Tuesday, March 17, 2015

Time Served

Never thought I would find a correlation between former prisoners released and/or exonerated for the crimes they did not commit and our military but alas I have. Poverty and utter desitution and re-entry into a world that is increasingly uncomfortable with their presence. Welcome home!

Two articles about men who find themselves at odds with the country that they served time for. The how and why is irrelevant as they were a part of the system set to protect and serve and yet it failed on both counts.

Failed by Law and Courts, Troops Come Home to Repossessions
The New York Times
MARCH 16, 2015

Charles Beard, a sergeant in the Army National Guard, says he was on duty in the Iraqi city of Tikrit when men came to his California home to repossess the family car. Unless his wife handed over the keys, she would go to jail, they said.

The men took the car, even though federal law requires lenders to obtain court orders before seizing the vehicles of active duty service members.

Sergeant Beard had no redress in court: His lawsuit against the auto lender was thrown out because of a clause in his contract that forced any dispute into mandatory arbitration, a private system for resolving complaints where the courtroom rules of evidence do not apply. In the cloistered legal universe of mandatory arbitration, the companies sometimes pick the arbiters, and the results, which cannot be appealed, are almost never made public.

That is the experience for many Americans who are contractually obligated to resolve their disputes with investment advisers or lenders in this way. But it is supposed to be different for the troops who are deployed abroad, say military lawyers, state authorities and Pentagon officials.

Over the years, Congress has given service members a number of protections — some dating to the Civil War — from repossessions and foreclosures.

Efforts to maintain that special status for service members has run into resistance from the financial industry, including many of the same banks that promote the work they do for veterans. While using mandatory arbitration, some companies repeatedly violate the federal protections, leaving troops and their families vulnerable to predatory lending, the military lawyers and government officials say.

“Mandatory arbitration threatens to take these laws and basically tear them up,” said Col. John S. Odom Jr., a retired Air Force lawyer now in private practice in Shreveport, La. High-ranking Defense Department officials agree, telling Congress that “service members should maintain full legal recourse.”

Last year, a bipartisan bill that would have allowed service members to opt out of arbitration and file a lawsuit met with opposition from the U.S. Chamber of Commerce and Wall Street’s major trade group, the Securities Industry and Financial Markets Association, or Sifma.

“While we remain very supportive of the troops, we see no empirical or other evidence that service members are being harmed by or require relief from arbitration clauses,” Kevin Carroll, a managing director and associate general counsel at Sifma, said in a statement.

The trade groups’ members include a roster of financial companies that have trumpeted their hiring of veterans and their initiatives for troops returning home from war. They include JPMorgan Chase, the nation’s largest bank, and USAA, which caters almost exclusively to service members and their families.

Many banks contend — as do companies in other industries — that arbitration is a more efficient and less costly way to handle disputes. A spokesman for USAA said that the company supported the bill because it would have been “good public policy for the entire industry.” Still, USAA uses mandatory arbitration clauses in many of its financial service contracts with service members.

The clauses clamp down on frivolous litigation, including class-action lawsuits, and the cost savings allow companies to provide more affordable products to consumers, the trade organizations say.
In lobbying against the bill, several financial industry groups and a large phone company visited with the staff of Senator Lindsey Graham, Republican of South Carolina, who sponsored the legislation along with Senator Jack Reed, a Rhode Island Democrat.

The trade groups told Mr. Graham’s office that they were already working to make their arbitration procedure more accommodating to service members, according to a person briefed on those discussions who would speak only on the condition of anonymity.

“The message was, ‘Let us fix this internally,’ ” the person said. “Don’t upset the apple cart with a new law.”
The bill never made it out of committee last year, though Mr. Graham plans to reintroduce it this year.
Consumer lawyers say it is easy to understand why the industry is lobbying against an exemption for service members: One carve-out from mandatory arbitration could bolster broader calls to excise the clauses from contracts altogether.

“If you admit that these are bad for the military, then it follows that they are bad for consumers much more broadly,” said Deepak Gupta, a lawyer in Washington who has represented consumers in cases about arbitration before the Supreme Court.

The main law challenged by mandatory arbitration clauses is the Servicemembers Civil Relief Act, or S.C.R.A., military officials say. Under the law, active duty military members and their families are protected from repossession and foreclosure without a court order. It allows them to terminate any real estate or auto lease when their military orders require them to do so. And it requires lenders to reduce the interest rates on any loans to 6 percent.

Violations of those protections are widespread, according to a review by The New York Times of court records and loan contracts.

The Government Accountability Office, for example, found in 2012 that financial institutions had failed to abide by the law more than 15,000 times. Last month, Santander Consumer USA reached a $9.35 million civil settlement with the Justice Department over accusations that the lender illegally seized cars from members of the military for a period of nearly five years until 2013.

Arbitration is often stacked against service members from the start. Some of the contracts, for example, offer two possible sites for a hearing: one city on the West Coast and another on the East Coast. Consumer lawyers say the companies invariably pick the city that is farther away from where the customer lives.
But the real power of the clauses, the lawyers say, is that they make it virtually impossible for consumers to band together in a broad legal challenge.

Instead, companies can battle claims one by one. And alone, few consumers can afford to take on companies at all, especially if their disputes revolve around a few hundred dollars. Debt collectors promoted such benefits in an industry newsletter, describing mandatory arbitration as a “silver bullet” that could “successfully remove the matter from court and likely end the case in its entirety.”

Continue reading the main story Continue reading the main story Continue reading the main story
When Matthew Wolf, a captain in the Army Reserve, was deployed to Afghanistan a year into a 39-month car lease, he turned in the car, an Infiniti, to the dealership and asked for a refund of $400 he had put down toward future monthly payments — his right under the S.C.R.A.

Nissan, which is the parent company of Infiniti, balked at Captain Wolf’s request, refusing to give him back the money. Captain Wolf and his lawyer, Thomas Booth Jr., sued Nissan on behalf of service members facing similar predicaments. But because of an arbitration clause in his lease, the lawsuit was dismissed and his dispute was sent to arbitration.

In arbitration, he was told that the fees for the case could total $8,200 — or nearly 21 times what he said he was owed.

In a statement, a spokesman for Nissan’s Infiniti unit said, “We continue to work with Mr. Wolf to resolve his complaint.”

Despite arguments that arbitration is more efficient and less expensive than court, military lawyers say cases can drag on for years.

It took more than four years after Sergeant Beard’s car was repossessed before an arbiter ruled on his case against Santander Consumer. Although Sergeant Beard was awarded $6,500, the arbiter denied his requests that Santander compensate him and his family for the wrongful repossession.

For Sergeant Beard, the real issue is all the other troops who have been victimized.

“I tried to fight for everybody, but it only ended up with me,” said Sergeant Beard, who adds that such repossessions “will destroy soldiers in combat by putting them in a position where they can’t help their loved ones.”

In a statement, a spokeswoman for Santander Consumer said that since 2012, “the lender has used systemic controls to prevent improper repossessions of vehicles,” including the vehicles of military members protected under the S.C.R.A.

In the action against Santander late last month, Justice Department officials emphasized that the auto lender used an arbitration clause to undercut a class action brought by a military member whose car was seized.

That soldier, according to people briefed on the matter, was Sergeant Beard.

Pardons Elude Men Freed After Decades in North Carolina Prison
The New York Times
MARCH 16, 2015

FAYETTEVILLE, N.C. — In the days leading up to the one last summer when Henry L. McCollum left North Carolina’s death row, it seemed that inmates and staff members could not stop talking about what awaited him beyond Central Prison.

The man who had spent almost his entire adult life awaiting execution would be able to go out for fried chicken, his favorite. Maybe he could strike a movie deal. At the very least, Mr. McCollum remembers, people told him that he would be a man of considerable wealth once the state paid him the $750,000 he could seek under North Carolina law because he had been wrongly convicted and imprisoned for decades.

As Two Men Go Free, a Dogged Ex-Prosecutor Digs InSEPT. 7, 2014 North Carolina Men Are Released After Convictions Are OverturnedSEPT. 3, 2014 DNA Evidence Clears Two Men in 1983 MurderSEPT. 2, 2014 Mr. McCollum, 50, was released from prison last September after DNA evidence showed that he did not rape and murder a young girl in 1983. But since then, he and his half brother, Leon Brown, who was also exonerated and freed in the same case, have led anything but glamorous post-prison lives. Instead, because of legal decisions made to help accelerate their release, as well as Gov. Pat McCrory’s deliberate approach to granting what is known here as a pardon of innocence, both men have clung to a minimal existence, absent substantive remuneration, counseling or public aid in transitioning back to society.

“If the governor called me, I would tell him the reason why I need his pardon: I would tell him I deserve this pardon,” Mr. McCollum said. “I did 31 years in prison for a crime I did not commit. I could have given up a long time ago and told the state to kill me.”

So far, though, Mr. McCrory has not acted on the pardon applications of Mr. McCollum and Mr. Brown, whose I.Q. scores were previously recorded in the 50s.

Because of the approach lawyers used to secure swifter releases for the two men, neither is entitled to wrongful conviction compensation until he gets a pardon.

The men were teenagers — Mr. McCollum was 19 and Mr. Brown, 15 — when they were arrested in Red Springs in September 1983 in the rape and murder of an 11-year-old girl, Sabrina Buie. They were convicted about a year later.

But Judge Douglas B. Sasser of Robeson County Superior Court concluded last year that “no physical evidence, either at the time of their arrest or at any time since, linked Mr. McCollum or Mr. Brown to the scene or the commission of this crime.” Judge Sasser also found that the case against the men, who are black, was built “almost entirely” on the inconsistent confessions that they quickly recanted.

DNA recovered from the crime scene was linked decades later to Roscoe Artis, who is serving a life sentence for another 1983 rape and murder in Red Springs. (Mr. Artis has not been charged in the death of Sabrina Buie.)
Mr. McCollum and Mr. Brown each received $45 when they left prison and have lived on charity since. They lived for a time at a home here, where Mr. Brown slept on a couch in one room and Mr. McCollum’s mattress and box spring were on the floor in another.

Without money for a car or any knowledge about how to drive one, the men walked to a grocery to buy subsistence fare like canned potatoes and pork and beans. Mr. McCollum, who was a janitor in prison, said he wanted to apply for a job but was reluctant until he had a pardon.

Mr. Brown, who had been sentenced to life imprisonment, is far more reticent than Mr. McCollum, but he talked of starting a church or a radio ministry.

Both say that until Mr. McCrory issues them pardons, they cannot fully set aside what happened over about 31 years.

Theresa A. Newman, a co-director of the Wrongful Convictions Clinic at Duke University Law School, said such sentiments were common among men who had been cleared by judges but not by governors. She said the mostly closed nature of the lengthy process could prove demoralizing.

“Just having some information would be very, very powerful, and I think it would hold these men up slightly,” said Ms. Newman, who is not involved in the McCollum or Brown case. “Why would they trust the state to do the right thing?”

In a statement last week, a spokesman for Mr. McCrory, Ryan Tronovitch, said: “Our extensive review is ongoing, and we need to ensure that we have gathered and considered all relevant information as part of our process. While we can’t put an exact time frame on when a decision will come, this is a top priority for Governor McCrory, and he has made that abundantly clear to those involved.”

Lawyers here say the pardon process in North Carolina has been an enigmatic one for far longer than Mr. McCrory’s term. But Ms. Newman said that when a client of hers had sought a pardon from Mr. McCrory, the governor had been an active participant while he weighed his options. He even “grilled” the man during an interview as part of a process that took about six months, she said.

What remains unclear is how, exactly, Mr. McCrory’s process unfolds, and how much he considers any opposition to pardon applications. In the cases of Mr. McCollum and Mr. Brown, there is some, namely from the retired district attorney who prosecuted them.

The prosecutor, Joe Freeman Britt, who came to be known as the nation’s “deadliest D.A.” because he won death sentences so often, said, “There is no doubt in my mind that they’re not entitled to a pardon, and there is no doubt in my mind that they’re not entitled to compensation by the taxpayers.”

But the current district attorney, Johnson Britt (a distant relative of his predecessor), supported the men’s bids for freedom last year and told Judge Sasser that “the state does not have a case” and would not prosecute them again.

That support is partly why a lawyer for the men, Scott Brettschneider, said he hoped that “there isn’t something more here than just bureaucracy” as they waited for the governor’s decision.

Recently, a bank bet that the delay was only administrative, and it wrote a large enough loan that the men last week began renting a home where each has a bedroom. Mr. McCollum, who, since leaving prison, has sometimes referred to a bedroom as a cell, picked one at the top of a stairwell.

“This is my room right here,” he said softly as he looked around one afternoon. “This is my room.”

He said his favorite feature of the room, more than twice the size of his former cell on death row, is the lock on the wooden door. He can lock it — and unlock it — himself.

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