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Shawn Whirl was exonerated in 2015 after serving 25 years in prison. View Full Caption

Shawn Whirl

DOWNTOWN The city should pay $4 million to a man wrongfully convicted of killing a cab driver after being tortured by Chicago Police, a City Council committee unanimously recommended Tuesday.

In 1991, 20-year-old Shawn Whirl was sentenced to 60 years in prison after confessing to the murder of a taxi driver in Pullman. But he recanted his confession and said he had been tortured by Detective James Pienta who had once worked under disgraced police Cmdr. Jon Burge.

Whirl was released in October 2015 after the Illinois Torture Inquiry and Relief Commission, designed to investigate abuse allegations against Burge and detectives under his supervision, found that his account was "strikingly similar" to those of other Burge victims in 2012.

Whirl said that while he was being questioned about the murder of Billy G. Williams, a married father of three who was found shot in his head, the detective slapped him and repeatedly dug a key into an existing leg wound and put a large potato chip bag over his head to stifle his screams while he was handcuffed to a wall.

After Whirl's conviction was overturned and his confession tossed out by an appellate court judge, Cook County prosecutors declined to retry him.

Pineta, who is no longer a Chicago Police officer, has been accused of torture by other people.

Called to testify at a hearing in Whirl's case, Pineta asserted his Fifth Amendment right and refused to answer questions.

From 1972 to 1991, Burge and his subordinates allegedly used cattle prods, suffocation, Russian roulette and beatings with phone books to elicit confessions from suspects, many of them African-Americans.

In May 2015, Mayor Rahm Emanuel apologized for the officers' actions and created a $5.5 million reparations fund for victims.

The fund will allow a maximum of $100,000 to be paid to each of the more than 100 Burge torture victims, while the ordinance also allows the victims and their families health care, counseling and free tuition at the City Colleges. It also calls for the subject of police torture to be taught to Chicago Public Schools students in junior high and high school.

In December, the City Council agreed to settle three police misconduct lawsuits for $5.5 million.

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Man Tortured By Police Should Get $4 Million From City, Aldermen Recommend - DNAinfo

Lawyers for three girls who allege they were sexually abused by their teacher are seeking a new trial after a civil jury cleared the National School District of negligence in its handling of the accusations made more than three years ago.

Court documents filed by attorney John Gomez claim the jury was prejudiced against the plaintiffs by testimony that should not have been allowed in the case. He also alleges lawyers were hobbled by being barred from questioning teacher Alejandro Ochoa about the claims of sexual abuse.

The district was sued for negligence in 2014 by the girls, who accused Ochoaof touching them inappropriatelyand exposing himself to them.

The plaintiffs were identified in the complaint as Isis R., Tamar R. and Vanessa T. They wereall students in Ochoas third-grade class at Palmer Way Elementary School in National City in 2013 when Isis R.told her mother about the alleged conduct.

The other girls stepped forward later.

Ajury decided Nov. 17 that Ochoa did not sexually abuse any of the girls. Thedetermination cleared the district of any wrongdoing.

Among the court proceedings that are alleged to have prevented a fair trial was testimony from a National City Police Department detective. He told the court Ochoa was never arrested or charged in connection with the accusations.

The motion for a new trial, filed Jan. 6 in San Diego Superior Court, claims that testimony is inadmissible in a civil case.

Ultimately, jurors were tainted by the perception that simply because law enforcement did not pursue charges, the sexual abuse as alleged in the complaint must not have happened, according to court records.

The argument for a new trial also cites the detectives additional testimony that he did not believe the alleged sexual abuse took place because he did not believe Plaintiffs or their reports of abuse to be credible.

According to the motion, witnesses are not allowed to express an opinion about guilt or innocence, or the veracity of particular statements made by another.

Lawyers also believe a new trial is warranted because they were not allowed to ask Ochoa in open courtif he sexually abused the girls.

The attorneys wanted jurors to be able to judge his demeanor and response to the question. They also claimthey were entitled to know whether Ochoa asserted his Fifth Amendment right against self incrimination.

But they were prohibited from doing so by San Diego Superior Court Judge Timothy Taylor, whocautioned them to not intentionally ask a questionthat would illicit a Fifth Amendment assertion by Ochoa before the jury, according to the motion.

If such a question were asked, the defense was told to object before Ochoa could answer. The jury was to be excused, and then Ochoa could take the Fifth.

The court documents claim the proceeding was wholly improper, as a party who exercises the privilege must accept the civil consequences of silence.

A hearing on the request for a new trial has been scheduled for March 17.

Follow me on Twitter: @HuardSDUT

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New trial sought in lawsuit against district - The San Diego Union-Tribune

The Minnesota Court of Appeals ruled Tuesday that a judges order requiring a man to provide a fingerprint to unlock his cellphone was constitutional, a finding that is in line with similar rulings across the U.S.

The decision comes in the case of Matthew Diamond, who wanted his burglary and theft convictions overturned in connection with a 2014 robbery in Chaska.

Diamonds attorney argued that the district court violated Diamonds Fifth Amendment right against self-incrimination by ordering him to provide his fingerprint to access information on his phone. Police found incriminating evidence on the cellphone after it was unlocked.

This was the first time the Minnesota Court of Appeals has dealt with this issue, but it has come up in other states and federal courts.

In deciding this case, the appeals court examined whether the act of providing a fingerprint to unlock a cellphone is testimonial communication. The judges found that providing a fingerprint is not the same as forcing a defendant to testify against himself. They found it was also not the same as asking a defendant to provide information to decrypt a computer.

By being ordered to produce his fingerprint Diamond was not required to disclose any knowledge he might have or to speak his guilt, the appeals court found.

Instead, the task that Diamond was compelled to perform to provide his fingerprint is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing, the judges ruled.

The court noted that it was making no opinion on whether compelling a defendant to provide a cellphone password would violate the Fifth Amendment.

Mark Rumold, senior staff attorney with the Electronic Frontier Foundation, said cases nationwide have fallen into two camps: those dealing with thumbprint-protected phones and those dealing with passcode protection.

He said courts have found that compelling a fingerprint does not violate the Fifth Amendment, but many have ruled that compelling someone to provide a passcode does because a passcode is information stored in ones mind. Rumold said the means of protecting a phone shouldnt matter.

(Cellphones) are basically this window into peoples mind, he said. I think the Fifth Amendment should evolve to protect it outright.

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MN court: It's OK to require suspects to unlock phones with fingerprint - TwinCities.com-Pioneer Press

A few months ago I wrote a long post, The Fifth Amendment and Touch ID,on whether and how the Fifth Amendment applies when the government seeks to compel a smartphone user to unlock his phone using the fingerprint sensor. I thought I would flag a new case on the subject, State v. Diamond, decided yesterday by the Minnesota Court of Appeals. The Fifth Amendment issues are pretty technical issues, and my earlier post had all the details, so Im going to assume familiarity with that post and go directly into the new case.

First, the easy part: The court concludes that forcing a person to place a particular finger on a phone does not trigger the Fifth Amendment because it is not testimonial. From the opinion:

By being ordered to produce his fingerprint, . . . Diamond was not required to disclose any knowledge he might have or to speak his guilt. See Doe, 487 U.S. at 211, 108 S. Ct. at 2348. The district courts order is therefore distinguishable from requiring a defendant to decrypt a hard drive or produce a combination. See, e.g., In re Grand Jury, 670 F.3d at 1346; United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (holding that requiring a defendant to provide computer password violates the Fifth Amendment). Those requirements involve a level of knowledge and mental capacity that is not present in ordering Diamond to place his fingerprint on his cellphone. Instead, the task that Diamond was compelled to performto provide his fingerprintis no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing. See Doe, 487 U.S. at 210, 108 S. Ct. at 2347-48.

So far, so good.

But theres a twist. The government had sought an order compelling the defendant to unlock the phone with his fingerprint. The trial court had then ordered Diamond to provide a fingerprint or thumbprint to unlock his cellphone. Diamond refused to comply, and the trial court ruled that Diamond had no Fifth Amendment privilege and found him in contempt. The trial judge informed [Diamond] that compliance with the order would remedy the civil contempt. Diamond provided his fingerprint, and police immediately searched his cellphone.

Heres why that matters. On appeal, Diamond argued that the government violated his Fifth Amendment rights because the government made Diamond select which finger to use. Specifically, Diamond argued that he was required to identify for the police which of his fingerprints would open the phone and that this requirement compelled a testimonial communication. As I explained in detail in my prior post, I think this should change the analysis (see the discussions of Case 2 and Case 3).

The court rejected this argument in the following passage:

This argument, however, mischaracterizes the district courts order. The district courts February 11 order compelled Diamond to provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone. At the April 3 contempt hearing, the district court referred to Diamond providing his thumbprint. The prosecutor noted that they were not sure if its an index finger or a thumb. The district court answered, Take whatever samples you need. Diamond then asked the detectives which finger they wanted, and they answered, The one that unlocks it.

It is clear that the district court permitted the state to take samples of all of Diamonds fingerprints and thumbprints. The district court did not ask Diamond whether his prints would unlock the cellphone or which print would unlock it, nor did the district court compel Diamond to disclose that information. There is no indication that Diamond would have been asked to do more had none of his fingerprints unlocked the cellphone. Diamond himself asked which finger the detectives wanted when he was ready to comply with the order, and the detectives answered his question. Diamond did not object then, nor did he bring an additional motion to suppress the evidence based on the exchange that he initiated.

There are two suggested rationales in this explanation. First, the court suggests that Diamond was not required by the order to tell the police which fingerprint would open the phone. Im not sure thats right, though, as it seems that Diamond was required to unlock the phone in the officers presence which necessarily would disclose which finger opened the phone.

Second, the court suggests that Diamond didnt object to carrying out the order. But didnt he? He raised his Fifth Amendment objection, and the court rejected it and found him in contempt. Maybe theres a kind of waiver idea operating here, by which Diamond didnt raise the specific point about which finger to use at the earlier hearing and so he cant raise it now. But given that he did assert his Fifth Amendment right at the time, Im not sure that he should have been required to raise it a second time.

In any event, Im not sure this difference matters to the outcome. I gather from the facts that this was known to be Diamonds phone, and if thats right the foregone conclusion doctrine should apply anyway. In the framework of my earlier post, this would be Case 3 and not Case 2. But it would at least change the analysis somewhat.

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Minnesota court on the Fifth Amendment and compelling fingerprints to unlock a phone - Washington Post

Posted on January 19, 2017

The Minnesota Court of Appeals has produced another wrinklein the contentious matter of privacy rights with respect to biometrically locked mobile devices. The court recently denied an appeal from a convicted burglar who had tried to argue that a courtorder compelling him to unlock his phone for police via fingerprint scan had violated his Fifth Amendment right to protection against self-incrimination.

The Fifth Amendment has generally protected the information American citizens hold in their minds, allowing them to refrain from divulging information that could incriminate themselves; for that reason, it would protect someone from having to tell police his phones lock screen password, if the phone were to contain incriminating evidence. But with the emergence of smartphones fingerprint unlock capability, the question has arisen as to whether the same protections apply.

The Minnesota Court of Appeals says they dont. In its ruling, the court asserted that the previous district court order to make the burglar submit to a fingerprint scan to unlock his phone was no more testimonial than furnishing a blood sample.

Its another example of a court backing the states authority to compel fingerprint unlocks of mobile devices, based on the ideathat fingerprint security is not knowledge-based, but physical. And its another sign that if criminals are going to store any incriminating information in their phones, they probably shouldnt use biometric security it might help to protect them against other criminals, but it wont necessarily offer any protection against the police.

Sources: The Washington Post, Ars Technica

January 19, 2017 by Alex Perala

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Fifth Amendment Doesn't Apply to Fingerprint Security: Minnesota ... - findBIOMETRICS