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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The Virtues of Being Tone-Deaf (Update)

On the twitters a few days ago, I asked why Eugene Volokh’s excellent post about responsible behavior following the J-Law hacking wasn’t the target of the usual ad hominem attacks by anti-revenge porn advocate Mary Anne Franks.  David Ziff responded that it was the tone, an answer that failed to account for the many other “civil” reactions that were viciously castigated as “blame the victim” misogyny. Still, it seemed to be a great excuse.

But the complaint of tone, of civility, is one that not only permeates discussion amongst the self-proclaimed intelligentsia, but is now manifested in the sort of manipulation of the concept of expression seen from Berkeley’s Chancellor Nicholas Dirks and the Cyber Civil Rights folks.  It’s being reflected in laws criminalizing bullying, revenge porn and, indeed, discussion on any matter of controversy.  It was, as lawprof Bernie Burks explained to justify ignoring the arguments of law students that they had been burned, the toxic tone.

There are a lot of people who feel more comfortable with discussion characterized by a gentleness, a civility, that they embrace this idea.  The debate is more pleasing to their sensibilities, even if each of us draws the line of propriety in a slightly different place.  To indulge our own sensibilities, we willingly go blind to the fact that what is happening is that we relinquish a piece of our own argument for the benefit of a more pleasant discussion.

This is a terribly unsound practice, but a hard one to convey.  People are willing to give up a lot to avoid unpleasantness, and they are particularly happy to do so when they ask that someone else give up their ground for pleasantness.  Fredrik deBoer, a doctoral student in rhetoric, provided a very clear explanation in a post called “ah civility.” Continue reading

Such A Deal (or Snitches Get Stitches)

In a delightfully titled post that gets the joke backwards,* Pigs get fed, hogs get slaughered [sic],  Judge Richard Kopf poses the question that arose in the Third Circuit opinion in United States v. Erwin.

If you are a drug dealer with a Criminal History Category of I, and you cooperate, sign an appeal waiver, and then breach the appeal waiver because you are unhappy with the sentence of 188 months (151 to 188 months was the range after the cooperation departure motion) rather than somewhere at or below the statutory maximum of 240 months (without the statutory max., the range was 262 to 327 months) , what’s the worst that can happen?  According to the Third Circuit, a defendant who breaches the plea agreement in such a situation will find his 188 month sentence vacated, and the case remanded for resentencing without the motion for departure!

For those who don’t appreciate the ramifications, allow me to explain. Christopher Erwin ran a large-scale oxycodone distribution ring in New Jersey, which the prosecution tagged the “Erwin Organization” because it always sounds most nefarious when you give it a cool name.  Even though Erwin was the top dog, he decided that his best move was to flip out on his underlings, and the government was only too happy to oblige.

So Erwin became a rat, copped out and took down his own people.  He executed a plea agreement that included a waiver of appeal.  The government dressed him up in fancy ribbons and smeared him with lipstick, and he served his purpose. Then came Erwin’s day to be sentenced.  Continue reading

Fear and Stress Are The Lesson

Law students are “among the most dissatisfied, demoralized, and depressed of graduate student populations.”  So what’s stopping them from getting their Ph.D. in art history?*  After all the Mona Lisa never says “denied,” and Starry Night doesn’t depend on its lawyer to save it from the death penalty.  From the WSJ Law Blog:

Law schools have their own version of Scared Straight in the form of cautionary tales. Those are the stories that professors share with students about attorneys who suffered embarrassment or worse for a mistake they made. A good example is the story about the attorney who failed to notice an autocorrect error in his appellate brief that changed the phrase “sua sponte” to “sea sponge.”

But professors who sprinkle their classroom lecture with cautionary tales about attorneys’ goofs should themselves take heed, says Abigail Patthoff, a legal research and writing scholar at Chapman University in California.

There is a reason to instill fear in law students.  It’s to make them aware of the fact that their mistakes destroy other people’s lives.  Patthoff has an article coming out in the Utah Law Review called “This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students,” arguing that law professors should stop scaring law students by stories of disaster in order to reduce their stress. Continue reading

Berkeley Speech: We’re Being Dirked

Nicholas Dirks, Chancellor of UC Berkeley, sent out an important email about free speech.  It’s not important for what it contributed to the dialogue about it, but rather for what it seeks to take away.  It’s couched in kind, maybe even beautiful words, and it promotes a value that many hold dear.  And it’s very dangerous.


At Popehat, Ken parses Dirks’ email line by line.  Some commenters there have questioned whether Ken has taken an uncharitable view of Dirks’ meaning.  As the words speak for themselves, anyone who sees a more benign meaning to a particular word or sentence is free to read it differently. Continue reading