Comment by tptacek
3 hours ago
The Chesa Boudin DA "misrepresentations" document, linked towards the end of this story, is weak, bordering on Trumpian. It highlights as "misrepresentations" cases where Boudin simply disagrees with Lim about a statement of opinion (whether his office was suitable forthcoming, organized, or deflecting). At one point it accuses Lim of "violating HIPAA", which is not a thing† (HIPAA constrains covered entities, not reporters).
I think both sides of this conflict (Tan and Radley) are talking past each other and scoring points for their respective sides; Radley is famously an advocate of progressive prosecutors, and Tan (IIRC) worked to remove Boudin. I don't expect a totally accurate and balanced retelling from either side, in the same way that you should not expect a completely neutral report on inner-ring suburban housing policy from me (I'm a housing activist).
But I did come away from this with a lower opinion of Boudin's office.
(For what it's worth, I was extremely optimistic about the wave of progressive prosecutors led by Larry Krasner in Philadelphia, and while I have some Radley Balko issues, I've been reading John Pfaff on this stuff for a decade. What's happened to my worldview since then is that I feel like I've watched outsider-y progressives get elected into prosecutor roles and then fail their constituencies not because of ideology but over basic competency issues. I'd be foursquare behind a progressive prosecutor in a major city that ran a tight ship; we tried this in Chicago and didn't get that.)
† btw: if you're the DA for a jurisdiction that includes a reporter, and you claim the reporter's journalism is unlawful, you sure as shit better have that right.
> I feel like I've watched outsider-y progressives get elected into prosecutor roles and then fail their constituencies not because of ideology but over basic competency issues
Huh, I went through a similar journey in New York, starting as an advocate of criminal-justice reform and then getting fed up with the incompetence.
And while I wouldn't say ideological inflexibility is ideology per se, one of the contributors to ineffectiveness I saw in New York was a simultaneous inability to tolerate competent people with even slightly-divergent viewpoints (and there were a lot of red lines–I don't know what multidimensional beast could thread them), or, alternatively, an inability to fire or beach clearly-incompetent people because they were part of a priority community. (Read "community" broadly. It might be an identity. It was more often whatever union or local progressive club the person cropped up through.)
How does it seem that Radley is talking past Gary?
All discussion of the 'Misrepresentations' article is responsive to Gary's mention of it in the original article. And at no point does Radley appear to endorse its contents.
> I'd be foursquare behind a progressive prosecutor in a major city that ran a tight ship
Strongly inclined to hire such a prosecutor. Has this model been successfully deployed in any large U.S. cities? My only experience is watching it struggle in a medium one.
On your last point: given the ethical responsibility of a prosecutor, I’d go one step further. If you’re the prosecutor for a jurisdiction where a journalist works, and you make any statement about the legality of the journalists works, you better be substantially likely to secure a conviction, otherwise you should mind your business.
Yes. It is a weird document. Journalists are unfair to prosecutors and police chiefs all the time. Shut up and do the job.
(I have feelings here because we're in a mini-spat between our PD and our terrible local newspaper, which is upset that our chief won't give them an interview after the local police union gave her a no-confidence vote; where I live, that vote is, reasonably, viewed as a sign she's doing the job well. But either way: she's not going to give an interview on this!)
Can you elaborate on "basic competency issues", either in the case of Boudin's office and/or other high profile reformist prosecutors? Is that just a polite way of calling them dumb, à la what the kids are calling a 'skill issue' nowadays?
I can speak at length to the tenure of Kim Foxx, Chicago's former high-profile progressive prosecutor. I know some of the issues rhyme with Boudin's term, but San Franciscans can tell his story better than I can.
So, first, no, I feel like I'm saying the opposite of "they're dumb". I don't think either Foxx or Boudin are dumb. I think they're both interesting people with interesting and valuable views.
When I say "basic competence issues", I'm talking about the kinds of things that would go wrong if, like, you or I took over the CCSAO and started managing all the prosecutions in Cook County. For instance: having huge numbers of line prosecutors resign, in part because you totally fuck up the promotion ladder, in part because you shift staffing priorities away from line prosecution and towards internal policy positions, and in part because you fail to sell your immediate-term vision for how you're going to manage the agency.
The superficial way to look at veteran prosecutors resigning is that they're no longer culture fits, which you can look at as a good thing: Boudin and Foxx were hired to change those cultures. But a more practical and immediate way to look at them is that losing veterans puts the screws on your ability to execute the day-to-day of the agency. These prosecutor offices were incredibly strained before people like Boudin and Foxx got there. Which means: there was already an extent to which prosecution decisions were being made not just on justice, safety, or public policy more broadly, but simply on a triage basis.
When you start losing significant numbers of people, you lose the ability to set your own execution priorities; circumstances are making prosecutorial decisions. Foxx tried to put a brave face on it, but nobody was buying it.
What's more frustrating is that Foxx was doing this at the same time as Illinois was rolling out SAFE-T, which ended cash bail in Illinois. I am wholeheartedly in favor of SAFE-T, and I think by-default cash bail is an idiotic system that unnecessarily amplifies the societal cost of law enforcement. But SAFE-T was ultra-controversial in Chicagoland, and Foxx went through all this stuff while people were freaking out daily about catch-and-release. It didn't help that all of this coincided with a huge regional increase in carjackings, the second most important urban index crime after murder. It further didn't help that she was accused of refusing to prosecute juvenile carjackers, and that when confronted by reporters about that, she didn't have a clear denial.
I hope this reads as I intend it to, which is: not ideological, just an assessment about whether someone is prepared to step in and run the office, most of which is boring and just needs to be done correctly.
(I think you can probably look at Krasner as an example of a prosecutor who has avoided these traps.)
We almost certainly have opposing ideological views, but something I said a lot during this era (that I'm happy to see you hinting at) was that if you come into office as a progressive prosecutor without any plan to deal with the people in your office or in law enforcement who aren't on board, then that's really the more immediate failure. You can't just say, "I would have been successful if not for my detractors," because the detractors are a totally predictable obstacle for which you need a plan.
In big systems you can't always just do whatever you want!
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> prosecution decisions were being made not just on justice, safety, or public policy more broadly, but simply on a triage basis.
> When you start losing significant numbers of people, you lose the ability to set your own execution priorities; circumstances are making prosecutorial decisions. Foxx tried to put a brave face on it, but nobody was buying it.
So, circumstances were making prosecutorial decisions, and the new DA efforts to make fundamental changes did not fix those circumstances, and therefore all changes they made were considered to cause that state.
The office wasn't running. It is not the fault of the new guy that it keeps not running.
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-- When you start losing significant numbers of people, you lose the ability to set your own execution priorities; circumstances are making prosecutorial decisions.
Ding, ding, ding, ding, ding! God so many people don't "get" this. Engineering leaders that come in and create and exodus of senior leaders, same thing. I started calling it organizational momentum. The speed at which you get things done, goes up as the organization gets to understand itself. A bunch of key people leave and BAM momentum goes to zero and suddenly all the milestones you are missing are putting all the wrong pressure on the org to get moving again.
> the second most important urban index crime after murder
Can you comment on why this is? Is it because it's common? Or so visibly impactful?
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I enjoyed this long post about how changing the culture in a DA’s office is bad and should not be attempted
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The main HIPAA claim seems to be that the victim didn’t provide (or consent to the publication of) that X-ray, and neither did their only family member known to possess it. I don’t know who released it, but if it was someone in the medical office, that is a genuine HIPAA violation.
It could be a violation at the medical office, but Lim isn't a covered entity, and the document accuses her directly.
HIPAA only covers entities that are legally required to follow it. Covered entities and business associates. It doesn’t apply to anyone else.
> I've watched outsider-y progressives get elected into prosecutor roles and then fail their constituencies
Political achievement via moral/ethical/legal means does not work. We expect a single person with extremely limited power to assume a relatively minor position in government, then somehow defeat incredibly wealthy organized opponents, in addition to solving complex logistical and social issues, and to do all that without ever doing anything wrong? It's nearly impossible. Progressives need to return to the good old days of corruption and coercion if they want to get anything done.
> then somehow defeat incredibly wealthy organized opponents, in addition to solving complex logistical and social issues, and to do all that without ever doing anything wrong?
No, we expect them to do like one thing right without bungling the basics. The track record of the pre-pandemic era wave of progressive prosecutors was some combination of doing absolutely jack shit in the first category and/or being asked for table stakes on the latter and swallowing their chips.
> The Chesa Boudin DA "misrepresentations" document, linked towards the end of this story, is weak, bordering on Trumpian.
Are we reading the same document?
The first example is almost a perfect example of what's stated in TFA. Lim is incredibly aggressive in making her argument, and not an argument based on real evidence.
Scanning through the rest, it reads as much the same.
Direct gdrive link for those who don't want to go back and scroll through the article again: https://drive.google.com/file/d/1VZKYxe0oGq7HeC5Kj2lxf-X55r4...
edit:
> At one point it accuses Lim of "violating HIPAA", which is not a thing† (HIPAA constrains covered entities, not reporters).
Ehhhhh. I diagree with that reading. There's a clarification bullet point two lines down from the headline bullet (page 3). Emphasis mine.
> This suggests Ms. Lim was received a patient’s privileged medical records from another unauthorized source in violation of HIPAA.
I read this as the unauthorized source is violating HIPAA. But I guess neither of us are lawyers. So...
> Direct gdrive link
I'm confused where this came from. I cannot find this link in the original article as submitted:
https://radleybalko.substack.com/p/truth-power-and-honest-jo...
The most I can find is "But I found another place where someone has posted all 81 pages. It’s here. Feel free to look them over."
Where "here" links to:
https://www.documentcloud.org/documents/21011168-responsive-...
That is the 81 page PDF referred to multiple times in the article and is titled "Responsive Records Lim - Balko correspondence_Redacted". I don't see "HIPAA" appear in it anywhere. Toward the end of that document on page 69 is a screenshot of a text that includes a Word attachment titled "Dion Lim Misrepresentati...". After that are screenshots that are excerpts of the gdrive document that you linked, but the HIPAA accusation is not in any of those screenshotted excerpts.
So how did tptacek even come across the HIPAA accusation, and how did you find the document that you linked that contains it?
Edit: ah, it's linked from this sentence "But in the interest of transparency, I’m posting it as well. You can read it here." where "here"[^1] links to the gdrive document.
Sheesh.
[^1]: Pet peeve - you've failed HTML 101 if you use "here" as a link. A few sentences earlier in that paragraph is the text that should've been the link text: 'the “Dion Lim Misrepresentations” document that Tan mentions in his post'.
That's an extremely charitable read of a DA's office alleging lawbreaking. I really think you have to kind of slant your head and squint to come away with the impression that that section isn't about Lim, but rather the unnamed medical office.
As i said, neither of us is lawyers. Neither of us are experts in what a DA's office has written, and what that writing should be interpreted as under the law. Perhaps a more charitable reading is what is called for, given we're not experts in the domain.
i don't know about you, but i'm pretty confident a DA's office has a much better idea than me about what each of the HIPAA sentences in the document translate to in terms of "allegations".
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A. That's how I read it too. B. You can be criminally liable for HIPAA violations, if you induce someone covered by them to violate them. See for example https://www.justice.gov/usao-nj/media/1254226/dl (indictment of KEITH RITSON)
"COUNT 2 (Conspiracy to Wrongfully Obtain and Disclose Individually Identifiable Health Information) 19. Paragraphs 1-3 and 5-18 of Count 1 of this Superseding Information are hereby realleged and incorporated as though set forth in full herein. 20. At all times relevant to this Superseding Information: a. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) protects individually identifiable health information from wrongful disclosure or obtainment and seeks to set national standards to maintain patient confidentiality. b. In connection with HIPAA, the United States Department of Health and Human Services enacted regulations to safeguard the privacy of patients’ medical records and limit circumstances in which individually identifiable health information or protected health information can be used or disclosed. The HIPAA law and privacy regulations apply to, among others, health care providers, such as medical doctors, who transmit health information in connection with a transaction covered by the law and privacy regulations. c. Frank Alario, who is listed as a co-conspirator with respect to Count 2 of this Superseding Information but not as a defendant herein, was a health care provider and a covered entity under the HIPAA law and privacy regulations.
21. From in or about August 2014 through in or about February 2016, in the District of New Jersey, and elsewhere, defendant KEITH RITSON did knowingly and intentionally conspire and agree with Frank Alario and others to commit offenses against the United States, that is, to knowingly and without authorization obtain individually identifiable health information and protected health information to another person, and to knowingly and without authorization disclose individually identifiable health information and protected health information maintained by a covered entity relating to individuals, contrary to Title 42, United States Code, Section 1320d-6."
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