Author Archives: SHG

The New Witnesses To Old News

For a while, it seems as if the killing Michael Brown in Ferguson, Missouri, had legs. It remains on our radar with images of residents and media corralled like vermin in their own country, a sight that seemed to finally resonate with people who were disinclined to sprain a synapse thinking unhappy thoughts.

But the legs finally gave out.  So what if the revelation of the purported theft of Swisher Sweets because of so many FOIA requests was a lie?  So what if the cop’s story came via unnamed (except for “Joise”), unknown witnesses, whose story was served up a call-in to a talk show, as opposed to named, scrutinized witnesses?  It was sufficient to blunt our vision and concern.  And really, that was all that was needed to take our focus off Michael Brown, the armed troops of police bringing order  back to Ferguson and the causes of misery in the suburbs of St. Louis.

Plus, there was a new iPhone coming out.

Two more witnesses have come forward.  Did you know about that? Now that you do, do you care? Continue reading

If There Was No Other Way, Part 2

In Part 1, I attempt to offer Judge Kopf’s explanation for why, despite his private pain at being in the position where he would feel compelled to do so, he would send a person he knew to be factually innocent to his death.  My hope is that I’ve been fair in my explanation.  While it’s poor rhetoric to put words into anyone’s mouth, this in particular isn’t the sort of issue where there should be any confusion.

When a criminal defense lawyer asks a judge to suppress evidence, with a defendant against whom the evidence of guilt is overwhelming and, to the extent it can be, conclusive, we exalt adherence to the law over pragmaticism.  We don’t ask that the defendant be cut loose because he deserves it, but because the law demands it.

This is a tough argument to make, as the crime may be heinous, or there are victims who believe that their version of justice will be served.  The victims have done no wrong, are sympathetic, and deserving of the best the law has to offer.  Yet, they have no role to play in our argument, as we rely on the greater glory of the law.

To some extent, this is what appears to motivate Judge Kopf’s explanation of how he can follow that law, perform his function as a judge, and yet order the killing of a person he knows to be innocent.  On its surface, it appears to be the same argument, flipped over.  It’s principled in the sense that a judge’s authority is not his, but derives from the law, which derives from the will of the people.  Sure, the glorious platitudes never seem to pan out as well for the defendants as they do for others in the system, but the system isn’t perfect.  There are even platitudes for that. Continue reading

If There Was No Other Way, Part 1

A few days ago, Judge Richard Kopf posted about a political blogger who calls herself “Digby.”

Digby, I want to discuss your Salon piece of yesterday, to wit: Scalia’s Utter Moral Failure Exposed. That’s the one with these subtitled lines, “He doesn’t think executing an innocent man matters. How on earth can such a depraved human be on our Supreme Court?

Judge Kopf didn’t think well of Digby’s post for an array of reasons, but mostly because her disagreement with her simplistic view of Scalia’s outcome failed to recognize its place in law.

A perfectly moral, and a perfectly just, argument supports the assertion that our Constitutional order requires due process in the death penalty context as in all others but never perfection. If it were otherwise, and as Scalia tentatively reasons, the words of that great document would be different and, in particular, the notion of “democracy” in the death penalty realm would become meaningless. No lesser person than the great Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to Hell I will help them. It’s my job.”

Justice Antonin Scalia wrote in his dissent to the Supreme Court’s order directing the district court to consider Troy Davis’s habeas: Continue reading

Inspector General Seemed Like Such A Cool Idea

The first time I met Mike Horowitz was at Harry’s in the Woolworth Building.  It happened just before the Dirty Thirty scandal broke, where we sat down with prosecutors from the New York County District Attorney’s official corruption unit, my client and Horowitz, who would be handling the prosecution.

He wasn’t a warm and friendly guy.  I had been working with the DANY guys for a while, and we had become friendly and I gained a great respect for their integrity.  Horowitz was very official, which wasn’t unusual for a SDNY guy, and didn’t crack a smile at the jokes. He seemed like the kind of guy who slept in his suit.

At the end of the lunch, after each of us paid on separate checks, he handed my client a subpoena to testify.  This was a bush move, as my client was there voluntarily, had cooperated fully and Horowitz didn’t forewarn me that he would issue a subpoena so I could forewarn my client. It wasn’t a big deal, as my client intended to testify regardless, but just needlessly offensive. And official.  Yes, Horowitz was very official.

Michael Horowitz is now the Inspector General of the United States Department of Justice. It’s a big job.  Or at least it’s supposed to be.  Via Tim Cushing at Techdirt:

Rogue agency? The FBI seems to fit the description:

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A Sentence Just Isn’t Bad Enough

Hi, all of you nice folks who believe that if courts would only allow the open discussion of jury nullification, the system would right a great many of its injustices.  After all, the platitudes favor the constitutional right to a jury of one’s peers, and your fellow citizens would certainly see things your way, right?  All justice-minded folks see things your way, right?  Because you are rational, thoughtful, normal, and what could go wrong?

In Newsday, it appears that Nassau County has decided to reinstitute the boondoggle of seizing the cars of people arrested for drunk driving.  Not convicted, mind you, but arrested. Because they wouldn’t be arrested if they weren’t guilty.

Nassau County police have begun seizing the vehicles of motorists arrested for driving under the influence of alcohol or drugs and holding the cars as cases proceed through the courts, county officials said.

County Attorney Carnell Foskey said the new system “gets the car off the road after the arrest and hearing and keeps the car available for forfeiture.”

Nassau previously returned vehicles to motorists after arrests. But by the time of convictions, the driver’s lease or financing agreement on the vehicle had expired, preventing the county from reaching a monetary settlement, Foskey said. Under the new system, Nassau could have a better chance to collect because it will already be in possession of the vehicle.

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UC Berkeley’s Dirks And The Bell Unrung

When UC Berkeley’s Chancellor, Nicholas Dirks, sent out his first email proclaiming the glory of the school’s free speech tradition, it was roundly criticized, from the blawgosphere to his hometown paper.  So in the best academic tradition, he backtracked and rationalized why his email didn’t mean what he wrote:

In this year’s email, I extended this notion of civility to another crucial element of Berkeley’s identity, namely our unflinching commitment to free speech — a principle this campus will spend much of this fall celebrating in commemoration of the 50th anniversary of the Free Speech Movement.

My message was intended to re-affirm values that have for years been understood as foundational to this campus community. As I also noted in my message, these values can exist in tension with each other, and there are continuing and serious debates about fundamental issues related to them. In invoking my hope that commitments to civility and to freedom of speech can complement each other, I did not mean to suggest any constraint on freedom of speech, nor did I mean to compromise in any way our commitment to academic freedom, as defined both by this campus and the American Association of University Professors.

I did, however, express my conviction that in the ongoing debates on campus about these and other issues we might collectively see the value of real engagement on divisive issues across different perspectives and opinions. By “real engagement” I mean openness to, and respect for, the different viewpoints that make up our campus community. I remain hopeful that our debates will be both productive and robust not only to further mutual understanding but also for the sake of our overriding intellectual mission.

The reaction to this follow-up was curious. Ken at Popehat forgave and forgot. Continue reading

A Tale of Cyber Horribles

It has to be assumed that Eugene Volokh didn’t post the analysis of his Mayer Brown colleague, Marcus Christian, without purpose. Christian, “an extremely experienced former federal prosecutor” who is now a Biglaw “white collar” defense lawyer, told a very scary tale of CyberVor, the sort designed to wrap oneself up in the comfort of government power to protect us from looming destruction.

Cybercrime is big business. According to a June 2014 study by the Center for Strategic and International Studies and McAfee, the annual economic cost of cybercrime is $475 billion and growing. The growth in costs result in part from the increasing productivity of cybercriminals.

Last month, Alex Holden, a cybercrime researcher, reported that a Russian cyber gang has built a database of 4.5 billion stolen Internet credentials. According to Holden, the records constituted the largest known assembly of stolen online credentials and included 1.2 billion user name and password combinations and more than 542 unique million e-mail addresses.

Huge numbers. It would appear that they’ve got us, all of us, and they could crush us like bugs, destroy our lives, undermine the very fabric of our society. Continue reading

The “Mission Creep” of Domestic Violence

The Violence Against Women Act is now 20 years old, and few attempts to micromanage public attitudes via criminal process have worked as effectively to change people’s attitudes.  Domestic violence, originally conceived as a spouse battering another spouse but since expanded to cover far more, wasn’t taken seriously as a crime.

Some viewed DV as “merely” an internecine fight to be shrugged off. Others as a private matter between husband and wife, with the state best left out of their intimate relationship.  It was routinely ignored by police, despite the fact that it was, without question, a crime.

In the New York Times Room for Debate, the Ray Rice video of his cold-cocking his then-girlfriend has raised the question again.  The conflicts in DV prosecutions are complicated. Wives are reluctant to seek help for fear that it will just inflame their spouses, causing more harm. They fear destroying their marriage and family and leaving them alone and helpless.

They believe their spouses when they say they will never beat them again, whether as a matter of hope or psychological manipulation.  Wives refused to cooperate with prosecution, having addressed the immediate battery, but then seeing further cooperation as more destructive, or more fearful. Continue reading

Murder? It’s All In The Wrist

So what if you’ve just been caught standing over the dead body, blood dripping off the knife in your hand, muttering to yourself aloud that you probably shouldn’t have done it. Who cares? Your lawyer has an iWatch.

Yesterday, the beloved Apple announced the introduction of the iPhone 6, attempting to make a screen large enough to compete with Androids, and the iWatch, showing that it learned nothing from the failure of Google Glass.  My pal, Kevin O’Keefe, leaped on the news to explain what this means for lawyers.

What’s the impact on lawyers and business development?

Content consumption, content sharing, and social networking online on mobile devices is taken to new heights. Mobile devices more elegant and user friendly than laptop and desktop computers.

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A Kiss Is Just A Kiss (Update)

When the foundation upon which a call to action is built starts with this, it’s a problem:

Sexual assault is rampant on campuses, and colleges have failed to respond adequately. “Yes means yes” won’t make these problems disappear. But the new standard is worth trying.

The link in the quote from the New York Times editorial relates back to its story about the report of the White House Task Force to Protect Students from Sexual Assault.  That was the report that noted that it needs to be studied, as there is a huge hole in the empirical evidence, but in the absence of facts, they were just going to assume it to be true.  Repeat a baseless claim enough and it’s bound to show up in a New York Times editorial. Then again, most people believe anything that’s in the paper. It has to be true, right?

So sexual assault is rampant because, well, reasons. The gist of the editorial is that California’s Senate Bill 967 is a “new standard worth trying.”

The original draft specified that consent should be given “by words or clear, unambiguous actions” and noted that “nonverbal” signs could create misunderstanding. Since — obviously — many consensual sexual encounters are nonverbal, the bill could have dangerously expanded the definition of assault. The offending language was removed, however, and the bill now defines consent more simply as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” It need not be spoken.

In its current form, SB-967 is not radical. Its underlying message is that silence does not necessarily equal consent, and that it’s better to be certain that sex is desired than to commit assault.

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It Depends On Who Does The Hacking

When Weev Auernheimer exploited a mistake in the configuration of AT&T’s access for iPads, the government prosecuted him for violating the Computer Fraud and Abuse Act.  When the government wanted to nail Silk Road’s Dread Pirate Roberts, the shoe was on the other foot.

Via Orin Kerr at WaPo Conspiracy:

In defending the prosecution, the U.S. Attorney’s Office recently filed a very interesting brief explaining how investigators found the computer server that was hosting the Silk Road (SR) server. Although the brief is about the Fourth Amendment, it has very interesting implications for the Computer Fraud and Abuse Act, the federal computer hacking statute.

The brief explains how the FBI found the SR server:

The Internet protocol (“IP”) address of the SR Server (the “Subject IP Address”) was “leaking” from the site due to an apparent misconfiguration of the user login interface by the site administrator i.e., Ulbricht. FBI agents noticed the leak upon reviewing the data sent back by the Silk Road website when they logged on or attempted to log on as users of the site. A close examination of the headers in this data revealed a certain IP address not associated with the Tor network (the Subject IP Address as the source of some of the data). FBI personnel entered the Subject IP Address directly into an ordinary (non-Tor) web browser, and it brought up a screen associated with the Silk Road login interface, confirming that the IP address belonged to the SR Server.

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