Antifa is the right’s new bogeyman

Well put by The Boston Globe editorial page:

Saturday put the lie to a common whine of the so-called alt right — the loose movement of anti-Semites, neo-Nazis, white supremacists, and freelance bigots emboldened by President Trump’s election — that they are somehow deprived of their free speech rights. Nonsense. If being mocked, booed, and heckled is the alt-right’s idea of censorship, it may be time to rethink who gets labeled a “snowflake” in today’s political environment.

The fears of “antifa” violence directed at conservatives also turned out to be overblown. A few counterprotesters in black outfits showed up, made some noise, and then went home. Sorry, but left-wing cosplay isn’t a security threat comparable to neo-Nazi violence.

I’m starting to see efforts by the right to transform antifa (for “anti-fascist”) activists into a massive, violent force determined to stamp out free speech and supported by everyone to the left of, say, Hillary Clinton. The reality is that they’re the new New Black Panther Party, a bogeyman trotted out to frighten viewers of Fox News but not especially visible anywhere else. Don’t be fooled.

Talk about this post on Facebook.

Free speech took a back seat to public safety at Saturday’s demonstrations

It’s now clear why no one could hear the right-wing speakers on the Boston Common on Saturday. The police kept demonstrators 75 yards away, and the speakers didn’t have any amplification. I’m not sure whether that was a police decision or a result of their own poor planning. (And I doubt it would have made a difference.)

The police had a huge dilemma on their hands. Even though the vast majority of the 40,000 counter-protesters were peaceful, there could have been some real trouble from a few hotheads if they had been allowed any closer. There were only a few dozen right-wingers.

I’m not sure how this could have been handled differently. Someone suggested that a pool reporter should have been allowed in, and that certainly would have been better than nothing. It didn’t help that BPD Commissioner Bill Evans issued a statement in which he sounded glad that the speakers were not able to get their message out:

We had a job to do; we did a great job. I’m not going to listen to people who come in here and want to talk about hate. And you know what, if they didn’t get in, that’s a good thing ’cause their message isn’t what we want to hear.

Let’s not kid ourselves. There was real potential for violence far beyond the skirmishes that actually took place. The Boston Police did a good job of protecting public safety. But free speech took a back seat on Saturday, and I imagine we’re going to be hearing more about that in the days to come.

Update: First Amendment Rob Bertsche has similar thoughts.

Talk about this post on Facebook.

What I saw at the ‘Fight Supremacy’ counter-demonstration

Getting ready to leave the Reggie Lewis Center and head down Tremont Street.

I did quite a bit of tweeting earlier today from the “Fight Supremacy” anti-racism demonstration, and here is a Storify I put together capturing what I hope are the most useful parts.

Talk about this post on Facebook.

My reporter’s toolkit for today’s demonstrations

I’m heading to Boston later this morning to report on the protests for my column at WGBH News. Here is my reporter’s toolkit: unofficial press pass, business cards, notebook and $40 cash for bail — the last recommended by First Amendment lawyer Rob Bertsche, whose firm, Prince Lobel, will be on call this weekend for any journalists who find themselves in legal trouble.

My plan is to accompany the “Fight Supremacy!” counterprotesters from the Reggie Lewis Center to the Boston Common, where the white-supremacist rally is supposed to take place. I’ll try to do some live posting on Twitter right here, though it’s likely the cellular networks will be overloaded.

Talk about this post on Facebook.

The end of something. But of what?

It feels like events are accelerating and spinning out of control, and that whatever we’ve been going through with Trump is about to come to an end. I’m specifically not wording this as meaning the end of the Trump presidency, though I’m not ruling it out. My prediction that he’d somehow be gone by Labor Day may yet be on target. These are very strange, ugly, scary days.

Talk about this post on Facebook.

Trump’s morally repugnant response to the violence in Charlottesville

I’ve been trying to find the right context for President Trump’s repugnant response to the neo-Nazi violence in Charlottesville. To say that he failed the moral test of being president doesn’t quite get at it, because he’s failed every moral test ever put in front of him. But this was by far his most important test, so it’s much worse than his previous failures, even if his actual words were no different from what he’s said and hasn’t said before.

His performance Saturday was deliberate and perverse. The most plausible explanation is that he was consciously, specifically trying not to alienate the ignorant racists and white supremacists who comprise a large part of his base. I’m glad that other Republicans, including Ted Cruz, gave evil its proper name. But will they take action against Trump? Not likely.

Many sides. Many sides.

Talk about this post on Facebook.

Frederick Clay’s ordeal underscores the hazards of excessive police secrecy

By Jeffrey J. Pyle

For the past several years, police departments in Massachusetts have been routinely denying the public access to “incident reports,” the written narratives of police responses to alleged crimes. Law enforcement agencies used to disclose these reports as a matter of course, sometimes redacting sensitive information. But now, every week, I and other media lawyers at my firm hear from reporters who are being denied basic information about such things as car accidents and drug arrests. The police withhold this information despite the strong presumption in our new, strengthened Public Records Act that all government documents must be made open for public inspection unless a specific exemption makes them confidential.

The damage this excessive secrecy poses to local journalism is well reported, but it’s not only the public’s right to know that can suffer. In some cases, the refusal to release incident reports can threaten the criminal justice system itself, potentially keeping innocent people behind bars and allowing dangerous criminals to remain free in the community. This problem is illustrated by the case of Frederick Clay, who was freed from prison this week after serving 38 years for a crime he did not commit.

Around 4 a.m. on the morning of Nov. 16, 1979, a taxicab pulled up to the Archdale Housing Project in the Roslindale neighborhood of Boston. Three young men exited the cab and then pulled the cab driver, Jeffrey Boyajian, out of the car and onto the ground. Witnesses claimed that two of the assailants were around 6 feet tall, and the other was shorter, about 5 feet 8 inches. All three were wearing dark clothing, possibly including black leather jackets. The men searched through Boyajian’s pockets and beat him as he cried, “Take what you want, but let me live.” After stepping away from Boyajian, the shorter man took out a handgun with his left hand and shot Boyajian five times. The attackers fled on foot.

The police subjected two of the witnesses of the morning’s events to hypnosis to try to help them identify a suspect — a practice that would soon (thankfully) be ruled unlawful. One of these witnesses didn’t see the attack at all — he just thought he’d seen the trio get into Boyajian’s cab earlier that night. The second, a young man with an intellectual disability, saw the attack from a second-story window. Neither witness was sure he could identify anyone before hypnosis, but after it — and after other procedures that would today be deemed too suggestive — both picked out Frederick Clay, age 16.

Clay insisted he was asleep in his room at a foster home on the night of the crime, and his foster mother corroborated his alibi at trial. Clay was also right-handed, not left-handed like the shooter. But the police figured they had their suspect. That’s why they failed to follow up on indications that two other Archdale residents — a left-handed 16-year-old who was 5 feet 8 inches and his much taller brother — may have been the real culprits. On Aug. 19, 1981, a jury convicted Clay of first degree murder, and he was sentenced to life in prison.

After years of fruitless appeals and post-conviction motions, Clay’s case came to the attention of attorneys Lisa Kavanaugh and Jeffrey Harris. Kavanaugh learned of the other  suspect and his possible links to the crime, so she sent public records requests to the Boston Police for incident reports of his arrests around the time of the shooting. She was hoping to get mugshots of the suspect, details of his physical appearance, and other evidence showing that he matched the descriptions of the shooter, as well as information about his propensity to engage in robberies like the one that claimed Boyajian’s life.

The initial response of the Boston Police was a flat “no.” In a May 2015 letter, they told Kavanaugh that her request for the report of a 1985 arrest for assault and battery would be denied because she knew the names of the “parties involved” (she’d mentioned them in the requests to help the police identify the reports). and therefore their “privacy” could not be protected through redaction. Also, the police said, the report contained “investigatory material” (even though the investigation was long over) and “arrest information” that is “protected from disclosure” under the Criminal Offender Record Information (CORI) law.

These are the same justifications police departments are now using to deny access to police reports to the media, and they are wrong. As I’ve explained elsewhere, neither the “investigatory” exemption to the public records law nor the CORI statute permit the withholding of entire incident reports. Nonetheless, the Massachusetts State Police recently argued to the supervisor of records for the secretary of state’s office that it does not have an obligation even to try to redact police reports — it can instead withhold them in their entirety whenever they want.  (There’s a reason the State Police won the Investigative Reporters & Editors 2015 “Golden Padlock Award,” a national recognition given to the most secretive government agency in the country.)

Kavanaugh didn’t take no for an answer. She asked me to intercede on her behalf with counsel for the Boston Police, and after much back and forth, including a threat of a lawsuit, the police agreed to produce reports for a number of incidents involving the other suspect from the 1980s — while still insisting on redacting his name (as if Kavanaugh didn’t already know it). Those reports led to other reports, and ultimately to a section of Kavanaugh’s and Harris’ masterful 75-page motion for a new trial that addressed the similarity of the other suspect’s appearance to descriptions of the Boyajian attacker and showed his propensity to commit similar crimes.

The Suffolk County DA’s office did its own investigation in response to Clay’s motion, and this past Tuesday — just one week before Clay was to be released on parole — the office assented to his motion and decided not to re-prosecute the case. The DA’s office did so in part because it agreed that the lead on the other suspect should have been pursued. In an emotional hearing in courtroom 906, Judge Christine Roach granted Clay’s motion, ordered his shackles removed, and declared him a free man — after serving 38 years in prison for a crime he did not commit.

The incident reports in Clay’s case played only a small part in his release, but they corroborated an important alternative theory of who may have committed a heinous murder. The Boston Police should be commended for reversing their initial determination and releasing the records. But the problem remains: Absent judicial or legislative intervention, police departments will continue to deny access to incident reports for no good reason, regardless of whether they may shed light on an unsolved case, reveal important trends in law enforcement, or possibly free an innocent person. For the sake of the criminal justice system and the public’s right to know, that practice must end — and soon.

Jeffrey J. Pyle is a partner in the Media and First Amendment Law group at Prince Lobel Tye, LLP, in Boston.