Brooklyn District Attorney Charles J Hynes will be deposed by the lawyer for a man who has accused Hynes of running a prosecutor's office, where misconduct is condoned, even rewarded. Hynes, who has denied the allegation, had sought to avoid answering questions under oath, but a federal judge ruled that he must
For more than two years, Jabbar Collins and his lawyer have pursued a multi-million dollar wrongful conviction lawsuit against New York City. They have unearthed what they claim is damning evidence of misconduct by prosecutors in the office of Brooklyn District Attorney Charles J. Hynes. They have obtained a sworn affidavit from a man who said he was forced by prosecutors to lie on the stand during Collins' murder trial.
They have named the individual prosecutors to hold them personally accountable.
But their aims have not been limited to establishing possible wrongdoing in the 1995 case that sent Collins to prison for 16 years. Instead, the lawsuit has included an additional, ambitious allegation: that Hynes, over many years, ran a district attorney's office that overlooked, condoned and even rewarded misconduct by its prosecutors.
It is a bracing assertion. And it is one Hynes, in legal papers filed by the city, had sought to avoid answering in person. Lawyers for the city, arguing on Hynes' behalf, said it was unnecessary or premature for Hynes to have to submit to questioning about the oversight of the men and women who worked for him. They asked a federal judge in Brooklyn to prevent Collins' lawyer from taking testimony from him under oath.
On Wednesday, that judge, Federal Magistrate Judge Robert Levy, ruled that Hynes would not be spared. Hynes, based on the judge's ruling, will have to sit for a deposition with Collins' lawyer, Joel Rudin, in August. The judge also rejected the city's bid to keep the deposition sealed. Hynes, who is running for a seventh term, is set to square off in a Democratic primary in September.
Outside the courtroom in Brooklyn, Collins said he was excited about the prospect of questioning Hynes.
"I think it's finally vindication to really confront him and have him answer under oath why he permitted the horrendous misconduct in my case to occur and why he failed to do anything about it," Collins said.
Lawyers for the city have rejected the claims that Hynes has been condoning misconduct. And they have portrayed Rudin's efforts to question him under oath as a stunt to humiliate the district attorney.
"Regrettably, plaintiff's fierce resistance to deposing other senior officials, together with his apparent proclivity to litigate this case in the press, betrays his motives: To embarrass the District Attorney by ambushing him with pointed questions from 50 separate cases that have been litigated in his office for the past 30 years or more, and then to play 'gotcha' when the DA understandably cannot recall specifics or details," city lawyers said in court papers.
Rudin has alleged in the lawsuit that Hynes' tacit policy of overlooking misconduct has led to repeated instances in which witnesses were secretly coerced into giving false testimony, exculpatory evidence was withheld, and coverups were mounted when defendants appealed. Rudin has asserted that he has found nearly 60 cases in which some or all of that kind of misconduct took place. In all those instances, Rudin asserts, no prosecutor involved was ever disciplined. Instead, he has claimed in court papers, Hynes has "praised and promoted them, thereby encouraging future constitutional violations to occur."
Rudin has also argued that the pervasiveness of misconduct in Hynes' office demonstrates that prosecutors are improperly trained to handle exculpatory evidence when they discover it. In fact, he claims that prosecutors "were permitted and/or encouraged to refrain from making any record of false or inconsistent out-of-court statements of prospective prosecution witnesses." That way, they'd never have to turn such material over to the defense as the law requires, Rudin has claimed in the lawsuit.
All of this, Rudin has alleged, produced "overall deliberate indifference" to misconduct in Hynes' office. And that attitude, he has said, helped explain the misconduct that Rudin has alleged against the lead prosecutor in Collins' murder case decades ago. Rudin has accused that prosecutor, Michael Vecchione, of having engineered false testimony against Collins and then having overseen an effort to deny him access to records that might have freed him from prison. Collins was released after 16 years after he won a rare bid in federal court to have his case re-examined.
Vecchione has denied each and every one of Rudin's claims, and lawyers for the city have continued to insist that Collins is guilty.
Vecchione was scheduled to be deposed by Rudin on Friday. However, Vecchione, who has been a principal character in CBS' current series "Brooklyn DA," had asked to have the deposition postponed because he was busy on a case. Judge Levy, however, ordered that Vecchione be deposed no later than June 24.
At the hearing, the city withdrew its argument that certain emails and other records turned over to Rudin and Collins by Hynes' office be kept under court seal.
After the deadly building collapse in Bangladesh, Walmart released a list of factories it had banned. But it has continued receiving shipments from two of them
Since the Rana Plaza building collapse killed more than 1,100 people in April, retailers have faced mounting pressure to improve safety at Bangladesh garment factories and to sever ties with manufacturers that don't measure up.
The world's largest retailer, Walmart, last month released a list of more than 200 factories it said it had barred from producing its merchandise because of serious or repeated safety problems, labour violations or unauthorized subcontracting.
But at least two of the factories on the list have continued to send massive shipments of sports bras and girls' dresses to Walmart stores in recent months, according to interviews and U.S. customs records.
In June 2011, Walmart said, it banned the Bangladeshi garment factory Mars Apparels from producing goods for the retail giant. But over the last year, Mars has repeatedly shipped tons of sports bras to Walmart, according to U.S. customs records and Mars owners. The most recent shipment was in late May, almost two years after Walmart claims it stopped doing business with the Bangladeshi firm.
A second Bangladeshi clothing maker, Simco Dresses, was blacklisted in January but continued shipping to Walmart Canada into March.
Walmart spokesman Kevin Gardner said the Mars shipments were allowed because of confusion over whether Walmart's standards applied. Mars didn't produce garments with a Walmart house brand but instead with a Fruit of the Loom label. So, Gardner said, it wasn't clear if Mars needed to meet Walmart's standards or Fruit of the Loom's.
Fruit of the Loom could not immediately be reached for comment.
As for Simco, orders that Walmart had already placed were accepted to lessen the impact on workers, Gardner said.
The shipments raise questions about Walmart's ability to monitor its supply chain as well as its efforts to ensure decent working conditions in factories located in low-wage countries.
Interviews with Bangladeshi factory owners spotlight another potential problem: Walmart's approach of publishing a blacklist with no further details might unfairly tar family businesses with minor violations.
International labor groups have been pressing retailers to sign an accord to pay for fire and building safety upgrades to Bangladesh factories. So far, several large retailers including H&M, Inditex and PVH Corp., which includes Tommy Hilfiger and Calvin Klein, have signed onto the agreement.
But many of the biggest retailers in the United States, including Walmart and Gap, have not. Instead, they are working on an alternative plan that they say will improve safety faster — but that is not legally binding.
"We think the safety plan that we've put in place already meets or exceeds the [other] proposal and is going to get results more quickly," Gardner said. "The point of the list is to get more accountability and transparency into our supply chain."
Soon, he said, Walmart would also publish safety audits of its current suppliers in Bangladesh.
Dan Schlademan, a United Food and Commercial Workers leader who directs the union's Making Change at Walmart campaign, said the shipments from barred factories show that Walmart's program is hollow.
"It's either a question of Walmart just telling people what they want to hear," he said, "or it's that Walmart has created a supply chain system that they have no control over."
Making Change at Walmart initially provided the customs data. ProPublica verified the information and found other shipments using public data compiled by research firms serving the import-export industry.
Mars Apparels is a manufacturer of lingerie and sportswear in the port city of Chittagong. In the last year, the garment maker sent at least 22 shipments, totaling 80 tons, of sports bras through the Port of Newark, according to customs records compiled by Import Genius, a data consultant for the import-export industry. In each case, the customer was listed as "Walmart Stores" and the product mark as "Ariela-Alpha International," whose brands include L.e.i. and Fruit of the Loom. (Ariela-Alpha did not return phone calls.)
Reached on a cell phone in Bangladesh, Shaker Ahmed, deputy managing director of Mars Apparels and the son of its founder, confirmed the customs data and said that the latest shipment went out last month. (Customs data show several May shipments in which the customer was listed as "WMR.")
But Ahmed said that until contacted by ProPublica, he had never had any problems with Walmart or heard about its list of banned factories. He described Mars as a medium-sized garment manufacturer with less than 1,000 workers.
Ahmed said Mars has supplied Walmart for more than a decade, though since 2008 it has been making clothes for private labels such as Fruit of the Loom that are owned or licensed by an importer, which then supplies the clothing to Walmart.
When Mars was manufacturing clothing for Walmart brands, its factory was regularly audited by the company, Ahmed said. Walmart rates its suppliers green, yellow, orange and red, with green being the best and red the worst, he said. "We never received a rating below yellow."
Since 2008, Ahmed said he has passed all audits by Fruit of the Loom, which uses the Worldwide Responsible Accredited Production program to inspect factories. Walmart said Mars didn't meet all of its criteria, which it said is more stringent than WRAP's. Ahmed said he welcomed Walmart to look at his factory and that the company is in the process of building a state-of-the-art facility.
Walmart accounts for a "very large" percentage of Mars' business, Ahmed said. "If Walmart were to tell us they're stopping production, if that were to happen, we would be destroyed. Our workers would be destroyed. We haven't had a single incident in 19 years. We never had a problem. So that would be catastrophe."
The other banned garment maker in the recent customs records, Simco Dresses, was blacklisted in January. The Import Genius records show three shipments of girls' dresses in February and March to the Isfel Co. destined for Walmart Canada. Isfel didn't return a call.
Customs records provided by another trade research firm PIERS show four more March shipments of knitted dresses and rompers, also destined for Walmart Canada.
The Bangladeshi press reported in January that Walmart had refused a shipment of women's shorts from Simco after discovering unauthorized subcontracting to Tazreen Fashion, where a fire killed 117 people last year. Simco said at the time that Walmart's ban could drive it into bankruptcy.
Simco's managing director Muzaffar Siddique said his firm had subcontracted an order to an authorized Walmart supplier, which then sent the work to Tazreen without its knowledge.
Asked about the February and March shipments from Simco, Walmart spokesman Gardner said, "If it isn't an egregious matter, we will accept goods produced under existing orders as part of our efforts to mitigate impact on the workers."
Siddique contended that Walmart's listing of his company is unfair and is damaging his family's business. After the list was published, he said J.C. Penney canceled a $300,000 order for 500,000 pairs of pajamas.
"We are very upset about it," Siddique said. "When I do business with you, it is like a doctor-patient relationship; there should be confidentiality. Walmart has no business going about publishing people's names that it thinks are bad because that jeopardizes other business we are doing with our customers."
Walmart is the only U.S. retailer to release a list of barred factories in Bangladesh. Gap, which also has a large presence in Bangladesh, said in a May statement that it has committed up to $22 million for factory improvements and that its stepped-up inspections have already led to some vendors upgrading their plants. But the company has said it would not sign on to the accord because of a provision that could allow victims of future factory accidents to sue the companies in U.S. courts.
Walmart, Gap and other large retailers are moving forward with developing an alternative safety plan with the help of former U.S. Sens. George Mitchell, D-Maine, and Olympia Snowe, R-Maine.
"We are committed to Bangladesh," Gardner said. "We understand the role that we play in improving the livelihood of factory workers in that country. And improving the safety of those workers is very important to us."
But Walmart's approach of naming factories as "red-failed/unauthorized" has led to criticism in the Bangladeshi garment community that Walmart is trying to shift blame rather than serve as a partner.
"What Wal-Mart is doing at the moment is nothing but saving its own skin," Reaz Bin Mahmood of the Bangladesh Garment Manufacturers and Exporters Association told Reuters. "As a responsible business partner they should stay with us and help improve working conditions for the safety and security of workers."
Following reports that the FISA Court has granted an FBI request requiring Verizon to turn over telephone call data to the NSA, we've updated this story to show what information law enforcement agencies can get on you without establishing "probable cause"
Update June 6, 2013: This post has been revised to reflect reports of regular FBI and National Security Agency surveillance of domestic phone records under a provision of the Patriot Act. It was originally published Dec. 4, 2012.
The U.S. government isn't allowed to wiretap American citizens without a warrant from a judge. But there are plenty of legal ways for law enforcement, from the local sheriff to the FBI to the Internal Revenue Service, to snoop on the digital trails you create every day. Authorities can often obtain your emails and texts by going to Google or AT&T with a simple subpoena. Usually you won't even be notified.
The latest twist: A secret court order made public by the Guardian newspaper on Wednesday shows that the FBI has successfully requested call "metadata" — including the time, duration and location of phone calls, though not what was said on the calls — under provisions of the Patriot Act. Signed by senior federal Judge Roger Vinson on April 25, the order directs Verizon Business Network Services to provide all call information to the National Security Agency each day for a three-month period.
Whether such sweeping surveillance requests should be allowed under the Patriot Act is a matter of heated debate in Congress. Sen. Dianne Feinstein, D-Calif., who chairs the Senate Select Committee on Intelligence, suggested on Thursday that Vinson's order was just a regular renewal of surveillance that's taken place for years. But disclosure of the order also prompted calls to rein in the practice, including from Sen. Richard J. Durbin, D-Ill., the No. 2 Democrat in the Senate. On another front, two senators introduced legislation in March to bolster privacy protection for emails; action is pending.
Against that backdrop, here's a look at how law enforcement can track you without a warrant:
PHONE RECORDS: Who You Called, When You Called
Listening to your phone calls without a judge's warrant is illegal if you're a U.S. citizen. But police don't need a warrant — which requires showing "probable cause" of a crime — to get just the numbers you called and when you called them, as well as incoming calls, from phone carriers. Instead, police can get courts to sign off on a subpoena, which only requires that the data they're after is relevant to an investigation — a lesser standard of evidence. The FBI can also request a secret court order for phone records related to an international terrorism or spying investigation without showing probable cause. A recent court order obtained by the Guardian newspaper shows that the FBI requested all phone records over a three-month period from Verizon Business Network Services in April. Sen. Saxby Chambliss, a Georgia Republican and the vice chair of the Senate Intelligence Committee, suggested that such court orders were routine. "This is nothing particularly new," he said at a news conference with Sen. Dianne Feinstein, the Intelligence Committee's chairwoman. "This has been going on for seven years under the auspices of the FISA authority, and every member of the United States Senate has been advised of this."
What the law says
Police can get phone records without a warrant thanks to Smith v. Maryland, a Supreme Court ruling in 1979, which found that the Constitution's Fourth Amendment protection against unreasonable search and seizure doesn't apply to a list of phone numbers. The New York Times reported last November that New York's police department "has quietly amassed a trove" of call records by routinely issuing subpoenas for them from phones that had been reported stolen. According to the Times, the records "could conceivably be used for any investigative purpose." The Foreign Intelligence Surveillance Act, which Congress expanded in 2001 when it passed the Patriot Act, also allows the FBI to apply for a court order to get "any tangible things (including books, records, papers, documents, and other items)," including phone records. For example, the court order obtained by the Guardian covers all records from April 25 to July 19, which Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said was much more expansive than a typical warrant or a subpoena. "I've never seen a subpoena that broad," he said. The order covers "telephone metadata ... for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls."
LOCATION DATA: Your Phone Is a Tracker
Many cell phone carriers provide authorities with a phone's location and may charge a fee for doing so. Cell towers track where your phone is at any moment; so can the GPS features in some smartphones. The major cell carriers, including Verizon and AT&T, responded to at least 1.3 million law enforcement requests for cell phone locations, text messages and other data in 2011. Internet service providers can also provide location data that tracks users via their computer's IP address — a unique number assigned to each computer. The FBI can also apply for a court order to location data relevant to an international terrorism or spying investigation under FISA in the same way it requests other phone records.
What the law says
Many courts have ruled that police don't need a warrant from a judge to get cell phone location data. They only have to show that, under the federal Electronic Communications Privacy Act (EPCA), the data contains "specific and articulable facts" related to an investigation — again, a lesser standard than probable cause. Delaware, Maryland and Oklahoma have proposed laws that would require police to obtain a warrant for location data; Gov. Jerry Brown of California, a Democrat, vetoed a similar bill last September. Last year, the Senate Judiciary Committee approved a bill championed by Sen. Patrick Leahy, a Vermont Democrat, which would have updated the ECPA but wouldn't have changed how location data was treated. Leahy and Sen. Mike Lee, a Utah Republican, introduced a similar bill last month, which remains in committee. Rep. Zoe Lofgren, a California Democrat, introduced a separate bill in the House of Representatives in March that would require a warrant for location data as well as emails.
IP ADDRESSES: What Computers You Used
Google, Yahoo, Microsoft and other webmail providers accumulate massive amounts of data about our digital wanderings. A warrant is needed for access to some emails (see below), but not for the IP addresses of the computers used to log into your mail account or surf the Web. According to the American Civil Liberties Union, those records are kept for at least a year.
What the law says
Police can thank U.S. v. Forrester, a case involving two men trying to set up a drug lab in California, for the ease of access. In the 2007 case, the government successfully argued that tracking IP addresses was no different than installing a device to track every telephone number dialed by a given phone (which is legal). Police only need a court to sign off on a subpoena certifying that the data they're after is relevant to an investigation — the same standard as for cell phone records. FISA also allows the FBI to apply for a secret court order to get "any tangible things (including books, records, papers, documents, and other items)" relevant to an international terrorism or spying investigation. It is unclear whether IP addresses are considered "tangible things." The Foreign Intelligence Surveillance Court has issued legal opinions on how to interpret the law, but those opinions are classified.
EMAILS: Messages You Sent Months Ago
There's a double standard when it comes to email, one of the most-requested types of data. A warrant is needed to get recent emails, but law enforcement can obtain older ones with only a subpoena. Google says it received 16,407 requests for data — including emails sent through its Gmail service — from U.S. law enforcement in 2012. And Microsoft, with its Outlook email service, disclosed last month that it had received 11,073 requests for data last year. Other email providers, such as Yahoo, have not made similar statistics available. In January, Google said that it would lobby in favor of greater protections for email.
What the law says
This is another area where the ECPA comes into play. The law gives greater protection to recent messages than older ones, using a 180-day cutoff. Only a subpoena is required for emails older than that; otherwise, a warrant is necessary. This extends to authorities beyond the FBI and the police. IRS documents released in April by the American Civil Liberties Union suggest that the IRS' Criminal Tax Division reads emails without obtaining a warrant. The bills introduced by Leahy and Lee in the Senate and Lofgren in the House would require a warrant for the authorities to get all emails regardless of age. The Justice Department, which had objected to such a change, said in March that it doesn't any longer. As with IP addresses, it's unclear whether emails are considered "tangible things" under the FISA, which would let the FBI request a secret court order for ones deemed relevant to international terrorism or spying investigations.
EMAIL DRAFTS: Drafts Are Different
Communicating through draft emails, à la David Petreaus and Paula Broadwell, seems sneaky. But drafts are actually easier for investigators to get than recently sent emails because the law treats them differently.
What the law says
The ECPA distinguishes between communications — emails, texts, etc. — and stored electronic data. Draft emails fall into the latter, which get less protection under the law. Authorities need only a subpoena for them. The bills introduced by Leahy and Lee in the Senate and Lofgren in the House would change that by requiring a warrant to obtain email drafts. Like IP addresses, it's unclear whether email drafts are considered "tangible things" under FISA, which would let the FBI request a secret court order for ones deemed relevant to international terrorism or spying investigations.
TEXT MESSAGES: As With Emails, So With Texts
Investigators need only a subpoena, not a warrant, to get text messages more than 180 days old from a cell provider — the same standard as emails. Many carriers charge authorities a fee to provide texts and other information. For texts, Sprint charges $30, for example, while Verizon charges $50.
What the law says
The ECPA also applies to text messages, according to Fakhoury, which is why the rules are similar to those governing emails. But the ECPA doesn't apply when it comes to actually reading texts on someone's phone rather than getting them from a carrier. State courts have split on the issue. Ohio's Supreme Court has ruled that police need a warrant to view the contents of cell phones of people who've been arrested, including texts. But the California Supreme Court has said no warrant is needed. The U.S. Supreme Court in 2010 declined to clear up the matter. Like IP addresses, it's unclear whether text messages are considered "tangible things" under FISA, which would let the FBI request a secret court order for those deemed relevant to international terrorism or spying investigations.
CLOUD DATA: Documents, Photos, and Other Stuff Stored Online
Authorities typically need only a subpoena to get data from Google Drive, Dropbox, SkyDrive, and other services that allow users to store data on their servers, or "in the cloud," as it's known.
What the law says
The law treats cloud data the same as draft emails — authorities don't need a warrant to get it. But files that you've shared with others — say, a collaboration using Google Docs — might require a warrant under the ECPA if it's considered "communication" rather than stored data. "That's a very hard rule to apply," says Greg Nojeim, a senior counsel with the Center for Democracy & Technology. "It actually makes no sense for the way we communicate today." Like IP addresses, it's unclear whether files stored in the cloud are considered "tangible things" under FISA, although the law specifically states that "documents" are included. If cloud data is covered by FISA, it would let the FBI request a secret court order for data deemed relevant to international terrorism or spying investigations.
SOCIAL MEDIA: The New Privacy Frontier
When it comes to sites like Facebook, Twitter and LinkedIn, the social networks' privacy policies dictate how cooperative they are in handing over users' data. Facebook says it requires a warrant from a judge to disclose a user's "messages, photos, videos, wall posts, and location information." But it will supply basic information, such as a user's email address or the IP addresses of the computers from which someone recently accessed an account, under a subpoena. Twitter has reported that it received 1,494 requests for user information from U.S. authorities in 2012. The company says it received 60 percent of requests in the second half of 2012 through subpoenas, 11 percent through other court others, 19 percent through search warrants and 10 percent through other means. Twitter says that "non-public information about Twitter users is not released except as lawfully required by appropriate legal process such as a subpoena, court order, or other valid legal process."
What the law says
Courts haven't issued a definitive ruling on social media. In September, a Manhattan Criminal Court judge upheld a prosecutor's subpoena for information from Twitter about an Occupy Wall Street protester arrested on the Brooklyn Bridge in 2011. It was the first time a judge had allowed prosecutors to use a subpoena to get information from Twitter rather than forcing them to get a warrant; the case is ongoing. Like IP addresses, it's unclear whether posts on social media are considered "tangible things" under FISA, which would allow the FBI to request a secret court order for those deemed relevant to international terrorism or spying investigations.