A number of interesting questions/comments have been posed over the past few days about the Greenfield-Franks War, as Bruce Godfrey called it.  I responded by telling Bruce that there was no such war, at least on my part.  My fight is against laws that chill free speech and sweep in the innocent with the guilt due to their poor and overbroad wording.

This was just one of them, as there have been many others.  While criminalizing revenge porn may be Mary Anne Franks’ world, it’s just one more bad law in mine. What’s made this appear differently is her avoidance and deflection of issues by resorting to attacks and name calling.  She’s done this to everyone who has challenged her, Marc Randazza, Lee Rowland, Mark Bennett, Time Cushing, Mike Masnick and, of course, me.

I’ve been treated to particularly harsh attacks. When Sam Glover noted her cries that I’m a “pervert” at the Puddle, she responded on twitter to inform him of “the facts.” He suggested she leave a comment, but she refused: Continue reading →

Granted, the story about Occupy Wall Street protester Cecily McMillan’s trial is told through colored glasses, but no lawyer who tries criminal cases can’t empathize with how the lid gets clamped on the defense’s efforts while the prosecution is given free rein to engage in wild, rampant speculation.  We have a description about trial judges, that they give a good trial, which means that they let us try our case without interfering.  It’s the best we can hope for.

The flip side of a good trial is one where the prosecution’s absence of evidence becomes an excuse to allow the introduction of wild, baseless speculation to fill the gap where facts are supposed to be.  The less evidence, the greater the latitude provided the prosecution. It’s crazy, but that’s how it works.  If the same rules that applied to real evidence were applied to the absence of evidence, the prosecution would never be able to convict.  For some reason, the idea that the absence of evidence reflects the possibility that the defendant isn’t guilty eludes some judges.

In a fair trial, the jury must consider two full texts and answer a reading comprehension question: In this case, is there any reasonable doubt that McMillan intentionally assaulted a police officer for the purpose of preventing him from performing his duties? But when the jury convicted McMillan on May 5, they had really been given only one side of the story.

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The name Sam Trapp meant nothing to me, but then, I’m not familiar with lawyers in Jefferson City, Missouri or the Ozarks.  If given a choice and a free flight, chances are pretty good that I would pass. Just the word “Ozarks” scares me, as I hear banjo strumming in the background, followed by the squeal of a pig.  Forget that details. That’s where my head goes.

But I had to figure a criminal defense lawyer, even in the Ozarks, still had a basic appreciation of our function.  Based upon this assumption, I sent Sam an email last week asking if a comment, posted in his name and with a link back to his website, really reflected his thoughts.

The comment was to my post about how the Travis County, Texas, jail was recording privileged communications between defense counsel and their clients, then sending them over to the prosecution “by accident.”  To this outrageous story, the “Trapp Law” comment read: Continue reading →

Things hadn’t gone well for the Department of Justice with D.C. Mag. Judge John Facciola.  Denying cloud warrants based on ex ante concerns of unconstitutionality, despite what the government, and even an academic, saw as a mandate to sign off under Rule 41(D)(1), here was a magistrate who just wouldn’t get with the program.

Gripe and resubmit though they might, or seek mandamus under the All Writs Act as they could, the government decided instead to take a different path following in a great American tradition.  They went judge shopping west to seek their future.  West to Silicon Valley, home of Google and Cloud Servers, where they hoped to find a more tech savvy, and less constitutionally-bound, judge to sign their papers.

Instead, they parked their Conestoga wagon outside Magistrate Judge Paul Grewal’s courtroom.  As much as they scored on the tech savvy side, their chagrin must have known no bounds when they learned that even out west, magistrate judges were familiar with the Constitution.  In his opinion in In re: [REDACTED]@gmail.com (which will stand as a case name to be remembered, even though whoever actually has that email address will probably be a bit miffed), Judge Grewal refused to acquiesce to the east coaster’s demands. Continue reading →

Dan Hull asks, “is it just me?”

Year after year, the cult of customer/client service “trends” stridently in books, trade journals, company meetings and on the internet. Service gurus are multiplying. Everyone is writing, gushing and testifying about the importance of service, often implying that service is no problem to establish and maintain. Businesses in every industry are proclaiming in giddy, self-congratulatory tones that service is, and has been for the last fifty or so years, a “core value” and “touchstone” of their success.

And yet every year, the service that each of us experience on a daily basis in our own lives is getting worse and worse.

Empty, fuzzy rhetoric tells us how much they love us instead of actions showing us that they care.  They repeat, ad nauseum, their apologies for our inconvenience, though the failure to perform as promised, as we paid for, is no inconvenience.  And then ask if there is anything else they can do for us, despite the fact that the words “anything else” don’t apply when they’ve done nothing for us to begin with. Continue reading →

Less than a month ago, I wrote about fellow blogger Eric Turkewitz at the New York Personal Injury Law Blog  being sued by Dr. Michael Katz for having accurately written about the doc’s getting butt-smacked by Queens Supreme Court Justice Duane Hart.  The crux of the case was a video taken of Katz’s medical exam on behalf of the insurance company that didn’t want to pay.

The video was evidence used in the case before Justice Hart, and this piece of evidence in a New York courtroom was uploaded to YouTube, and embedded in my post.  As of yesterday, poof, it was gone.  No notice. No letter. No email. No, questions asked before it was gone.  YouTube disappeared it.

When I was alerted to this fact, I went to YouTube to see what happened. Hackers, perhaps? A brute force attack by anarcho-syndicalists bent on ridding the web of images of doctors?  Nope, the message on the vid was clear: YouTube removed it for violating “community standards.” Continue reading →

In a New York Times op-ed. former AUSA turned Minnesota lawprof Mark Osler did a mitzvah by explaining the game played in drug sentencing.  After noting some of the problems recently raised about mandatory minimums, the pardon game and absurdly long Guidelines sentences, he goes on:

Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure. If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence. That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant. It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons.

This echoes the issues raised by EDNY Judge John Gleeson in Dossie and Diaz, but brings it to a level that has provided the core for criminal enhancement for so long, and in so many ways, that it’s really not given much thought anymore by criminal defense lawyers.  Whether state or federal, the severity of a drug crime is dictated by the weight of the drugs.  That’s how it’s done, and we take it for granted. Continue reading →

On the one hand, the cops in Quincy, California, must have seen this as a wonderful way to make friends within the community, enhance people’s views of police and, well, show the townsfolk a good time.  It’s hard not to appreciate the police when they do something nice.

And it was a nice end result, with the added benefit that they probably made a few bucks, either personally or for the widows and orphans fund (which is a euphemism for beer).  Certainly, you don’t begrudge a cop making a few extra bucks on the side, right?

But for all the happy they spread, this is very wrong. Continue reading →

Police gave stuffed animals to two children…

So begins a post at Raw Story.  Is that not heart-warming?  It’s always great to read about something nice the police did, right?  Unfortunately, the rest of the first sentence isn’t quite so sweet.

Police gave stuffed animals to two children after a SWAT team raided their home last week looking for a previous tenant, but their parents are still waiting for officers to replace the door.

Oh crap.  Another wrong door raid? What?

[Jeremy Handley] said officers were looking for a man who rented the home nearly a year before his family moved in, and Handley said he’s upset that police failed to thoroughly investigate before bursting through the back door.

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Rep. Jackie Speiers has announced her intention to introduce a bill in Congress to criminalize revenge porn, as predicted. Via US News & World Reports:

The war against “revenge porn” is about to enter Congress.

Rep. Jackie Speier, D-Calif., is preparing to introduce legislation to criminalize the non-consensual online dissemination of lewd content by jilted lovers and hackers, her office confirms to U.S. News.

This is the big prize to the crusaders, as it accomplishes what state law cannot:

Most websites hosting revenge porn, however, cannot be forced to remove the content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn’t violate federal copyright or criminal law.
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