Saturday, April 13, 2019

Joe Bryan Denied Parole for Seventh Time

Though a forensic expert who testified against Bryan has admitted his conclusions were wrong, Bryan will remain behind bars.

by Pamela Colloff, ProPublica

The Texas Board of Pardons and Paroles denied Joe Bryan parole for a seventh time on Friday, citing the brutal nature of the crime he stands convicted of — the 1985 shooting death of his wife, Mickey — in concluding that the 78-year-old “poses a continuing threat to public safety.”

Bryan has twice been convicted of Mickey’s murder, which took place in their Clifton, Texas, home. Bryan, then a beloved high school principal, had been attending an education conference in Austin, 120 miles away, in the days surrounding the murder. He has always maintained that he was asleep in his hotel room at the time of the crime. His conviction, for which Bryan has spent 31 years in prison, rested largely on bloodstain-pattern analysis, a technique still in use throughout the criminal justice system, despite concerns about its reliability.

At an evidentiary hearing last year in Comanche, Texas, Bryan’s attorneys presented new evidence that jurors who convicted him never heard — most notably, that the forensic testimony used to convict him was erroneous. “My conclusions were wrong,” retired police Detective Robert Thorman, who performed the bloodstain-pattern analysis in the case, wrote in a sworn affidavit submitted to the court. “Some of the techniques and methodology were incorrect. Therefore, some of my testimony was not correct.”

Last July, before the hearing, the Texas Forensic Science Commission — which investigates complaints about the misuse of forensic testimony and evidence in criminal cases — announced that the blood-spatter analysis used to convict Bryan was “not accurate or scientifically supported.”
In December, however, Judge Doug Shaver, who presided over the evidentiary hearing,
recommended that Bryan’s conviction stand, and that he not be granted a new trial. Shaver adopted the prosecution’s findings in their entirety. This included an argument by Bosque County District Attorney Adam Sibley acknowledging that parts of Thorman’s testimony were incorrect but arguing that it didn’t matter: “Thorman’s testimony was not important to the case.”

Bryan’s plea for a new trial is currently before the Texas Court of Criminal Appeals. Its justices may take as long as they like to consider the case, a fact that does not work in Bryan’s favor, since he suffers from congestive heart failure.

The board’s denial followed a concerted effort on the part of Bryan’s parole attorneys, Allen and Shea Place, and the Bryan family to win his release. They hoped that Bryan’s sterling disciplinary record, combined with the revelations of the Comanche hearing, would bring a different result.
The parole board’s reasoning in rendering its decision will never be known. Its members’ deliberations, as well as the documents and testimony they reviewed, are exempt from state open record laws. Who opposed Bryan’s bid for parole, and what they told parole board members, also is confidential.

“I’m in total disbelief,” said Joe’s oldest brother, James, from his home in Houston. “How is a 78-year-old man whose heart is failing, who can barely walk 20 paces without breathing hard, a danger to society? How is a man who hasn’t had a single disciplinary problem in over 30 years in prison a danger?”

Sibley was not available for comment at the time of publication but has previously declined to comment on the Bryan case.

Bryan’s attorney Jessica Freud sees Texas’ highest criminal court as Bryan’s last chance for redemption. “All we can do is continue to anxiously await a decision from the Court of Criminal Appeals,” she said, “and hope that the court will act in time to prevent an innocent man from dying in prison.”
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Sunday, March 31, 2019

HUD Sues Facebook Over Housing Discrimination and Says the Company’s Algorithms Have Made the Problem Worse

The Department of Housing and Urban Development announced Thursday it is suing Facebook for violating the Fair Housing Act by allowing advertisers to limit housing ads based on race, gender and other characteristics.

The agency also said Facebook’s ad system discriminates against users even when advertisers did not choose to do so.
ProPublica first reported in 2016 that Facebook allowed housing advertisers to exclude users by race. Then in 2017, ProPublica found that — despite Facebook’s promised changes — the company was still letting advertisers exclude users by race, gender, ethnicity, family status, ability and other characteristics.

“Facebook is discriminating against people based upon who they are and where they live,” HUD Secretary Ben Carson said in a statement. “Using a computer to limit a person’s housing choices can be just as discriminatory as slamming a door in someone’s face.”

In a statement, Facebook said, “We’re surprised by HUD’s decision, as we’ve been working with them to address their concerns and have taken significant steps to prevent” ad discrimination.
HUD’s suit comes a week after Facebook announced sweeping changes to its advertising portal, preventing landlords, employers and lenders from discriminating in housing, employment or credit ads.

Facebook also disputed HUD’s conclusion that the system itself discriminates beyond advertisers’ choices: “HUD had no evidence and finding that our AI systems discriminate against people.”
A Facebook spokesperson told ProPublica that the company declined to give HUD data about who is actually seeing ads because of privacy concerns.

Asked about that, HUD spokesman Brian Sullivan said, “We are bound, and Facebook itself is bound, not to disclose sensitive negotiations, and so there’s very little we can say to that point.”
Peter Romer-Friedman, an employment attorney involved in multiple lawsuits that Facebook settled last week, said HUD’s suit — and the contention that Facebook’s algorithm is amplifying discrimination — may have implications for other cases related to employment and Facebook ads. “The point that the HUD complaint makes about bias in the delivery algorithm is the same exact point that we’ve been making for nearly a year” in another case involving alleged age discrimination on Facebook, Romer-Friedman said.

Thursday’s charge comes after a year of litigation from housing groups. In March 2018, the National Fair Housing Alliance sued Facebook, alleging it allowed advertisers to discriminate against legally protected groups, including mothers, the disabled and Spanish speakers. A few months later, the Department of Justice filed a statement of interest in the case. Soon after, HUD filed a formal complaint, signaling that it had found enough evidence during its initial investigation to raise the possibility of further legal action.

Facebook’s previous response to HUD contended that advertisers — not the company — were responsible for targeting ads. In March 2018, Facebook spokesman Joe Osborne said at the time: “There is absolutely no place for discrimination on Facebook. We believe this lawsuit is without merit, and we will defend ourselves vigorously.”

HUD’s suit against Facebook is an unusual decision for the Trump administration. It has frequently moved to curtail civil rights investigations. At the same time, Facebook and other social platforms have faced criticism by conservatives who allege their posts expressing political views are being suppressed.
Carson is scheduled to testify on the Hill in budget hearings on April 3.
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Sunday, March 24, 2019

Aging Machines, Crowds, Humidity: Problems at the Polls Were Mundane but Widespread


Instead of fireworks from voter intimidation or cyberattacks, Americans grappled with the mundane frustrations of using dated equipment to vote in huge numbers.

by Ian MacDougall, Jessica Huseman, and Isaac Arnsdorf, ProPublica

If the defining risk of Election Day 2016 was a foreign meddling, 2018’s seems to have been a domestic overload. High turnout across the country threw existing problems — aging machines, poorly trained poll workers and a hot political landscape — into sharp relief.
Michael McDonald, a political science professor at the University of Florida who studies turnout, says early numbers indicate last November's midterm saw the highest percentage turnout since the mid-’60s. “All signs indicate that everyone is now engaged in this country — Republicans and Democrats,” he said, adding that he expects 2020 to also be a year of high turnout. “Election officials need to start planning for that now, and hopefully elected officials who hold the purse strings will be responsive to those needs.”

Aging Technology

Electionland monitored problems across the country on Election Day, supporting the work of 250 local journalists in more than 120 local newsrooms. Thousands of voters reported issues at the polls, and Electionland sought to report on as many as possible. The most striking problem of the night was perhaps the most predictable — aged or ineffective voting equipment caused hourslong lines across the country.

American voting hasn’t had a major technology refresh since the early 2000s, in the aftermath of the Florida recount and the passage of the 2002 Help America Vote Act, which infused billions of dollars into American elections. More recent upgrades, such as poll books that could be accessed via computer, were supposed to reduce bottlenecks at check-ins — but they repeatedly failed on election day, worsening waits in Georgia, South Carolina and Indiana.

                                                               Read More>>

Sunday, March 17, 2019

The Story Behind Jared Kushner’s Curious Acceptance Into Harvard

ProPublica editor Daniel Golden wrote a book a decade ago about how the rich buy their children access to elite colleges. One student he covered is now poised to become one of the most powerful figures in the country.

by Daniel Golden, ProPublica

I would like to express my gratitude to Jared Kushner for reviving interest in my 2006 book, “The Price of Admission.” I have never met or spoken with him, and it’s rare in this life to find such a selfless benefactor. Of course, I doubt he became Donald Trump’s son-in-law and consigliere merely to boost my lagging sales, but still, I’m thankful.

My book exposed a grubby secret of American higher education: that the rich buy their under-achieving children’s way into elite universities with massive, tax-deductible donations. It reported that New Jersey real estate developer Charles Kushner had pledged $2.5 million to Harvard University in 1998, not long before his son Jared was admitted to the prestigious Ivy League school. At the time, Harvard accepted about one of every nine applicants. (Nowadays, it only takes one out of twenty.)

I also quoted administrators at Jared’s high school, who described him as a less than stellar student and expressed dismay at Harvard’s decision.

“There was no way anybody in the administrative office of the school thought he would on the merits get into Harvard,” a former official at The Frisch School in Paramus, New Jersey, told me. “His GPA did not warrant it, his SAT scores did not warrant it. We thought for sure, there was no way this was going to happen. Then, lo and behold, Jared was accepted. It was a little bit disappointing because there were at the time other kids we thought should really get in on the merits, and they did not.”
Risa Heller, a spokeswoman for Kushner Companies, said in an email Thursday that “the allegation” that Charles Kushner’s gift to Harvard was related to Jared’s admission “is and always has been false.” His parents, Charles and Seryl Kushner, “are enormously generous and have donated over 100 million dollars to universities, hospitals and other charitable causes. Jared Kushner was an excellent student in high school and graduated from Harvard with honors.” (About 90 percent of Jared’s 2003 class at Harvard also graduated with honors.)

My Kushner discoveries were an offshoot of my research for a chapter on Harvard donors. Somebody had slipped me a document I had long coveted: the membership list of Harvard’s Committee on University Resources. The university wooed more than 400 of its biggest givers and most promising prospects by putting them on this committee and inviting them to campus periodically to be wined, dined, and subjected to lectures by eminent professors.

My idea was to figure out how many children of these corporate titans, oil barons, money managers, lawyers, high-tech consultants and old-money heirs had gone to Harvard. A disproportionate tally might suggest that the university eased its standards for the offspring of wealthy backers.
I began working through the list, poring over “Who’s Who in America” and Harvard class reunion reports for family information. Charles and Seryl Kushner were both on the committee. I had never heard of them, but their joint presence struck me as a sign that Harvard’s fundraising machine held the couple in especially fond regard.

The clips showed that Charles Kushner’s empire encompassed 25,000 New Jersey apartments, along with extensive office, industrial and retail space and undeveloped land. Unlike most of his fellow committee members, though, Kushner was not a Harvard man. He had graduated from New York University. This eliminated the sentimental tug of the alma mater as a reason for him to give to Harvard, leaving another likely explanation: his children.

Sure enough, his sons Jared and Joshua had both enrolled there.

Charles Kushner differed from his peers on the committee in another way; he had a criminal record. Five years after Jared entered Harvard, the elder Kushner pleaded guilty in 2004 to tax violations, illegal campaign donations, and retaliating against a witness. (As it happens, the prosecutor in the case was Chris Christie, recently ousted as the head of Trump’s transition team.) Charles Kushner had hired a prostitute to seduce his brother-in-law, who was cooperating with federal authorities. Kushner then had a videotape of the tryst sent to his sister. He was sentenced to two years in federal prison.
I completed my analysis, which justified my hunch. Of the 400-plus tycoons on Harvard’s list — which included people who were childless or too young to have college-age offspring — more than half had sent at least one child to the university.

I also decided that the Kushner-Harvard relationship deserved special attention. Although the university often heralded big gifts in press releases or a bulletin called — in a classic example of fundraising wit, “Re:sources” — a search of these outlets came up empty. Harvard didn’t seem eager to be publicly associated with Charles Kushner.

While looking into Kushner’s taxes, though, federal authorities had subpoenaed records of his charitable giving. I learned that in 1998, when Jared was attending The Frisch School and starting to look at colleges, his father had pledged $2.5 million to Harvard, to be paid in annual installments of $250,000. Charles Kushner also visited Neil Rudenstine, then Harvard president, and discussed funding a scholarship program for low- and middle-income students.

I phoned a Harvard official, with whom I was on friendly terms. First I asked whether the gift played any role in Jared’s admission. “You know we don’t comment on individual applicants,” he said. When I pressed further, he hung up. We haven’t spoken since.

At Harvard, Jared Kushner majored in government. Now the 35-year-old is poised to become the power behind the presidency. What he plans to do, and in what direction he and his father-in-law will lead the country, are far more important than his high school grades.

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Thursday, February 28, 2019

FBI Scientist’s Statements Linked Defendants to Crimes, Even When His Lab Results Didn’t

by Ryan Gabrielson, Propublica

A man stepped into a rural South Carolina bank a few days before Christmas in 2001, aimed a gun at tellers and stole $7,800 from the drawers. Witnesses couldn’t identify the robber. The surveillance video was too grainy to help investigators.

More than three years later, FBI agents narrowed the investigation to a suspect. They believed John Henry Stroman robbed the bank. But during questioning, Stroman told them the security footage instead showed his brother, Roger. How could investigators prove one brother was the robber and not the other? Agents shipped the video and pictures of both Stromans to the FBI Laboratory in July 2005.

The package went to Richard Vorder Bruegge, one of the bureau’s image examiners.
In his report, Vorder Bruegge wrote that John Henry Stroman and the robber had similar “overall shape of the face, nose, mouth, chin, and ears.” But Vorder Bruegge stopped short of declaring a match, saying the video and pictures were too low resolution for that.

Nevertheless, prosecutors said in court filings that if Vorder Bruegge took the stand, he would testify that “the photograph is of sufficient resolution to definitively state that the robber is John Henry Stroman.” The judge said the testimony would be admitted if the case went to trial. A week later, Stroman accepted a plea deal.

It wasn’t the first time, nor the last, Vorder Bruegge’s lab results said one thing and the courts were told something different. Court records and FBI Lab files show statements by prosecutors or Vorder Bruegge veered from his original conclusions in at least three cases.

Vorder Bruegge, who earned a doctorate in geology 28 years ago, came to the FBI after abandoning his hopes of becoming an astronaut. He had no crime laboratory experience, but he quickly became a force in the forensic sciences.

Now 55, he is the most prominent member of the Forensic Audio, Video and Image Analysis Unit at the FBI Lab in Quantico, Virginia. The unit’s comparisons can advance investigations by sharpening pictures and narrowing the list of suspects. But most of the image examiners’ lab work has no scientific basis proving their methods are reliable and findings are correct.

A ProPublica investigation, published in January, found that image examiners’ methods have never had a strong scientific foundation. The bureau’s use of the unit’s findings as trial evidence troubles many experts and raises anew questions about the role of the FBI Lab as a standard-setter in forensic science.

Such shortcomings could have led judges to block image analysis from criminal trials. But Vorder Bruegge single-handedly built a body of case law that has kept the FBI unit’s testimony admissible in the courts. His 22-year-old comparison of bluejeans is the legal foundation for most photo comparison methods.

The FBI Lab’s image unit had routinely used unproven techniques since the 1960s, but Vorder Bruegge embraced and expanded them, according to court records and his published articles. At times, he has given jurors baseless statistics to say the risk of error was almost zero. Studies on several methods in the past decade have found them unreliable.

Today, Vorder Bruegge is one of the nation’s most influential crime lab scientists. He serves on the Forensic Science Standards Board, which sets rules for every field, from DNA to fingerprints. He’s a co-chair organizing the American Academy of Forensic Sciences meeting this week in Baltimore, a gathering of thousands of crime lab professionals, researchers, lawyers and judges.

Vorder Bruegge has testified for the federal government so often, and so successfully, that a 2013 law review article referred to him as “perhaps the most ubiquitous of the United States expert witnesses.”
ProPublica requested an interview with Vorder Bruegge and sent him written questions. The FBI declined the requests and did not respond to the questions.

Vorder Bruegge has produced an extensive public record detailing and defending his practices during his 24-year career at the FBI. Image analysis typically involves scrutinizing pictures from crime scenes to determine if suspects’ faces, hands, clothes or cars match, according to court documents and published articles. Examiners base their identifications on the pattern they see along a shirt seam, the shape of an ear or a cluster of freckles.

At a conference in Seattle last year, Vorder Bruegge recounted the most common criticism he hears from defense attorneys: he’s just looking at pictures, no different than anyone else with eyesight.
Vorder Bruegge has a ready response.

“Yes, I’m just looking at this pair of images,” Vorder Bruegge said, “the same way a radiologist looks at an X-ray. Anyone in this room can look at an X-ray, just look at it. But who do you want deciding what type of treatment you are going to get as a result of examination of that radiograph? Do you want anyone in this room to determine if you have cancer, or if you just have an artifact in your image?”

Radiologists and FBI image examiners both work with pictures. The similarities end there. Radiology is exhaustively researched and its methods continually tested to make certain they are reliable. Radiologists must graduate from medical school and complete four-year residency programs before they diagnose patients.

Image examiners rarely have advanced degrees. New examiners learn how to analyze pictures by doing casework with lab veterans. Their methods remain unproven, at best.

Vorder Bruegge, however, has not only a doctorate in geology but an ease with the language and standards of science. At public events, he sounds like a progressive voice urging crime labs to improve, said Hal Stern, a University of California, Irvine, statistics professor who researches forensic science methods.

Despite that public image, Vorder Bruegge has used unproven science throughout his career.
“It’s a little disturbing, to be sure,” Stern said.

From the Cosmos to Forensics

Vorder Bruegge moved to Providence, Rhode Island, in the fall of 1981 for his freshman year at Brown University, a couple of hours from his family’s home in Connecticut. He majored in electrical engineering and spent summers working for a data processing company.

His focus turned sharply during a planetary science course on the solar system, taught by geology professor James Head III. Over the years, Head’s lectures have inspired many Brown undergraduates to study space, “including Rich,” said Scott Murchie, who met Vorder Bruegge while both were graduate students.

Vorder Bruegge completed his bachelor’s degree in engineering in 1985, then secured a place on Head’s research team. He would study Venus’ mountain belts while earning a master’s degree and doctorate in planetary geology. He met his future wife, a fellow Venus researcher, and aspired to join the NASA space program.

Duane Bindschadler worked alongside Vorder Bruegge examining Soviet radar images of Venus’ surface. Vorder Bruegge was innovative from the start, Bindschadler said, “trying to come up with new interpretations or extract new information from them.”

The research required complex image analysis, said Murchie, now a planetary scientist at the Johns Hopkins University Applied Physics Laboratory. Vorder Bruegge was one of several impressive students working with Head in the late 1980s. (Ellen Stofan, director of the Smithsonian’s National Air and Space Museum, was another.)

“I have nothing but wonderful things to say about Rich,” Murchie said. “He was a young researcher with a great deal of integrity.”

Vorder Bruegge finished writing his doctoral thesis in October 1990 and went to work that same month for a NASA contractor in Washington. He was providing technical support for space missions, but he intended to make it a stepping stone. “The person whose job I took left to become an astronaut and that was actually something I was trying to do, so I thought it would be a good career move,” Vorder Bruegge said during a 2008 court hearing in which he was asked about his credentials and training.

NASA chose new astronaut classes in 1992 and 1994; Vorder Bruegge didn’t make it to the interview stage of the intensely competitive process either time.

In January 1995, he again veered onto an entirely different course, taking a position at the FBI Lab on what was then called the Special Photographic Unit. He’d examine security video rather than spacecraft images.

Vorder Bruegge’s move to the FBI surprised some of his colleagues, said Bindschadler, now a systems engineer at the NASA Jet Propulsion Laboratory. “Scientists with kind of an academic bent, that isn’t the first place you think that people are going,” he said. “Especially if they’re in the physical sciences. I doubt the FBI employs more than one geologist.”

Vorder Bruegge’s resume shows that, even with his Ivy League degrees and image analysis experience, he started with a two-year apprenticeship under the unit’s veterans, same as any other photo examiner. But he proved his value shortly thereafter.

The U.S. Supreme Court had recently raised the standard for scientific evidence to require proof that methods are reliable. No one had tested any of the FBI Lab’s long-standing photo comparison techniques, let alone proven them trustworthy. Defense lawyers might be able to block image examiners’ testimony from trials outright.

The high court’s opinion lists several ways a method can meet the new requirement, including “peer review” — scrutiny by outside experts — and publication in a scientific journal.

In a 1996 bombing and bank robbery case in Washington state, Vorder Bruegge identified bluejeans in surveillance footage as the pair seized from a suspect. He used one of the unit’s established techniques: matching the series of light and dark spots along the seams.

Vorder Bruegge’s testimony helped convict defendants in the bombings. Then he used the case to secure something vital for his team: publication in a scientific journal. The new image examiner wrote an article describing the unit’s method of comparing bluejeans’ seams in pictures and submitted it to the Journal of Forensic Sciences.

In the article, Vorder Bruegge used technical terms — “ridge-and-valley pattern” and “planar surface” — that echoed his doctoral thesis about mountains on Venus. He included pictures showing his results, zoomed-in images of bluejeans with arrows pointing where the seams and hemlines allegedly matched.

The journal accepted Vorder Bruegge’s article and published it in spring 1999. The article repeatedly acknowledged that the technique had not been validated. Nonetheless, court records show Vorder Bruegge referenced the article in at least a dozen trials and hearings as proof that the image unit’s methods were reliable evidence.

At ProPublica’s request, several forensic scientists, statisticians and clothes manufacturing experts reviewed Vorder Bruegge’s article. They said the FBI examiner’s central claims were misleading or wrong.

Building a Legal Foundation

But in the years after the article on bluejeans identification was published, Vorder Bruegge won acclaim for his work. Newspapers ran short articles characterizing the method as a forensic science breakthrough. In interviews, Vorder Bruegge gave credit to his predecessors at the FBI . “I’m really standing on their shoulders,” he told the Chicago Tribune in June 1999, adding, “It’s exciting to find ways to show that everything around us is unique.”

The television documentary series “Forensic Files” aired an episode about the Washington state case a couple of years later. It featured Vorder Bruegge extensively, even showing him outfitted in a full-length lab coat to take pictures of bluejeans.

Over the following decade, Vorder Bruegge went on a legal winning streak. He convinced judges across the country that unproven methods were sound science.

ProPublica searched court databases and found more than a dozen criminal cases involving Vorder Bruegge’s lab work since 2000. In those cases, judges overruled each request from defense lawyers to block his testimony. The FBI did not respond to questions about Vorder Bruegge’s casework.

Courts have historically permitted evidence from the FBI Lab, sometimes without considering its accuracy. “Jurors think that if you’re a big FBI examiner you know it all,” said Alicia Carriquiry, an Iowa State University statistics professor and director of the Center for Statistics and Applications in Forensic Evidence.

Vorder Bruegge’s statements contradicted his written lab results in at least three cases, court and FBI Lab records show. His testimony in several other trials indicate he improvised techniques.
In a 2002 trial highlighted in ProPublica’s investigation of image analysis, Vorder Bruegge testified that he had identified a defendant’s plaid shirt as the shirt a robber wore to seven banks during a spree in South Florida. He told jurors only 1 in 650 billion plaid shirts would randomly match as precisely as the defendant’s shirt.

None of Vorder Bruegge’s lab reports included calculations to support the statistics he gave in court. In fact, the reports said nothing about how he reached his conclusions. And for one of the robberies, Vorder Bruegge wrote he could not conclusively match the defendant’s shirt to the robber’s. He said the opposite on the stand, according to trial transcripts.

At the time, Vorder Bruegge led a group that wrote most of the guidelines for law enforcement image analysis. It compiled a list of criminal cases in which judges ruled that examiners’ testimony was scientific evidence. Those provided the field with a kind of legal foundation, giving judges a clearer path to admitting photo comparison evidence.

The plaid shirt case, U.S. v. McKreith, was the first to win clearance for image analysis. Vorder Bruegge’s facial comparisons in the South Carolina bank robbery case, U.S. v. Stroman, is another.
In child pornography cases, prosecutors must often provide evidence that video and pictures show actual children. Such “authentication” has become part of FBI image unit’s regular caseload. During a 2008 federal court hearing in Boston, the transcript shows Vorder Bruegge estimated a victim’s age in a picture based solely on the size of her breasts and pubic hair.

The image analysis group lists that case, U.S. v. Frabizio, as another piece of the field’s legal foundation.

In his presentations and articles,Vorder Bruegge hasn’t mentioned perhaps the most remarkable legal victory of his career. To bolster a conviction that was being challenged, Vorder Bruegge took the stand in 2010 to assail his field’s most common method and dispute his own lab results.

A jury had convicted 19-year-old Brian Avery in 1995 of participating in two armed robberies at Milwaukee convenience stores. Prosecutors built their case on witness identification and Avery’s confession during police interrogation, court records show. (Avery recanted his confession and declared his innocence thereafter.) The trial judge sentenced him to more than 20 years in prison.
Lawyers at the Wisconsin Innocence Project took up Avery’s case in 2007. They hired a video analyst to measure the robber’s height in surveillance footage. The images had been too fuzzy to use at trial. But in intervening years, software engineers had developed programs to filter and sharpen pictures and others to measure the distance between pixels.

FBI examiners have calculated criminals’ heights in pictures for decades using a collection of techniques called “photogrammetry.” Computers increasingly allowed the bureau and others to analyze low-quality images.

Avery stood 6 feet, 3 inches tall when police booked him into jail.

The innocence project’s video expert, unaware of Avery’s actual height, determined the robber was under 6 feet tall, according to court records. The defense lawyers filed a motion for a new trial.
Local prosecutors asked the FBI Lab to see if its own analysis could include Avery. Vorder Bruegge determined the robber could not have been taller than 6 feet, 2 inches, court records show. Therefore, the Lab’s own results also found Avery was at least an inch taller than the robber, which the defense team argued exonerated him.

However, Vorder Bruegge’s testimony at an appellate hearing did otherwise. He said the photogrammetry method is too imprecise to reliably rule out a suspect. “I am saying you can’t determine absolutely that it can’t be this person,” he said of Avery. “That is the bottom line of my examination.”

The bureau’s examiners have presented height measurements in court in scores of criminal cases.
Under cross examination, Vorder Bruegge acknowledged he knew Avery’s height before starting his analysis. That height — 6 feet, 3 inches — was what prosecutors hoped Vorder Bruegge would calculate for the robber. Such information can influence how an examiner performs lab work and reaches conclusions.

More than a dozen scientists and law professors filed a brief with the Wisconsin Supreme Court urging the judges to disregard the FBI examiner’s testimony as severely biased by trial records, especially details on Avery’s height.

The state Supreme Court did not disregard Vorder Bruegge’s testimony. Rather, the judges accepted his argument that height measurements aren’t scientifically reliable enough and denied Avery a new trial.

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Wednesday, February 13, 2019

Appeals Court Rules Key Anti-Age Discrimination Protections Don’t Apply to Job Seekers, Only Employees

by Peter Gosselin Feb. 12, 3:11 p.m. EST

In a decision last month, the 7th U.S. Circuit Court of Appeals in Chicago has sharply limited a federal law that protects workers who are 40 and older from age bias by ruling that key provisions only apply to those who already have jobs, not those seeking them.

The 8-4 decision, written by Circuit Judge Michael Scudder, a Trump administration appointee, said the “plain language” of the Age Discrimination in Employment Act shows that in enacting the measure, Congress aimed its sweeping prohibition against discrimination at employees but “did not extend that same protection to outside job applicants.”

The ruling prompted a fierce dissent from Circuit Judge David Hamilton, an Obama administration appointee, who accused the majority of taking a “deliberately na├»ve approach” to the law and “closing its eyes to fifty years of history, context and application.”

The ADEA’s anti-discrimination language originally matched that of the 1964 Civil Rights Act, which covers race, gender, religion and other categories. And for much of the last half-century, federal courts have treated provisions of the two laws as largely interchangeable.

The ruling came in a lawsuit brought by an Illinois lawyer, Dale Kleber, who was 58 in 2014 when he applied for a senior attorney position with CareFusion Corp., a unit of medical device maker Becton Dickinson & Co., but was passed over for an interview. The job eventually went to a 29-year-old candidate.

Kristen Cardillo, a spokeswoman for Becton Dickinson, said in statement the company was “pleased” with the decision. “Fostering an inclusive and diverse culture is at the very heart of our core values,” she said. Lawyers for Kleber said they haven’t decided whether to appeal to the U.S. Supreme Court.
The decision in the Kleber case is the second in which an appeals court has said that the ADEA’s strongest provisions only apply to employees and one in a string of cases since the 1990s that have shrunk what counts as age discrimination, giving employers new leeway to oust or refuse to hire older workers.

A deeply divided 11th U.S. Circuit Court of Appeals in Atlanta ruled in 2016 that executive Richard Villarreal, then 49, had not suffered age discrimination when a subcontractor for R.J. Reynolds Tobacco Co., following Reynolds guidelines, discarded his resume and those of almost 20,000 other older applicants in hiring a regional sales manager. Among other things, Reynolds’ lawyers argued that if the law was read to apply to applicants it could prohibit hiring programs for internships and entry positions aimed at young people and “impose massive litigation costs on employers.”
The majority in the Chicago case cited the Villarreal decision in ruling against Kleber.
Sen. Robert Casey, a Pennsylvania Democrat who’s the ranking member on the Senate Select Committee on Aging, called the new decision “yet another example of the discrimination that older workers face – either on the job or while applying for a job.”

Casey called for strengthening the ADEA.

Dara Smith, a senior attorney with the AARP Foundation who represented Kleber, called the Chicago ruling “very disappointing and frustrating” and said it means that the ADEA is “not particularly useful for older job applicants.”

While she said the law still bans explicit age limits in job postings, she acknowledged the prohibition is weak. The Chicago court rejected Kleber’s argument that the language in CareFusion’s job ad, which asked for applicants to have “no more than 7 years” experience, effectively ruled out older workers like him from applying.

Under the law, older applicants and employees can still prevail if they can prove employers intentionally discriminated against them. But in a 2009 decision, the Supreme Court set a higher bar for proving intentional age bias than for any other type of legally prohibited discrimination, saying that age must be the sole reason for a worker being unfairly treated.

The issue of whether anti-age discrimination protections cover job applicants has taken on new importance as evidence has mounted that older workers are more apt than generally appreciated to lose longtime jobs and have trouble getting hired for anything like comparable work.
ProPublica and the Urban Institute, a Washington think tank, analyzed data from a government-funded study that since 1992 has followed a nationally representative sample of Americans from the time they turn 50 through the rest of their lives.

The analysis, published in December, showed that between entering the study and leaving paid employment, 56 percent of older workers were laid off or left longtime jobs under such financially damaging circumstances it’s likely they were forced out. Only one in 10 of these workers ever again earns as much as they did before their employment setback.

In both the Chicago and Atlanta cases, the decisions that federal anti-age bias protections don’t apply to job applicants prompted sharply worded dissents.

The dissenters argued that drawing a line between employees and job applicants ignores the intent of the legislators who wrote and enacted the ADEA. “In simple terms,” said Ralph Yarborough, a U.S. senator from Texas who was the measure’s chief sponsor, during a hearing, “this bill prohibits discrimination in hiring and firing.”

Hamilton, who wrote the dissent in the Chicago case, said the majority decision “undermines the stated purpose of the statute…to address unfair employment practices that make it harder for older people to find jobs.”
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Tuesday, January 29, 2019

Power to the (rich) people!

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Why Aren’t Hedge Funds Required to Fight Money Laundering?

For many years, the federal government has required banks, brokerages and even casinos to take steps to stop customers from using them to clean dirty money.

Yet one major part of the financial system has remained stubbornly exempt, despite experts’ repeated warnings that it is vulnerable to criminal manipulation. Investment companies such as hedge funds and private equity firms have escaped multiple efforts to subject them to rules meant to combat money laundering.

The latest attempt, which began in 2015, appears to have ground to a halt, according to sources familiar with the process.

“You’ve got several trillion dollars, the management of which nobody is required to ask any questions about where that money is coming from,” said Clark Gascoigne, deputy director of the Financial Accountability and Corporate Transparency Coalition. “This is very problematic.”

The Financial Action Task Force, an intergovernmental organization that seeks to combat money laundering around the world, characterized the lack of anti-money laundering rules for investment advisers, such as those who manage hedge funds and private equity funds, as one of the United States’ most significant lapses in a report two years ago.

The push to regulate hedge funds and similar investment firms took off after the Sept. 11 attacks, when Congress passed the Patriot Act. Among other things, the law required federal agencies to take new steps to keep illicit money out of the U.S. financial system. The Treasury Department exempted investment firms at the time, planning to return to them after tackling other sectors. “Eighteen years ago, the Patriot Act required investment companies to install their own AML [anti-money laundering] programs,” said Elise Bean, a former staff director of the U.S. Senate investigations subcommittee who supports the proposed rule. “But Treasury has yet to enforce the law,” she said.

The Treasury Department, through its Financial Crimes Enforcement Network, or FinCEN, initially proposed rules in 2002 and 2003 requiring firms like hedge funds and their investment advisers to adopt anti-money laundering measures. That attempt languished as FinCEN waited for the Securities and Exchange Commission to retool its approach, said Alma Angotti, who wrote the original proposal while at FinCEN and is now co-head of global investigations for the consulting firm Navigant. So much time passed that FinCEN withdrew the proposed rules in 2008. FinCEN then launched its second attempt to impose such regulations seven years later.

That second attempt is the one that has now crawled to a virtual stop. “It’s the kind of thing that should have taken two to three years, not 17,” said Joshua Kirschenbaum, senior fellow focusing on illicit finance at the nonpartisan think tank the German Marshall Fund and a former supervisor in FinCEN’s enforcement division.

Hedge funds and private equity funds can be attractive to big-dollar launderers who prize the funds’ anonymity, the variety of investments they offer and, in some cases, their use of off-shore tax and secrecy havens, experts say. After 2001, the number of annual hedge fund launches surged more than threefold, according to one report, and investments by high net worth individuals exceeded those of institutional investors.

“They’re a black box to everyone involved,” Kirschenbaum said. “They’re sophisticated and can justify moving hundreds of billions.”

Money launderers seek to hide illicit proceeds by making it appear they come from legal sources. Laundering hides crimes as diverse as drug dealing, tax evasion and political corruption. Experts say the massive, untracked streams of cash it creates can fuel more illegal activity, including terrorism.
That’s one reason banks are required to implement protocols aimed at identifying and reporting dodgy transactions to authorities, and verifying that customers are who they say they are.
FinCEN’s latest proposed rule targets investment advisers who manage funds for clients such as hedge funds. The rule would apply primarily to the largest advisers with $100 million or more in assets under management, who are required to register with the SEC.

“As long as investment advisers are not subject to AML program and suspicious activity reporting requirements, money launderers may see them as a low-risk way to enter the U.S. financial system,” the proposed rule states, noting that in 2014, 11,235 advisers registered with the SEC reported roughly $61.9 trillion in assets for their clients.

Foreign political corruption is one of the money laundering risks for investment advisers, Angotti said. Instead of needing quick access to their money, the ultra-wealthy involved in such graft often want to park their illicit profits somewhere safe, making them more tolerant of fund rules that can delay withdrawals for a year or more.

Having federal anti-money laundering protocols is no panacea. Regulators periodically conclude that certain banks and brokerages are not abiding by various aspects of the rules. Last year, for example, regulators announced more than $2 billion in penalties against Morgan Stanley Smith Barney, Charles Schwab & Co., UBS Financial Services, CapitalOne Bank and others, according to a company that tracks such enforcement. (The companies neither admitted nor denied the allegations against them.)
Experts say it’s impossible to quantify how much money may be laundered through hedge funds. And prosecutors retain the right to charge such a fund if it is proven to have participated in money laundering; but without the FinCEN rules, regulators cannot fine the fund’s managers for, say, not taking steps to prevent abuse.

There are multiple reasons the attempts to adopt rules have bogged down. The principal ones include the financial industry’s cascade of requests for modifications to the rule and inertia among federal bureaucracies, according to people familiar with the process.

The industry has tended to proclaim that it favors the principle of anti-money laundering rules — while simultaneously contesting many of the specifics. Several industry groups contend that the proposed rule overstates the risk that private equity funds will be used for illicit finance.

“We’re very supportive of having an aggressive AML regime,” said Jason Mulvihill, general counsel of the American Investment Council, which represents private equity funds. But, he added, “if you were trying to launder money, the last place you’d want to put it is in a private equity fund” because of the industry’s standard practice of requiring investors to leave their investments in place for 10 years. And, he added, most private equity firms already have some anti-money laundering policies in place, just in case.

Mulvihill’s organization has proposed that FinCEN exclude advisers who require investors to hold their investment for more than two years — a carve-out included in the original FinCEN proposal — which effectively would allow most private equity funds to remain exempt from the anti-money laundering rule.

The Investment Adviser Association also supports the goal of the regulations, said Karen Barr, the group’s president and CEO. But it worries that some advisers will need to implement costly changes that aren’t warranted. Those include advisers who also have clients for whom they provide recommendations, not money management. “We think investment advisers are a low risk because they don’t hold assets,” she added. More than half have 10 employees or fewer, she said, and “the sort of cumulative effect of all these regulations on small shops is really burdensome.”

In response to a request for an interview, a spokesman for the Managed Funds Association, which represents hedge funds, referred to a letter the group sent FinCEN in 2015, in which it stated that it “strongly supports adoption of the Proposed Rule.” The letter also included 25 pages of “background,” suggestions and requests for clarification.

Industry concerns were not the only reason for the rule’s stasis, said former FinCEN employees who spoke with ProPublica. They said staffing, competing agency priorities and other factors also contributed. The Trump administration’s general slowdown in rule-making added to delays, they said.
The rule’s implementation would also require coordination with the SEC, whose job it would be to make sure investment advisers are complying. Policing advisers has not been a major priority for the agency, which five years ago examined only 8 percent of registered advisers. The agency increased the number to 15 percent in 2017.

FinCEN and Treasury spokespeople did not return calls or provide answers to questions about the proposed rule that ProPublica sent by email. Many Treasury employees are not working because of the government shutdown. A spokesman for the SEC said the agency could not answer questions about the rule until the shutdown ended.

Seeing the rule flounder is vexing for Angotti. Some firms may be effectively executing their own anti-money laundering measures, she said. But without more scrutiny, she said, “who knows?” Such steps are expensive “and it requires them to turn away business,” Angotti said. “Without strong enforcement, it’s hard to get businesses to do this stuff.”
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