some kind of sophisticated attack while stationed in Havana.” He added in another tweet, “Any U.S. official briefed on matter knows full well that while method of attack still in question, that attacks & injuries occurred isn’t.” His third tweet said. “It is impossible to conduct 24 separate & sophisticated attacks against US Govt personnel in #Havana without #CastroRegime knowing about it.”[2]

Another dispute on the subject has occurred between the FBI and Secretary of State Rex Tillerson.[3]

According to the Associated Press, the FBI’s Operational Technology Division has issued an interim report, dated January 4, that says after months of investigation and four trips to Cuba, there is no evidence that sound waves could have damaged the health of these people, but that the FBI will continue investigating the matter.

On January 5 Tillerson, however, said he’s not convinced that what he calls the “deliberate attacks” are over and that he still believes that “the Cuban government, someone within the Cuban government can bring this to an end.”

Stay tuned for tomorrow’s subcommittee hearing.

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[1] See posts listed in the “U.S. Diplomats Medical Problems in Cuba, 2017” section of List of Posts to dwkcommentaries—Topical: CUBA.

[2] Rubio Twitter Accountt (Jan. 7, 2018).

[3] Assoc. Press, Tillerson Tells AP Cuba Still Risky; FBI Doubts Sonic Attack, N.Y. times (Jan. 8, 2018)

Congressional Proposal for Extradition of U.S. Fugitives in Cuba

On December 13 U.S. Representative Peter King (Rep., NY) and eight cosponsors filed a proposed House resolution calling for the extradition of U.S. citizens in Cuba who are fugitives from the U.S. That proposal will be summarized and analyzed below.

Contents of the Proposed Resolution[1]

The preamble of the proposed resolution, which was referred to the House Committee on Foreign Affairs, recited that “more than 70 fugitives from the United States, charged with offenses ranging from hijacking to kidnapping to drug offenses to murder, are believed to be receiving safe harbor in Cuba,” including William Morales and Joanne Chesimard. It also mentioned that the U.S. and Cuba have a bilateral extradition treaty from 1905 and 1926 and that “it is imperative that Cuba abide by its extradition treaty with the United States and immediately extradite or render to the United States those legally indicted or convicted of serious criminal offenses in the United States.”

Therefore, the proposed resolution called for the following:

“the immediate extradition or rendering to the United States of convicted felon William Morales and all other fugitives from justice who are receiving safe harbor in Cuba in order to escape prosecution or confinement for criminal offenses committed in the United States;”
the U.S. urging “the international community to continue to press for the immediate extradition or rendering of all fugitives from justice that are receiving safe harbor in Cuba;” and
“the Secretary of State and the Attorney General to continue to press for the immediate extradition or rendering of all fugitives from United States justice so that they may be tried and, if convicted, serve out their sentences.”

Analysis of the Proposed Resolution

The resolution may make for good publicity for these representatives, but it is a waste of time because the terms of the U.S.-Cuba extradition treaty bar such extraditions, because the U.S. repeatedly has called for Cuba to make these extraditions and because Cuba repeatedly has denied such requests under the very terms of the extradition treaties recited in this resolution.

The Legalities of Extradition[2]

First, extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense.

In the U.S., international extradition is treaty-based, meaning that the U.S. must have an extradition treaty with the requested country in order for the latter to consider the request for extradition. U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties. While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19^th Century.

For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.

In addition, most such treaties provide specific bases on which extraditions can be delayed or denied. The obligation to extradite under a bilateral extradition treaty is not absolute and protections are included in the treaty to accommodate both U.S. and foreign interests. While the exact terms of such treaties result from country-specific negotiations and thus vary somewhat among the treaties, there are the following typical types of qualifications on the obligation to extradite:

An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.
A similarly widely adopted exception is where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).
U.S. treaties also typically provide that extradition may be denied if the request is found to be politically motivated. Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.
Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals. The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.
Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.

Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties, however, this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.

U.S.-Cuba Extradition Treaties[3]

The issues posed by the new proposed House resolution are governed by the “Treaty between the United States and Cuba for the mutual extradition of fugitives from justice,” which entered into force on March 2, 1905. Under this treaty, as amended, each country shall grant extradition of persons covered by Article I for crimes covered by Article II, as amended and expanded by Articles I and II of the Additional Extradition Treaty between the parties, which entered into force on June 18, 1926 (44 Stat. 2392; TS 737).

The persons covered by Article I are “persons who, having been charged as principals, accomplices or accessories with or convicted of any crimes or offenses specified in the following article, and committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.” However, under Article V of the treaty, “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this Treaty.”

The long list of crimes covered by Article II, as amended, includes the following: (1) “Murder, comprehending the offenses expressed in the Penal Code of Cuba as assassination, parricide, infanticide and poisoning; manslaughter, when voluntary; the attempt to commit any of these crimes.” (2) “Arson.” and (3) “Robbery, defined to be the act of feloniously and forcibly taking from the person of another money, goods, documents, or other property, by violence or putting him in fear; burglary; housebreaking and shopbreaking.”

Under Article VI of the original treaty, however, the requested country is not obligated to extradite someone when the offense is of “a political character.” The exact language of this provision states, “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if it is proved that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.” (Emphasis added.)

The only limitation on this exception is in Article VI itself, which states, “An attempt against the life of the head of a foreign government or against that of any member of his family when such attempt comprises the act either of murder, assassination, or poisoning, shall not be considered a political offense or an act connected with such an offense.” (Emphasis added.)

Moreover, Article VI states, “If any question shall arise as to whether a case comes within the provisions of this article [VI], the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition shall be final. (emphasis added.) [3]

To have a better understanding of this treaty, it would be useful to see all documents regarding (a) the negotiation of the treaty in 1904-1905 and its amendment in 1926; and (c) previous U.S. and Cuban requests for extradition.

U.S. Fugitives In Cuba

According to U.S. Department of State annual reports purportedly justifying the previous designations of Cuba as a “State Sponsor of Terrorism,” there have been or still are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes. Pursuant to a 2005 Cuban government statement, however, these U.S. reports also say no additional U.S. fugitives have been permitted on the island and in a few instances Cuba has extradited such fugitives to the U.S.

However, a U.S. newspaper recently asserted, “The U.S. has no idea how many fugitives Cuba’s harboring,” And on January 23, 2015, U.S. Senator Marco Rubio (Rep., FL) and two other Republican Senators (David Vitter (LA) and Ted Cruz (TX)) asked the F.B.I. to submit a complete list of such fugitives with copies of their U.S. indictments, but a FBI response to this request has not been located.

In any event, one of the most notable U.S. fugitives still on the island is JoAnne Chesimard (a/k/a Assata Shakur), a political radical and former member of the Black Panther Party and the militant Black Liberation Army, who in 1979 broke out of a New Jersey state prison where she was serving a life sentence for assault, armed robbery and aiding and abetting the murder of a New Jersey state trooper. After hiding in the New York area, she fled to Cuba in 1984, where she was granted political asylum that same year and has lived ever since. According to her U.S. attorney, she “has maintained from the time she was arrested that she was a victim of a counter intelligence program by the FBI and that she was stopped on the New Jersey turnpike as result of her being targeted by FBI.” In May 2013 the FBI added her name to its “Most Wanted” list.

Cuba, however, before the December 2014 rapprochement had rejected U.S. requests for her extradition on the ground that Cuba had determined she was being sought on “political” grounds and, therefore, had decided to grant her asylum. In addition, there are also some indications that Chesimard/Shakur has been granted Cuban citizenship, which would provide Cuba with another reason under the treaty to deny a U.S. request for her extradition. It would be useful to know the details of all prior U.S. requests for her extradition.

After the announcement of rapprochement, the two countries have discussed various extradition issues, including at least some of the U.S. nationals in Cuba who are mentioned in the new proposed resolution in the House of Representatives, including Chesimard/Shakur.[4]

However, after a bilateral negotiation session in Washington, D.C. in February 2015 Josefina Vidal, Cuba’s lead diplomat for these negotiations, said the issue of extraditing people between Cuba and the U.S. had been discussed many times in the past and that the two countries had signed a treaty on the topic in 1906 which has a clause such that it would not apply in cases involving political activities. “Therefore, Cuba has legitimately given political asylum to a small group of U.S. citizens, because we have reason to believe that they deserve this and that is how far we’ve gone. And when one grants political asylum, then you cannot get into these types of discussions.” She added that after the Cuban Revolution of 1959 the U.S. had not honored the treaty when Cuba asked the U.S. to extradite “members of the Cuban dictatorship who were responsible for terrible crimes.”

In June 2016, the two countries held another negotiating session in Havana focused on counterterrorism cooperation Afterwards the State Department merely stated that the U.S. “continues to seek the return by Cuba of fugitives from US justice” and that the Department “brings out the cases of fugitives to the Cuban Government to be settled and will continue to do so at every appropriate opportunity.”

Conclusion

As a result, the new proposed Resolution does not deserve to be adopted, and if adopted, it will not have any practical effect.

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[1] H.Res. 664, Calling for the immediate extradition or rendering to the United States of convicted felons William Morales, Joanne Chesimard, and all other fugitives from justice who are receiving safe harbor in Cuba in order to escape prosecution or confinement for criminal offenses committed in the United States (115^th Cong. (Dec. 13, 2017). The co-sponsors are Representatives Leonard Lance (Rep., NJ), Bill Pascrell (Dem., NJ), Frank LoBiondo (Rep., NJ), Ron De Santis (Rep., FL), Albio Sires (Dem., NJ), Ileana Ros-Lehtinen (Rep., FL), Mario Diaz-Balart (Rep., FL) and Carlos Curbelo (Rep., FL).

[2] Extradition Has Become a Hot Topic for the United States, dwkcommentaries.com (July 26, 2016).

[3] Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015).

[4] Criticism of U.S.-Cuba Law Enforcement Agreement, dwkcommentaries.com (Jan. 21, 2017).

Criticism of U.S.-Cuba Law Enforcement Agreement

The head of New Jersey’s state police has criticized the two countries’ law enforcement agreement of January 16, 2017, because, he says, he has read the agreement and it does not require Cuba to extradite Joanne Chesimard (a/k/a Assata Shakur) to the U.S.[1]

After reviewing what we know about this woman, we will examine the police statement and provide commentary.

Chesimard/ Shakur

In the 1960s-1970s Chesimard, a U.S. citizen, was a member of the Black Panther Party and the Black Liberation Army in the U.S. In 1977 she was convicted in New Jersey state court for aiding and abetting first-degree murder, assault and battery of a police officer (New Jersey State Trooper Werner Foerster), assault with a dangerous weapon, assault with intent to kill, illegal possession of a weapon, and armed robbery during a gunfight on the New Jersey Turnpike in 1973.

She was sentenced to life in New Jersey state prison, but in 1979 she escaped and in 1984 traveled to Cuba. At some time thereafter President Fidel Castro granted her asylum, and she has been living there under the name Assata Shakur. She is now around 70 years old. The FBI has listed her as one of its “Most Wanted” and offered a reward of $1 million for her apprehension; the New Jersey Attorney General has offered to match that reward.

Since at least 1997 there have been various unsuccessful attempts by the U.S. government and others to obtain her extradition to the U.S.

Statement by New Jersey State Police Superintendent

The Superintendent Rick Fuentes’ January 18 statement reads as follows:

“On Monday, January 16, 2017, the White House signed a law enforcement pact with the government of Cuba that included the sharing of national security information on matters related to fighting terrorism and the scourge of the international narcotics trade. I have read this pact with great interest, as any aspect of the continued negotiations to normalize relations with Cuba impacts our continued advocacy to seek the return of Joanne Chesimard. Chesimard executed New Jersey State Trooper Werner Foerster in 1973 and fled to Cuba after escaping a New Jersey prison in 1979. She is most prominent among a rogue’s gallery of cop killers and domestic terrorists that have been given sanctuary by the Castro regime these past thirty years.”
With a continued sense of bewilderment and confusion not uncommon to the course of these negotiations, the pact does not address the return of: Joanne Chesimard; Victor Manuel Gerena, a member of Los Macheteros who was removed from the FBI Top Ten list one month ago; Charlie Hill, a member of the Republic of New Afrika, alleged to have killed a New Mexico state trooper in 1971; or, William Guillermo Morales, the murderous bomb-maker for the Puerto Rican separatist group, FALN.”
“Their omission from this agreement and from the negotiations-at-large is so glaring as to signal a clear intent by the Obama Administration to ignore these fugitives. By burning the last bridge to this Administration’s opportunity to gain their negotiated return, families who have long suffered the consequences of their terrorist acts and law enforcement everywhere in this country have been shown the back of the hand. An ignominious torch has been passed to the next president.”
“We are not deterred. I can say, unequivocally, that Governor Chris Christie, State Attorney General Chris Porrino and I remain resolute in our efforts to follow every political course leading to the return of Joanne Chesimard and the other remaining terrorist fugitives. We approach the next presidential administration with a renewed sense of optimism and moral superiority that justice will prevail.”

Comments

The Superintendent’s statements regarding Chesimard/Shakur are believed to be basically correct, and it is most understandable that the New Jersey State Police want her extradited to the U.S. and returned to New Jersey state prison.

The Superintendent says he has read the recent MOU in question and that it does not require Cuba to make that extradition. I have not been able to locate that MOU so cannot independently verify the validity of his statement. But for present purposes I will assume that his statement about the MOU is basically correct.

I assume, on the other hand, that the MOU does not contain a U.S. agreement to not continue to seek her extradition or a Cuban statement or promise not to extradite her. If it had, I am confident that the Superintendent would have so stated and raised the ante for his protest.

He also asserts that the subject of this requested extradition has not been raised by the U.S. in “the negotiations-at-large.” Although I have not been personally involved in those negotiations, I believe this to be a false statement. As noted in earlier posts, public reports indicate that the two countries’ respective requests for extraditions of criminals or suspects, which I believe includes the U.S. request regarding Chesimard/Shakur, have been the subjects of several such bilateral negotiating sessions since December 17, 2014.

As a result, I conclude that the parties have not been able to come to an agreement about such extraditions or about a judicial procedure for resolving any such disputes. Therefore, there apparently was no mention of the subject in the MOU in question.

Moreover, the Superintendent also fails to recognize a major legal issue regarding the requested Chesimard/Shakur extradition because of an extradition treaty between the two countries. Therefore, we will look at that treaty and the issue it raises regarding this possible extradition.

U.S.-Cuba Extradition Treaty.

As explained in an earlier post,[2] on March 2, 1905, the two countries entered into such a treaty, the “Treaty between the United States and Cuba for the mutual extradition of fugitives from justice.” Under this treaty, as amended, each country shall grant extradition of persons covered by Article I for crimes covered by Article II, as amended and expanded by Articles I and II of the Additional Extradition Treaty between the parties, which entered into force on June 18, 1926.

The persons covered by Article I are “persons who, having been charged as principals, accomplices or accessories with or convicted of any crimes or offenses specified in the following article, and committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.” This obviously covers Chesimard/Shakur, who does not fall within the exception under Article V of the treaty, “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this Treaty,” unless she has been granted Cuban citizenship.

The long list of crimes covered by Article II, as amended, includes (1) “Murder, comprehending the offenses expressed in the Penal Code of Cuba as assassination, parricide, infanticide and poisoning; manslaughter, when voluntary; the attempt to commit any of these crimes.” This obviously covers the requested extradition discussed here.

Under Article VI of the original treaty, however, the requested country (Here, Cuba) is not obligated to extradite someone when the offense is of “a political character.” The exact language of this provision states, “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if it is proved that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.” (Emphasis added.)

Moreover, Article VI states, “If any question shall arise as to whether a case comes within the provisions of this article [VI], the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition shall be final. (emphasis added.) This exception seems to cover Chesimard/Shakur as discussed next.

The Treaty Issue Regarding Chesimard/Shakur

After fleeing to Cuba in 1984, at date unknown the Cuban government apparently granted her political asylum and perhaps Cuban citizenship. Assuming that to be the case, that appears to negate Cuba’s obligation under the treaty to extradite her to the U.S.

It is not known whether the Cuban government has the legal authority to revoke that grant of asylum (and of citizenship?) and whether it would do so in this case. However, after a bilateral negotiation session in Washington, D.C. in February 2015 Josefina Vidal, Cuba’s lead diplomat for these negotiations, said the issue of extraditing people between Cuba and the U.S. had been discussed many times in the past and that the two countries had signed a treaty on the topic in 1906 which has a clause such that it would not apply in cases involving political activities. “Therefore, Cuba has legitimately given political asylum to a small group of U.S. citizens, because we have reason to believe that they deserve this and that is how far we’ve gone. And when one grants political asylum, then you cannot get into these types of discussions.” She added that after the Cuban Revolution of 1959 the U.S. had not honored the treaty when Cuba asked the U.S. to extradite “members of the Cuban dictatorship who were responsible for terrible crimes.”[3]

In June 2016, the two countries held another negotiating session in Havana focused on counterterrorism cooperation, the subject of the January 16, 2017, MOU. Outsiders speculated that the meeting may have included discussions about a possible high-profile prisoner swap: U.S.-jailed Cuban spy Ana Belén Montes in exchange for Chesimard/Shakur). The State Department, however, has refused to confirm that such an exchange was being discussed. Instead the Department merely stated that the U.S. “continues to seek the return by Cuba of fugitives from US justice” and that the State Department “brings out the cases of fugitives to the Cuban Government to be settled and will continue to do so at every appropriate opportunity.” [4]

Therefore, unless there is some error in my analysis, the strong desire by many in New Jersey and elsewhere in the U.S. for this extradition appears to be a lost cause unless the Cuban government has the authority under its own laws to revoke the grant of asylum (and citizenship?) and chooses to exercise it. Or the Cuban government just decides to extradite her without changing her asylee or citizenship status.

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[1] Assoc. Press, With No Deal on Convicted Killer, Police Slam US-Cuba Pact, N.Y. Times (Jan. 20, 2017),‘Goodbye, Obama! NJ State Police slams president on the way out (Jan. 18?, 2017); New Jersey State Police, Colonel Rick Fuentes’ Response to the Recently Signed U.S./Cuban Law Enforcement Pact (Jan. 18?, 2017).

[2] Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015). Moreover, the “political offense” provision of the U.S.-Cuba treaty is not sui generis, but in fact is a common provision in other U.S. extradition treaties. (Ibid.; Extradition Has Become a Hot Topic for the United States, dwkcommentaries.com (July 25, 2016).

[3] U.S. and Cuba Hold Productive Second Round of Negotiations, dwkcommentaries.com (Mar. 6, 2015).

[4] U.S. and Cuba Discuss Counterterrorism Cooperation, dwkcommentaries.com (June 10, 2016).

Russian State-Owned Media Support Donald Trump’s Candidacy

Previous posts have discussed Vladimir Putin’s hatred of Hillary Clinton.[1] That intense personal dislike is now seen as an implicit motivation underlying Russian state-owned media’s coverage of the U.S. presidential election.[2]

According to the Associated Press, Russian television reports about the U.S. election “devote most of their time to elaborating on Donald Trump’s allegations that Hillary Clinton is corrupt and the election is rigged.” For example, a prominent television commentator said, “‘Clinton has a choice. Either she gets the presidency or she goes behind bars.’ Unlike the anti-establishment Trump, he told viewers, Clinton has the full backing of the U.S. security services, ‘oligarchic’ corporations and the media.”

Other reports on the Kremlin-controlled TV have “highlighted concerns about Clinton’s health, linked her to sex scandals and suggested the Democratic Party is ‘panicking’ over recent polls.”

In contrast, says the AP, “negative stories about Trump often get lighthearted coverage,” and “Russian media . . . has concentrated on apparent flaws in the U.S. election process, echoing Trump’s claims that the election is rigged against him.”

Meanwhile, in the U.S. the FBI is investigating possible Russian interference in the U.S. election with alleged hacking of Clinton campaign documents and creation of false documents purportedly authored by U.S. officials.[3]

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[1] An impressionistic view of the Russian Federation, dwkcommentaries (Oct. 22, 2016); Hillary Clinton and Vladimir Putin’s Hostile Relationship, dwkcommentaries (Nov. 4, 2016).

[2] Assoc. Press, Russian Media Backs Trump, Questions US Democracy, N.Y. Times (Nov. 5, 2016).

[3] E.g., Reuters, FBI Examining Fake Documents Targeting Clinton Campaign: Sources, N.Y. Times (Nov. 4, 2016).

University Students Investigate Jim Crow-Era Killings

Students at Atlanta’s Emory University are investigating Jim Crow-era murders of blacks in Georgia. They then publish their results online. This is the focus of Emory’s “The Georgia Civil Rights Cold Cases Project.” Similar projects exist at least three other universities. Important federal legislation and actions by the U.S. Department of Justice provide important background for such efforts. These subjects will be explored in this post.

Emory’s Project[1]

The Project was started in 2011 as an interdisciplinary Civil Rights Cold Cases class examining incidents that occurred in Georgia. In January 2015, it launched a website, coldcases.emory.edu, that is the joint product of more than fifty students’ work during seven semesters of the course.

The Emory class is taught by Hank Klibanoff, the James M. Cox Jr. Professor of Journalism and the Pulitzer Prize–winning author of The Race Beat: The Press, the Civil Rights Struggle, and the Awakening of a Nation, and by Brett Gadsden, Associate Professor of African American Studies.

Professor Gadsden said the class is run like “a research seminar, with intense focus on individuals’ lives and attention to the historical context in which these folks lived. These stories come alive for students. They aren’t just presenting cases or telling the stories of lowly black victims. They are really trying to understand what happened, what the circumstances were, what happened to the people, how they lived, how they died, who killed them, and why, but understanding these victims’ deaths as a part of the historical record.”

The students prepare both a ten-page academic paper on their topic of choice and a condensed article for publication on the website. Gadsden emphasizes that the students are “writing for the professors, for each other, and also for a public of both academics and non-academics. They are accountable to the descendants of the lost, and that comes with a special responsibility—one that the students embrace.”

The recent Wall Street Journal article about Emory’s project tells the moving story of the students’ investigation of the September 8, 1948, killing by two white men of Isaiah Nixon, a black man who had voted that same day in Georgia’s gubernatorial primary election. One of the white men was charged with murder, but was acquitted in a one-day trial by an all-white jury. Afterwards the accessory-to-murder charge against the other white man was dropped. The Emory students’ investigation led them to conclude that Nixon had been murdered because he had voted in that primary election.

The students also discovered Nixon’s grave in a Georgia cemetery and invited his daughter, Dorothy Nixon Williams, who at age 6 had witnessed the murder of her father, to visit the grave last week with them and her son. Now 73 years old, Dorothy said when seeing the grave, “Lord have mercy,” sobbing into her son’s shoulder. Professor Klibanoff commented, “Isaiah Nixon matters; his life matters and his death and disappearance from history matter. What matters more is his reappearance now and I think that is miraculous.” At the conclusion of the visit, Dorothy said her anger over her father’s murder “now is completely released.”

Other Similar Projects

Similar projects are being conducted by Northeastern University School of Law, Syracuse University College of Law and Louisiana State University.

Northeastern’s Civil Rights and Restorative Justice Project investigates “the role of state, local and federal law enforcement agencies and courts in protecting activists and their work. [The Project] examines the geo-politics that led to the large-scale breakdown of law enforcement, the wide-spread repression against the movement’s participants, and the reforms that have been initiated to rectify these abuses. The project engages teachers and students across the university and is directed by faculty from the School of Law and the College of Criminal Justice.” [2]

Syracuse’s Cold Case Justice Initiative was established in 2007 by Syracuse law professors Paula Johnson and Janis McDonald to investigate “racially motivated murders that occurred during the Civil Rights era and [to advocate] on behalf of the victims and their families to get justice for the crimes. The program works with law students to conduct research, identify victims and find new information that could assist law enforcement in resolving cases. The Initiative as of has identified [nearly 200] cases from the civil rights era they believe warranted further investigation by federal authorities.”[3]

Louisiana State University’s Manship School of Mass Communication started its Cold Case Project in 2010 to investigate Civil Rights-era hate murders in Louisiana and southern Mississippi. Since then nearly three-dozen students, comprised mainly of seniors and graduate students, have worked on such cases. Their “primary focus is to bring closure to African-American communities which have lingered decades without fully knowing what federal agents learned about the deaths of family members and friends.” Jay Shelledy, who is in charge of the Project, said FBI agents at the time did their best to solve these vicious killings, but were thwarted by intimidated witnesses, Klan-sympathizing local lawmen and white juries which refused to convict whites of murdering blacks.[4]

In February 2015 the LSU Project launched a searchable website detailing heretofore sealed FBI investigative findings in a dozen such murders. It contains more than 150,000 pages of FBI findings, resulting stories, photographs and letters from the U.S. Department of Justice to the victims’ next of kin. Many thousands of additional pages of FBI case files are pending release under FOIA requests; when released, they will be added to the digital database.

Background for These Projects

These projects have been stimulated and assisted by the U.S. Department of Justice and the Federal Bureau of Investigation (FBI). In 2006, the Department began its Cold Case Initiative—a comprehensive program to identify and investigate racially motivated murders committed decades ago. The effort was reinforced in 2008 with the passage of the Emmett Till Unsolved Civil Rights Crime Act that authorized the Department to investigate unsolved civil rights murders before 1970. This statute had been introduced in 2007 by Congressman John Lewis of Georgia and unanimously passed by both houses of Congress in 2008 and signed into law by President George W. Bush.[5]

As of May 2015, the Department reported to Congress that it had concluded 105 of 113 relevant cold cases involving 126 victims, but that “very few prosecutions have resulted from these exhaustive efforts.” (The single case that went to court involved Jimmie Lee Jackson, who was shot by Alabama State Trooper James Fowler after a civil rights protest in 1965. In 2010, at age 77, Fowler pleaded guilty to manslaughter and was sentenced to six months in prison.)[6]

This was due, said the report, for many reasons. Federal statutory law limits the Department’s ability to prosecute civil-rights era cases at the federal level. There is a five-year statute of limitations on federal criminal civil-rights charges that existed prior to 1994. The Fifth Amendment protects against double jeopardy, which prevents the re-trial of someone for an offense for which he or she was previously found not guilty. In addition, cold cases can be difficult to prosecute because “subjects die, witnesses die or can no longer be located, memories become clouded, evidence is destroyed or cannot be located.”

This statute is due to expire in 2017, and efforts are being made to lobby for its extension.

Conclusion

These projects are significant and inspiring. First, they complement and should be coordinated with the amazing justice advocacy of Bryan Stevenson at the Equal Justice Initiative that was discussed in a prior post. Second, these projects are excellent examples of a mode of teaching an important subject that should be included in this blogger’s reflections on modes of teaching and learning as set forth in another earlier post.

We all should give thanks to Emory, Northeastern, Syracuse and Louisiana State University for their leadership in this important work.

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[1] McWhirter, College Class Investigates Jim Crow-Era Killings, W.S. J. (Jan. 24, 2016),; Lameiras, Cold Cases Project helps student uncover history of civil rights era crimes, Emory Mag. (May 25, 2015); Emory Libraries, Georgia Civil Rights Cold Cases; Justice, Emory student research debuts on Georgia Civil Rights Cold Cases website (Jan. 7, 2015); Emory Univ., Special Topics Seminar: Cold Cases (description of seminar and tentative list of readings).

[2] Northeastern Univ. School of Law, Civil Rights and Restorative Justice Project. An earlier version of this post erroneously included Northwestern University College of Law’s important Wrongful Conviction Center, and I thank Professor Hank Klibanoff for pointing out this error.

[3] Joiner, Inside the Effort to Solve Civil Rights Crimes Before It’s Too Late, Time (Oct. 15, 2015).

[4] LSU Manship School of Mass Communication, Cold Case Project; Lemoine, Cold Case, LSU Gold (Fall 2011); LSU Manship School of Mass Communication, Cold Case Project website released (Feb. 25, 2015).

[5] U.S. Dep’t of Justice, Cold Case Initiative.

[6] U.S. Dep’t of Justice, Attorney General’s Sixth Annual Report to Congress Pursuant to the Emmett Till Unsolved Civil Rights Crime Act of 2007 (May 2015).