Author Archives: SHG

Appreciating Gender Studies

I once suggested that the reason gender and deviant sexuality majors were underemployed and underappreciated was because it was a less than useful endeavor. I was taken to task, naturally, for my anti-intellectualism and lack of interest in how other genders feel.  I was not convinced.

But now that there is a twitter account called Peer Reviewed, I have seen the error of my ways.

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But For Video: Skeptics Edition

As video began emerging of police encounters, some embraced it as the solution, the thing that would answer all questions, solve all problems, fix everything. Others warned that it was a good thing, but hardly the solution. A little thought, and the issues with video became, well, apparent. From missing video, to doctored video, to incomplete video, to distorted video, problems were manifest.

In the New York Times, police law prof Seth Stoughten did a demonstration of why, sometimes, your eyes do deceive when there is a video that appears to answer questions but really doesn’t.  His point wasn’t that video was unhelpful or a bad thing, but that the unsophisticated reliance on video, the view that video is the solution, fails to grasp that it’s not without flaws.

Tim Cushing at Techdirt explains how the police have figured this out as well, and are now busy exploiting the flaws.

Officers are actors and directors in their own scenes. Even when performances are captured by bystanders and their cell phones, there’s still plenty of “drama.” Multiple cops swarm the same suspect, blocking the body from view. Officers shout “Stop resisting!” even when subjects are prone with hands behind their back and under the weight of four or five cops. This allows officers to deliver extra amounts of force, instantly justified by the repeated shouts about resistance. Continue reading

Government To Apple: We’re Ba-aa-ack

It was quiet. Calm. A couple of weeks ago, the government claimed it found a hack and no longer needed Apple’s help, though it deeply appreciated Mag. Sherri Pym’s time. Thanks, but no thanks. We’re good, said the government.

All those amici, the arguments, the op-eds, the TV appearances by Jim Comey and Cy Vance, explaining why terrorism was Apple’s fault; all for naught.  So we turned our attention back to what Kim Kardashian had to say. But while we were snoozing, the government was getting ready to clean up loose ends.

The government has notified EDNY Judge Margo Brodie that it will challenge Magistrate Judge James Orenstein’s adverse Apple order.  The government has obtained a new order from Boston Mag. Marianne B. Bowler requiring Apple to crack an iPhone.  Senators Richard Burr and Dianne Feinstein have released a “discussion draft” of a proposed bill to require a backdoor be built into encryption and a new op-ed will appear in the New York Times by some ex-government counterterrorism guys explaining why Apple is hurting its customers by refusing to be a good corporate citizen.

What? You thought this was done? Continue reading

Owen Labrie Will Not Go Down Quietly; Nor Should He

The Concord Monitor makes a point in its opening line:

Owen Labrie refuses to go down quietly.

And, indeed, why should he?  His sentence is a year in jail, and now that Judge Larry Smuckler has revoked his bail pending appeal, forcing him into solitary “for his own protection,” there isn’t a lot of time to wait for an appellate court to reverse his conviction for being the high school boy hated, no, despised, for being little different than every high school boy prior to the Great Neutering.

Hate the Great Neutering all you like, but don’t make Owen Labrie responsible for your angst over rape culture.  He’s just a kid, a scholarship student at St. Paul’s who worked hard enough, was smart enough, to get into Harvard.  He’s a young man who did what young men have done for generations, seduce a young woman to engage in a sexual liaison. Like your father did. Like your grandfather did.

It’s horribly wrong? That’s a discussion to have going forward, but this one young man is not the embodiment of all that you despise about males. He’s just a kid, like all the others, except paying the price for your Utopian vision of gender relations.  And so one young man, one family, is doing everything they can to not let women slit the throat of this young man in the name of all that anger and hatred of women toward males. Continue reading

The CEI Subpoena Cannot Stand

It’s another one of those things that’s the “worst thing ever,” wrongthink on climate change.  Granted, many, myself included, do not share their position, but that is not the issue. No matter what you feel, the Competitive Enterprise Institute, a conservative libertarian think tank dedicated to free enterprise and limited government, is absolutely entitled to take the views that it does, to argue its views, and to be as wrong as it wants to be.

And for the offense of thinking wrong about climate change, CEI has become the target of a subpoena to reveal the culprits of its “worst thing ever” ideas.

The Competitive Enterprise Institute (CEI) today denounced a subpoena from Attorney General Claude E. Walker of the U.S. Virgin Islands that attempts to unearth a decade of the organization’s materials and work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate, led by New York Attorney General Eric Schneiderman and former Vice President Al Gore…. Continue reading

Ye Of Too Much Faith (In Juries)

New Hampshire may be small, but it’s feisty.  And when it comes to jury nullification, it’s been a leader before, and it’s doing so again.

[T]here’s been a lot of cheering about a new bill in New Hampshire, recently passed by the New Hampshire House of Representatives, that would allow juries to learn that:

Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

This is New Hampshire’s second try at making jury nullification the law. Continue reading

Welcome To The Rap Sheet California

Most non-criminal defense lawyers have never seen an actual, true-to-life, rap sheet. It’s a bundle of jargon and numbers, largely incomprehensible to untrained eyes, that tells a story of prior arrests, convictions and dispositions. And warrants.

The New York Times tried to decipher Nicholas Bowen’s rap sheet nightmare. Bowen as busted for trespassing at a friend’s home in the projects, because the cops could.

Though Mr. Bowen’s criminal citation was eventually dismissed (on the condition that he not commit a crime for a year), State Supreme Court in the Bronx, for unknown reasons, issued a warrant for the charge. Mr. Bowen claims he never knew about the warrant until almost three months later when he received a call about it from the police. Shortly after the call, he said, he went to court again, and on Feb. 11, 2009, a second judge determined that the warrant was erroneous and the matter was dismissed.

Annoying, time-wasting, stupid and wrong? Sure. Problem solved? Not quite. Continue reading

Operators Used To Be Standing By

Much as I enjoy marketing guru Seth Godin’s insight into the twisted world of self-deception, he went a step too far.

When did companies start talking about, “unexpectedly high call volume?”

Are they really so inept at planning that the call volume is unexpected? For months at a time?

Even non-legacy companies like OpenTable are using it to describe their email load.

Once an institution starts glibly lying, it’s a slippery slope. A reality distortion field moves from on-hold time to diesel emissions.

Let’s be clear. Nobody, with the possible exception of someone’s grandma, believes that customer services is “experiencing a higher than expected call volume.”  Nobody believes that they are there to provide you “with excellent customer service.” Nobody believes they “understand your frustration.”  Nobody believes they are “sorry for the inconvenience.” Nobody believes they give a flying shit.  And that’s especially when true when there’s the faint accent of Tagalog when saying it. Continue reading

WhatsApp and What’s Next?

During the course of the government’s aborted attempt to force Apple to create a backdoor to access the San Berdoo shooter’s iPhone, the geeks kept muttering under their breath, “WhatsApp.”  They weren’t crazy. This time.  It just wasn’t the issue on the table at the moment. Focus isn’t their strong suit.

But now that the government has pretended to have cracked the iPhone problem, in the face of a potential scorched earth ruling like the one they were handed in Brooklyn, with tons of people arguing that they were full of shit and only a handful of Nancy Grace fans thinking that Jim Comey and Cy Vance were particularly handsome devils, the heat is off Apple. The time has come to consider the next new thing in encryption.

Mountain View is home to WhatsApp, an online messaging service now owned by tech giant Facebook, that has grown into one of the world’s most important applications. More than a billion people trade messages, make phone calls, send photos, and swap videos using the service. This means that only Facebook itself runs a larger self-contained communications network. And today, the enigmatic founders of WhatsApp, Brian Acton and Jan Koum, together with a high-minded coder and cryptographer who goes by the pseudonym Moxie Marlinspike, revealed that the company has added end-to-end encryption to every form of communication on its service.

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Rolling Stone’s “Jackie”: Deposed, But Still Too Precious

Her lawyers argued that it would be too traumatizing to subject “Jackie,” if that’s really her name, to a deposition.

Lawyers for the former student, identified in the magazine only as Jackie, argued that having to relive the ordeal could traumatize her again. But the woman is a key figure in the lawsuit by Nicole P. Eramo, an associate dean, who says she was portrayed as the “chief villain” in the 2014 article.

Relive what ordeal? The one she lied about. The one that happened in her fantasies? The one she used to bootstrap her banal existence into national fame? Then notoriety when it was revealed she was a liar? That ordeal?

The good news was that the judge rejected the argument as a blanket justification to prevent her from being deposed. Continue reading

The Other Black Face Problem

It would be a wonderful world if skin color played no role in perception.  Some feel that should be the case, and if so, it comes at the price of innocent black defendants going to prison.  You see, reality doesn’t always comport with the world as we wish it was, and one piece of that ugly reality is that white people struggle to differentiate black faces.  Get over it.

“The vagaries of eyewitness identification are well-known” and “the annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228 (1967). In recent years, the legal and scientific communities have recognized the particular risk of mistaken identifications, and therefore convictions of the innocent, posed by cross-racial identifications in which the identifying witness and the suspect arc of different races. In 2014, the National Academy of Sciences reported that “cross-racial (mis)identification” accounted for “42 percent of the cases in which an erroneous identification was made.” Identifying the Culprit: Accessing Eyewitness Identification at 96 (The National Academies Press, 2014). Over 40 years of robust research have now documented the significant difficulty individuals have in discerning between, and therefore accurately recognizing, the faces of people of a different race from their own.

This comes from the summary of argument in the defendant-appellant’s brief in People v. Boone, coming before the New York Court of Appeals.  The issue in the Brooklyn case arose when Acting Supreme Court Justice Vincent Del Giudice refused to charge the jury as to cross-racial identification.

The defendant, Otis Boone, is black, and was convicted of two counts of first degree robbery and related offenses, street muggings that lasted one minute, based upon single witness identifications by white victims.  Defense counsel requested that the court charge the jury, per the Criminal Pattern Jury Instructions on single witness IDs. Continue reading

The Privacy Lie

When Dan Solove wrote The Future of Reputation, it was a warning.  If you want to maintain your privacy, then keep your information private. But that’s hard work. It means not being able to do anything you want to do, because we’re entitled to do so. It means we don’t get to display our lives on Facebook and Twitter, gather up our likes and followers, then scream about how others have invaded our privacy for taking notice.

After all, don’t we have the right, the entitlement, to be fabulous in public while simultaneously controlling our public personas and denying its use when it’s not to our liking?  Why no. No we don’t.

So why does an op-ed by Robert Levine appear in the New York Times arguing that we can have it both ways?

What we really need are more nuanced laws that can safeguard privacy in the digital age. Courts in the United States have held that public figures are less entitled to privacy than the rest of us. But the Hogan case became less about who’s a public figure and more about the ways in which the Internet has allowed our private information to be made public in ways we didn’t intend.

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