Author Archives: SHG

Disrupting Google, SWAT Teams and Tanks Edition

At the WaPo Conspiracy, Orin Kerr has been deconstructing an order by D.C. Magistrate Judge John Facciola for the search and seizure of email and social media accounts that, after concluding there was no probable cause, refused a warrant because he held none was needed.  Jeff Gamso explained why that was disturbing.

Orin has continued dissecting Mag. Facciola’s order, and come down to a very curious “strong suggestion” about how a warrant for emails should be executed:

[T]his Court can see no reasonable alternative other than to require the provider of an electronic communications service to perform the searches. Under the government’s demand that it be given everything, the government leaves the Court with only two options: deny the warrants — thus depriving the government of needed information — or issue warrants that are repugnant to the Fourth Amendment. Neither is viable.

In other words, rather than let the government rummage through a customer’s account at Google, where his gmail emails are held on a server down the hall from the juice bar, make Google do it.  Continue reading

But For Video: An Execution in Albuquerque

It’s not that 38-year-old James M. Boyd was the sort of fellow you would want to invite to dinner. He was homeless, perhaps mentally ill, and an illegal sleeper in the foothills outside Albuquerque.  But that’s not a reason for the cops to execute him.  And the word execution is not hyperbole.

There was a long stand-off, variously described as 3 to 4 hours, preceding the video. And the video shows how it was about to end peaceably, the heinous offense of a homeless man camping where the law can’t tolerate it.  Maybe this is how they roll in New Mexico, given that they have a lot of open space and can’t have people illegally sleeping in it when they have nowhere else to sleep. Whatever. Continue reading

The Danger of Posner’s Article III Fashion Show

Jurors are instructed not to visit the scene of a crime, or conduct any investigation on their own.  They’re told that they may not consider any evidence not presented to them in court.  And it’s presumed that jurors follow these instructions. When they don’t, they may be dismissed from the jury or, should matters undermine the integrity of the proceeding, bust the trial.

But then, Richard Posner isn’t a juror, but a judge on the 7th Circuit Court of Appeals. He doesn’t have to follow no stinkin’ rules.  Josh Blackman posts about what he calls Posner’s “fashion show” in his consideration of the appeal in Mitchell v. JCG IndustriesIt begins with a rather pedestrian problem, that the court was confronted with two different factual claims, pretty much like every other trial.

The district judge did not opine on how long the donning and doffing take, a question difficult to answer in the usual way of judicial fact determination. The plaintiffs would testi‐ fy that it takes 10 to 15 minutes, the employer that it takes only 2 to 3 minutes, and how would a judge or jury know who was telling the truth? Continue reading

Even The Guiltiest

According to the Lockport Union-Sun & Journal, Matthew Murphy was “[b]itten by the ‘prosecutorial bug’” when he got a job as an assistant United States attorney.

“I liked it. You feel like you’re helping people there,” Murphy said. “You can see in a tangible way that you’re helping people when you serve as a prosecutor.”

After a brief stint on the dark side, he was elected Niagara County District Attorney, and served in that office for 16 years, longer than anyone else.  But time came when he began to feel old, and needed a new challenge. So Matthew J. Murphy III became a judge.

What’s that sound?  It’s the assumption that anyone who was weaned on ham sandwiches Continue reading

Why Gleeson Is Wrong (Or The Adoration Of The Fearful)

In United States v. Diaz, EDNY Judge John Gleeson ripped the heart out of the beloved United States Sentencing Guidelines approach to drug sentences.

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

Unsurprisingly, defendants have been raising Judge Gleeson’s argument since for the proposition that courts should categorically reject the drug guidelines and depart downward. Vastly downward, as far as 18 U.S.C. §3553(a) will take them.

At the WaPo Conspiracy, former federal judge cum victim’s rights advocate, Paul Cassell, Continue reading

TSA’s Billion Dollar Scam

The New York Times reports that the Government Accountability Office has taken issue with the Transportation Safety Administration for squandering $1 billion on voodoo.

Like the rest of us, airport security screeners like to think they can read body language. The Transportation Security Administration has spent some $1 billion training thousands of “behavior detection officers” to look for facial expressions and other nonverbal clues that would identify terrorists.

But critics say there’s no evidence that these efforts have stopped a single terrorist or accomplished much beyond inconveniencing tens of thousands of passengers a year. The T.S.A. seems to have fallen for a classic form of self-deception: the belief that you can read liars’ minds by watching their bodies.

A ridiculous waste of money? Don’t be so naïve. John Pistole, Continue reading

Trolled By The Big Soapbox

My pal, Venkat Balasubramani, twitted me a link to an article that was on a subject that interested me, disruption and non-lawyer ownership of law firms.  It was written by Sarah Reed, who identifies herself as the general counsel of a venture capital firm, CRV, which would give it some superficial credibility.  But more importantly, it appeared in Techcrunch.

As one commenter said:

She is actually a lawyer…

Her post suffered from two fundamental flaws. First, it was a rehash of ideas that were fresh and vibrant five years ago. Second, the thrust of her article is that the only really disruptive notion in law is non-lawyer ownership, which just happens to align perfectly with the interests of CRV, thus allowing venture capital to grab a piece of the law market.  She neglected to mention any self-interest in her post. Continue reading

In Praise of Tenure

The ABA Section of Legal Education and Admissions to the Bar made some changes in light of the cries for law schools to earn their tuition.  One change it did not make was the elimination of tenure as a requirement of accreditation.  This was their chance to rid the academy of the cost of carrying dead weight, crusty professors who cost a fortune despite being on cruise control.

The argument for tenure has long been grounded in academic freedom, the ability of scholars to take controversial positions without fear of losing their jobs.  It’s morphed somewhat to variations on the theme, to incorporate inclusory politics into the mix.

Critics of the current standard, of which there are many, question the need for tenure as an accreditation requirement. They also say the requirement has helped to drive up the costs of a legal education, perpetuates a caste system and limits law school flexibility in staffing. Continue reading

Negotiation Knows No Gender

The story of the job-seeking  woman philosophy Ph.D. who tried to negotiate a better deal with Nazareth College has made the rounds already.  After getting an offer, she countered, which was what people should do, but women too often feel uncomfortable doing, according to the Lean In brand.

It didn’t end well:

However, instead of coming back with a severely tempered counter-counter (“$57k, maternity, and LOL”), or even a “Take it or leave it, bub,” Nazareth allegedly rescinded the entire offer.

The candidate was shocked. “This is how I thought negotiating worked,” she explained to the Philosophy Smoker in a follow-up missive, “how I learned to do it, and, for that matter, how I think it should work: You ask about a number of perks and maybe get some of them. I was expecting to get very few of the perks I asked about, if anything … I just thought there was no harm in asking.” The Philosophy Smoker found it “flabbergasting.” Continue reading

Snitches, For The Win!

The argument in favor seems pretty straightforward. First, they come afterward, so it’s a bonus rather than an incentive to lie. Second, they are still required to tell the truth, so if it’s the truth, it’s harmless. Third, snitches are reluctant to be snitches, and without snitches, nobody would ever be convicted. And finally, if they told prosecutors about it, someone would feel compelled to tell the defense, and that would ruin everything. The point is to get the bad guys, and this is how it’s done.

While no one from the Durham Police has said any of this, it’s what I would expect them to say.  The end justifies the means, and they believe their goal to be true and just when they pay snitches a bonus for conviction:

A long-standing financial bonus program for criminal informants operated by the Durham Police Department could violate defendants’ right to a fair trial and possibly taints their plea agreements.

For 10 years, DPD has offered extra money to undercover informants willing to testify in court and cooperate in drug cases. However, those incentives were offered without the knowledge of prosecutors or defendants. This new revelation could prompt the review of more than two-dozen closed cases. Many of the defendants involved in those cases were imprisoned or scheduled for deportation.

There is no “could” about it. It is a flagrant violation of Brady v. Maryland, no question whatsoever, and every rationalization for doing so fails. Miserably. It is absolutely, fundamentally wrong.

But the cops were a bit shrewder than most, keeping it their dirty little secret rather than risking some Pollyanna would spill the beans.

“[T]he D.A.’s office was not aware of any agreement to pay confidential informants at the completion of cases,” said Assistant District Attorney Roger Echols in an email last month to Ian Mance, a lawyer for the Southern Coalition for Social Justice. “We were also not aware of, if there were any, payments to confidential informants for bonuses. If we had that information or known it existed we would have provided it to the defendant in discovery.”

If this was an ongoing program for a period of years, it raises questions. Is it really possible that no one in the D.A.’s office knew about it?  Secrets like this are incredibly hard to keep, especially when prosecutors are prepping their snitch and he asks over and over, “and I’ll get the bonus if he’s convicted, right?”

If that never happened in the ten years of the program, this should go in the secret hall of fame, as it’s the first and only time such a thing has ever happened.

Unsurprisingly, the police claim that there is no such policy.  The post-conviction bonus is just something they like to do. You know, spontaneously. Because they are appreciative guys.

There is no written departmental policy on the bonuses, because every case is different, Peter said. Financial arrangements made during active cases are limited, and many bonuses are paid spontaneously following the completion of a case.

“There’s an art to it. Sometimes you pay [the informant] because he’s a standup guy. You tell your sarge, ‘I told him to make himself available, and he was there. I’d like to pay him two-hundred bucks because he kept his word, and there’s another house where he says he can make a buy from.’ That’s not unethical.”

Is it bad to be appreciative?  Is that wrong?  And the police deny that it’s for a conviction, rather than just for their willingness to be good citizens.

The police department denies that bonuses are triggered directly by convictions. Of the six forms including the term “conviction,” five were written by DPD officer Carl Husketh, who was investigating drug trafficking crimes at the time. According to Peter, Husketh mistakenly used the wrong term and will refrain from doing so in the future.

“To him [the term 'conviction'] meant ‘case disposed of,’” Peter said. “We’ve never paid for a conviction. I think that’s unethical.”

If you squint real hard, there is a great deal of sense to what the cops are doing. Snitches aren’t always the most reliable folks when it comes to showing up. This is particularly true of paid snitches, as opposed to cooperators working off a case. While the latter get paid in kind, the former may not find the money a sufficient incentive on any given day.

And likely, the cops aren’t exactly lying, as the value of a bonus isn’t just in one snitch’s testimony, but the word spread around the street of their largesse, which both brings in new snitches as well as provides the tacit belief that if the snitches please their paymasters, there will be a special surprise for them on the back end.  What snitch doesn’t want mo’ money?

Since most cases end in pleas rather than trials, however, there is another layer of nuance to the scheme that could elude detection.

But if a federal case doesn’t go to trial, the issue is more nuanced, said Richard E. Myers II, a former federal prosecutor and current UNC-Chapel Hill law professor.

Myers said he does not see ethical problems with undisclosed bonuses when a case results in a plea deal. They are sometimes justified when a prosecutor doesn’t want to put an informant’s life at risk unnecessarily, he said.

Myers understands defense attorneys’ concerns. “The prosecutor is holding either ace or joker and you don’t know which,” he said. “But that’s how these things work.”

While Myers’ explanation is dubious and cynical, as if there is nothing disturbing about concealing purchased testimony from the defense, the fact remains that it’s one of the huge gaps in Brady, which neglected to fix a time for disclosure except to require that it be made available for the defense to use at trial.  Many judges find five minutes before opening statement more than adequate.

So in the sense of gamesmanship, Myers is correct when he says, “but that’s how these things work.” The problem is that it is not how these things should work.  As for whether it’s ethical to conceal that the prosecution’s star witness was paid for his testimony, that’s a matter of perspective.  If one happily accepts self-serving justifications for deceit and concealment because of one’s zealous belief in his own righteousness, then it’s understandable that Myers would see it as ethical.  Others will see it differently.

But it’s hard to think that anyone here believed it to be ethical, given that the police concealed it not only from the defense, but from the prosecution as well.  If they believed this to be a legitimate deal, then why conceal it?

Because paying bonuses to snitches for convictions is fundamentally wrong, and there is no question about it. No spin, no rationalization, no excuse changes how the practice subverts the system. And if complying with the law means the cops will lose a few snitches or cases, so be it. That, professor, is how these things are supposed to work.

H/T Radley Balko


When Night Court Met “Com-pu-ters”

A generation ago, a Legal Aid lawyer named Michele Maxian took on the special projects that most of us would have loved to, but couldn’t.  The stuff we griped about that was wrong with how the system worked, and what it did to our clients, was the stuff she fought. And won.

One such case was People ex rel. Maxian v. Brown, the New York Police Commissioner who just couldn’t manage to get a defendant to arraignment on time. Suspected shoplifter, Damon Roundtree, on whose behalf the writ was brought, spent 51 hours awaiting arraignment. Michele went to war.

Under CPL 140.20(1), a police officer, after performing  without unnecessary delay the required preliminary police duties,  must without unnecessary delay bring a person arrested without a  warrant to a local criminal court for arraignment.

Justice Soloff also found . . . that the initial eleven to fifteen  hours following arrest are generally consumed by the above police  functions Continue reading

Bang ‘em For The Dersh

One of the coolest things about getting older is that if you garnered any name recognition from the early, glory days, you can parlay that into a mainstream platform for the most idiotic, self-serving nonsense imaginable.  And Alan Dershowitz is still sipping a long, cool glass of Sunny Delight.

But, but, but . . . ME?!?

In an op-ed in the New York Daily News, the Dersh explains his pet peeve:

Recently, my wife and I were strolling on the Upper East Side when a taxicab, driving well in excess of the speed limit, made a sharp turn and came within inches of hitting us as we approached the corner. Continue reading

The Dumber The Prosecutor, The Guiltier The Weev (Update: OA Link)

Oral argument in the Andrew “Weev” Auernheimer case was held before the 3rd Circuit Court of Appeals, with Orin Kerr, knowledgeable in both law and technology, squaring off against AUSA Glen Moramarco, knowledgeable in the limits of the judiciary’s virtual grasp.  The government fired the first shot, suggesting to the judges that the measure of technological prowess was the mad skilz of their law clerks, because all kids are magically computer whizzes.

But that was nothing, from the reports back of oral argument. The money quote from the government, with regard to the abnormalcy of Weev’s co-defendant, Daniel Spitler, having written code:

He had download the entire iOS system on his computer, he had to decrypt it, he had to do all of these things I don’t even understand. Continue reading

What Matters More Than A Great Selfie?

Selfies are cool, and really cool selfies are really cool. Can you blame a kid for wanting to get that really cool selfie?  Well, yes. Yes you can when the price of being really cool is the destruction of an object that’s managed to survive intact for a couple of hundred years until some selfish fool decided that his pic was more important.

Via HuffPo:

Most museums have pretty strict rules when it comes to taking pictures and touching valuable, breakable objects. So you’d think actually climbing up and sitting on a statue wouldn’t even cross your mind. Right?

Wrong. In the quest for the ultimate selfie, one student at a museum in Milan, Italy, actually broke a statue after climbing onto its lap. Continue reading

Convicted For The American Dream in the First Degree

Yulia Abair was new to the United States, having recently arrived from Russia and married an American.  But she was determined to make something of herself, starting her own massage therapy business and studying nursing.  Already, you no doubt get the same sense as the government, that this is a woman up to no good.

But the bank tellers sealed the deal.

The bank tellers told investigators that the money had a “musty,” “mildewy,” or “dirty” odor, as if it had been kept in a basement rather than freshly drawn from an ATM. Prosecutors inferred from the odd smell that the money must have come from an illegitimate source and brought the full force of the federal criminal law down on Abair.

Abair sought to buy a home in Indiana. To do so, she needed the funds from the home she sold in Moscow and deposited into her Citibank account there. Citibank was too busy filming its new commercial about how much it loves us to allow the transfer to happen. The old account was in Abair’s maiden name while the US account was in her married name, a far too complex problem for a bank to address. So she did what she had to do to buy her house. Continue reading

The Drug Warrior of Clovis North High School

If a teacher asks a student to do something, most will comply.  That’s the nature of a trusting and compliant relationship, where students believe that those in positions of authority wouldn’t tell them to do something wrong.  But if the teacher is Kelly Racca at Clovis North High School in California, there could be a problem, according to a lawsuit.

From the Fresno Bee:

Two Clovis North High School students have sued the Clovis Unified School District, saying a school employee asked them to participate in a drug sting on campus without the consent of their parents or police.

The plan allegedly hatched by Kelly Racca last March went horribly wrong: after the drug buy, the two students were unlawfully interrogated by police and threatened with arrest, the Fresno County Superior Court lawsuit says.

It began when Racca convinced a female student to go undercover for her to buy marijuana Continue reading

385,000 Ways To End Revenge Porn

The story they tell is that there is no way to stop revenge porn except by the enactment of new laws that reflect a cavalier disregard for the First Amendment. That it also serves to elevate their profile in the process, well, can’t be helped.  Except, it’s nonsense, as shown by the $385,000 judgment obtained by Marc Randazza against revenge porn site You Got Posted, Eric Chanson and Kevin Bollaert.

The woman sued as “Jane Doe,” and the federal court for the Southern District of Ohio awarded her a judgment of $385,000 against Kevin Bollaert and Eric Chanson on March 18, 2014. The Court awarded the plaintiff $150,000 each on two child pornography claims, and $10,000 on her right of publicity claim. Additionally, the Court awarded the plaintiff $75,000 in punitive damages based on Bollaert and Chanson’s conduct. In total, the Court awarded $385,000 against Kevin Bollaert and Eric Chanson. Additionally, the Court prohibited Kevin Bollaert and Eric Chanson from ever again publishing her images.

They can’t be sued? There is no effective civil remedy?  There has to be a new criminal law, and it’s such a critical need that collateral infringement of free speech is just an unfortunate, but necessary, consequence?  Well, no. Not at all. Continue reading

Play Ball: Who Cares If You’re Acquitted? (Update x2)

While this may appear to be beating a dead horse, what happened to Antwuan Ball was so outrageous, so contrary to every notion of due process, that it’s shocking. And yet, the D.C, Circuit Court of Appeals upheld it, without breaking a sweat.

To recap, the defendants were charged in a massive crack conspiracy, plus violent crimes. They went to trial, which took 8 months. The jury deliberated for more than two months before returning a verdict.  They acquitted on all counts, except a single distribution count of 600 grams of crack.  Great result? Not so fast.

At sentencing, the district court nevertheless found that all three defendants had engaged in the charged conspiracy and, based largely on that finding, sentenced them to terms of imprisonment ranging from fifteen to nearly nineteen years. Continue reading

In The Defendant’s Own Words (Update)

In a very lengthy law review article published in the Alabama Law Review, Northern District of Iowa Judge Mark W. Bennett (the “other” Bennett) and American University Lawprof Ira Robbins have done an empirical survey of the impact of the defendant’s statement to the court on federal sentencing.  It’s a disturbing study.

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

Putting aside the methodologies, the backend of the article contains Continue reading

“When You See The Muzzle Flash, It’s Too Late”

Many videos have allowed distant eyes to learn that a police officer killed a person for no good reason, ending our slavery to conflicting statements about what happened and facile rationalizations of how it couldn’t be helped.  Before then, we could pick a side and believe or not, but we could never know.

The increasing availability of video has fundamentally altered the equation of mindlessly siding with probability by conclusively proving that police are sometimes wrong, and when they are, they tend to lie about it or manufacture absurd justifications to excuse their wrongs.  And people are increasingly unwilling to believe them no matter what our lying eyes tell us.

Then comes a video like the dash cam that captured the shooting of 70-year-old Bobby Canipe by York County, South Carolina, Deputy Terrance Knox. Continue reading