A Lesson in Proportionality

The BBC headline is a laugh riot:

Finland: Speeding millionaire gets 54,000-euro fine

For those of you who aren’t up on your euro to dollars conversion, that would be a fine of $58,554.90.  Nuts?

Finland’s speeding fines are linked to income, with penalties calculated on daily earnings, meaning high earners get hit with bigger penalties for breaking the law. So, when businessman Reima Kuisla was caught doing 103km/h (64mph) in an area where the speed limit is 80km/h (50mph), authorities turned to his 2013 tax return.

The real issue here is whether penalties, like taxes, should be progressive or regressive, and the question takes on particular significance following the disclosures of punitive fines in Ferguson.  A fine of a few hundred dollars is chump change to a guy who can whip out his wallet and pay it, but it’s a king’s ransom to someone living hand to mouth. Or worse. Continue reading

Linguistic Fingerprints, Feature or Light Bug?

Because everything we really need to know about law and law enforcement comes from TV, a CBS show, Criminal Minds, picked up on a 2008 Alabama homicide case where Earnest Stokes got nailed because of a peculiar quirk in his writing:

Inspiration . . . came from former FBI special agent and linguist James R. Fitzgerald, who became an adviser to “Criminal Minds” in 2008. Blake, he says, is a combination of him and his fiancee, Georgetown associate linguistics professor Natalie Schilling.

The incident, Fitzgerald says, is based on a 2008 homicide case, State of Alabama v. Earnest Stokes. In a linguistic report he prepared for the prosecution, Fitzgerald said he found the term “light bug” in an anonymous letter attempting to lead investigators off the track (“His [sic] had busted the light bug hanging down”) and in a tape-recording of suspect Earnest Ted Stokes. That was one of the lexical clues leading Fitzgerald to “opine” “with a likelihood bordering on certainty” that Stokes was the author of the unsigned letter.

So the takeaway is to teach your clients the difference between bulb and bug?  Not exactly. Continue reading

Sometimes, A Joke Is Just A Joke

What happened to Adria Richards since Donglegate went well over the top.  When the boys at 4Chan decided to take matters into their own hands, to “pay her back” for Hank losing his job over his goofing around with a friend at PyCon, they proved that the mob can’t be controlled.  As Jon Ronson’s story in Esquire reveals, the outcome has been horrible for all involved.

The only thing that could make this story sadder and more pathetic is that no lesson was learned.  And yet, that is clearly the case.

Two years ago, Adria Richards was at PyCon, a tech conference, when a man behind her made sexualized jokes to another man, in violation of the conference guidelines. The jokes persisted for several minutes and at a volume much louder than a whisper, despite how they have since been mischaracterized by others. Adria’s building discomfort with the distraction led her to report them to the conference organizers. The first guideline in reporting said that identifying the person was key. Adria, thinking it would be unlikely that men would willingly identify themselves if she asked so, decided to use her smartphone—a strategy applauded for identifying street harassers and one which would later be applauded in Ferguson last year.

Adria Richards was offended by the “sexualized jokes,” or to add the detail omitted, Continue reading

Robert Murray In The Unofficial Reports

The legend across the top of the decision reads,


Fortunately, this isn’t an official report, because what Kern County, California prosecutor Robert Alan Murray did was so outrageous, so incredible, as to demand it be reported somewhere.  Sidney Powell reported it in the Observer, and I would be remiss not to spread it as widely as possible.

Robert Murray. Joker.

The defendant, Efrain Velasco-Palacios, was charged with five counts of lewd and lascivious conduct with a child.  As his public defender, Ernest Hinman, was trying to work out a plea, which the defendant was unwilling to accept, Murray tried to up the ante to force the deal. Continue reading

Between A Rock And A Hard Drive

Let’s say a client screwed up.  That’s one of the reasons they come to a lawyer, since they avoid us like the plague otherwise. They downloaded some porn and, included within it, was pornography involving a minor.  That wasn’t their thing, and they, like you, are disgusted and appalled by it.  Yet, there it is, on their hard drive, with the trail from the file sharing site leading straight to their computer.

Mark Bennett raises the dilemma.

It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?

Continue reading

Don’t Yates Me, Bro

Sometimes it’s two words, like “tangible items.” Other times, four, like “established by the state.” But words are, for lack of a better word, a bitch.  When it comes to law, the meaning of a word could mean the difference between freedom or prison, between guilt and innocence.  They matter.

Historic crimes, murder for example, are considered pretty well understood.  They’ve been around forever, firmly established in the common law preceding statutory penal laws, and subject to contentious parsing over and over, until most would presume we know what they are.  Yet, we still see the occasional challenge that “changes everything,” such as when New York’s Court of Appeals held “depraved indifference” murder was a mens rea element rather than an objective component of the offense.

But words are easy. We use them all the time. We know what they mean. Even if we can’t give a specific definition (how do those guys who write dictionaries come up with those definitions?), we know.  This, of course, is how normal people view words. Lawyers, on the other hand, have a tendency to defy normal. It’s not one of our most endearing features.

In the post-Enron environment of white collar crime, where so many get the sense that bad stuff is happening that somehow eluded prosecution, the attempt to craft laws to criminalize conduct has brought along a problem, readily apparent in the recent Yates decision by the Supreme Court.  Continue reading

If It’s Wednesday, We Like the Feds (Update)

The Department of Justice issues two reports, one condemning the police in Ferguson, Missouri, for racism, and the other concluding that its investigation did not support bringing civil rights charges against Police Officer Darren Wilson for killing Michael Brown, or as Paul Cassell victoriously proclaims, he was right all along and Wilson’s been cleared.  Both are all over the news, and need not be repeated here.

What’s astounding about this is how the Department of Justice’s reports are applauded, embraced with love and blind acceptance, because . . . we trust them so completely.

What happened here?  How did the DoJ, the very same DoJ that is the subject of such anger and derision from its abusive prosecutions to its deception and duplicity in the care and feeding of constitutional rights, suddenly become the font of truth and trustworthiness?

This isn’t to say that the reports are wrong, or baseless.  As David Menschel twitted, “It’s almost like US DOJ read @radleybalko in WaPo and @ArchCityDefense‘s white paper and simply adopted the analysis.”  It’s that the DoJ confirmed our belief that the cops in Ferguson are as bad as we thought they were.  Hooray!  We were right all along!  Continue reading

Defend, But Only So Much

The Dersh’s conundrum was obvious: he was accused of heinous conduct in a proceeding where he wasn’t a party, thus precluding him from the opportunity to present a defense.  So he took to the streets to defend his honor and reputation.  This isn’t to pick sides in the fight, but to acknowledge that it is a fight, and even the Dersh gets to defend himself.

Not so, cry the women of Harvard Law School, Anna Joseph and Kerry Richards.

Alan Dershowitz—famed defense attorney and former professor at Harvard Law School—has been accused of being one of the individuals who were provided with an underage “sex slave” by Jeffrey Epstein, Dershowitz’s friend and client. Dershowitz has not been charged with a crime and is not a party to the lawsuit in which the accusing affidavit was filed. Though neither Dershowitz’s liberty nor his property are at stake, he has responded with public and aggressive victim-blaming.

Continue reading

Why Would They Lie?

Richard Wesley conducted himself appropriately as a school counselor and child behavioral specialist at the Sixth District Elementary School in Covington, Kentucky.  That’s where he used to work, before he was falsely tarred a child rapist because Covington cop Joanne Rigney, at the behest of social worker Alison Campbell, decided to destroy him.

From the 6th Circuit in Wesley v. Campbell:

Both claims arose from the same incident, in which one of Wesley’s then-students [7-year-old J.S.] accused Wesley of sexually assaulting him and two other students in an office at the school’s administrative center. Rigney waited almost three months after the student made his allegations before seeking a warrant for Wesley’s arrest and then omitted from her application a range of material facts demonstrating the unreliability of the student and his allegations. Taken together, those omissions thoroughly undermined the existence of probable cause.

The case was classic, a child got in trouble, came up with a story to shift focus to Wesley, and the story then grew legs.  A neglectful mother ran with it to a social worker, who ran with it to a cop who shared her deep concern for children.  Continue reading

21st Century Policing: You Can’t Handle The Truth

The President’s Task Force on 21st Century Policing issues its interim report.  If you’re not the sort of person to get invited to serve on a President’s Task Force, because you’re not official enough to make the cut, chances are you won’t make it past its self-congratulatory opening, where official people thank other official people for being very official.

As with any document prepared by officials, it’s jargon-filled and skimpy on substance.  No doubt academics will parse the interim report for its deep meaning, though few will ask themselves why it has to be parsed. Couldn’t it just say what it means?

Yet, there is some meaning to be found in the weeds.  The report, coming on the heels of Ferguson, offers a heady mandate:

Trust between law enforcement agencies and the people they protect and serve is essential in a democracy. It is key to the stability of our communities, the integrity of our criminal justice system, and the safe and effective delivery of policing services.

The mission of the task force was to examine how to foster strong, collaborative relationships between local law enforcement and the communities they protect and to make recommendations to the President on how policing practices can promote effective crime reduction while building public trust.

Continue reading

When The FBI Went Rogue

The integrity of public functions isn’t exactly a cause easily dismissed.  After all, who out there wants to openly champion the idea that the government need have no integrity, because it’s got the guns and, well, you don’t. What you gonna do about it?

So how pissed off must Mike Horowitz, the Inspector General of the Department of Justice, have been when the Federal Bureau of Investigation told him to go suck eggs?  Pissed off enough to go public.  Airing dirty laundry is not something the DoJ or the FBI wants to do. It conflicts with their desire to give themselves awards for their bravery and service.

When Horowitz went public with the FBI’s intransigence last fall, one might have thought that would be sufficient to get a little cooperation.  After all, Mike wasn’t some nasty outsider to the cause, the kind of IG to go looking for problems under every rock.  Mike has been in the fold forever, and while he’s the sort of guy who will do his job, he won’t see his job as manufacturing problems where none exist. Continue reading

Politics Aside, Statutory Interpretation Matters

When it comes to criminal law, nothing is more important than the language of a statute. From the due process perspective, a law must give notice of what it prohibits.  Not just, “well, everybody knows what it means” from zealous advocates of criminality who can’t figure out a way to clearly express their ideas, but want so badly to criminalize something that they are fully prepared to criminalize far more.

It’s easy to fall back on appealing phrases like “the spirit of the law,” which exist in the imagination of those who believe in spirits.  Your spirit says something is a crime. Mine does not. And the prosecutor’s spirit says our spirits don’t count anyway, and the only spirit that matters is his.

This is why words matter. Definitions matter. No matter how much it hurts, these are the only tools available to create a law, or we fall subject to the whims of whoever has the biggest spirit.  And rarely does that turn out to be us.

On the eve of oral argument in King v. Burwell, a clash of intellect and emotion will reach its zenith.  In an homage to canons of interpretation, Michigan lawprof Nicholas Bagley made an impassioned plea in the New York Times for the Supreme Court to ignore the words of the Affordable Care Act. Continue reading