Both Judge Richard Leon and Judge William Pauley, in their respective decisions about the constitutionality of NSA’s spying upon Americans by collecting and maintaining all telephony metadata, relied on the 1979 Supreme Court opinion of Smith v. Maryland.  While privacy did poorly in the decision, the opinion was factually relevant and clearly the appropriate precedent to consider.

Many are familiar with Smith as the decision approving of the warrantless use of pen registers, which Justice Harry Blackmun held permissible under the Third Party Doctrine, as failing the objective prong of Katz’s reasonable expectation of privacy test.

The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” —whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Continue reading →

As the story of former Milwaukee Police Officer Michael Vagnini’s path to prosecution reflected the failure of cops to deal with the sickest within their ranks, the outcome hasn’t proven any better.  Vagnini had a thing he liked to do when he busted someone. He liked to do it a lot.

The complaint lays out in graphic detail how the primary suspect, Officer Michael Vagnini, conducted searches of men’s anal and scrotal areas, often inserting his fingers into their rectums. Vagnini acknowledged performing one of the searches.

This went on for at least two years, and when the complaints piled up so high that even Milwaukee Police Chief Edward Flynn couldn’t come up with an excuse for ignoring it, Continue reading →

Last week’s New York Times magazine had an odd article about eBay’s shifting fortunes in the world of e-commerce.   It seems that the days of eBay being the world’s largest, never-ending garage sale are coming to a close, as it’s trying to reinvent itself as another Amazon.

Most people think of eBay as an online auction house, the world’s biggest garage sale, which it has been for most of its life. But since [CEO John] Donahoe took over in 2008, he has slowly moved the company beyond auctions, developing technology partnerships with big retailers like Home Depot, Macy’s, Toys ‘‘R’’ Us and Target and expanding eBay’s online marketplace to include reliable, returnable goods at fixed prices. Continue reading →

While we, who wait quietly to be called for our few moments in the well, attribute vast power to the guy in the robe on the big bench of a federal courtroom, federal judges may not see their authority quite the same.  This point was driven home in spades by a post by Judge Richard Kopf at Hercules and the Umpire.

About to have (a presumptively lengthy) sentence imposed, the defendant disrupted the routine with an apology for not being at his best.

When the defendant spoke, the first thing he said was “I don’t feel so well” or words like that. He was sweating profusely, he seemed shaky, and he appeared to be nauseous.. Continue reading →

Judge William H. Pauley III took his turn at bat in determining whether the government’s collection of telephony metadata might be uncool in any respect, as his brother, Judge Richard Leon, held a mere ten days earlier.  The title of this post is the TL;dr version of the opinion I used on twitter.

In ACLU v. Clapper, the court could not have been more deferential to the government.  I mean exactly that, in the sense that Judge Pauley adopted unsupported representations that the FISC Judge John Bates had concluded were false in a 2011 opinion recently declassified.

Judge Pauley swept past the issues of efficacy of the program with the rhetoric of the obvious, Continue reading →

There are some names that should never be uttered again, as they only serve to dredge up hard and divisive feelings that produce nothing useful.  So I won’t mention the name, and I ask you not to do so either.  But this guy can’t seem to get off the radar.  His next stupid pet trick was to offer his “art” on eBay (to the extent this link will work for a while to bring you to the original eBay auction, here ya go.)

It strikes me as unlikely that he’s going to see that $100,000 he thinks he made from the auction.  I may be wrong, but it strikes me as a goof (which happens when silly or absurd things are offered for sale), as it seems inconceivable that anybody loves him enough to waste that amount of money on his crappy art.  But then, it was a big enough number to draw otherwise smart people back into the mix of blind rage. Continue reading →

In about a month, the Second Battle of the Lies* will be fought in Albany.  The battle comes in the appeals of Adrian Thomas**, the trial having been a fiasco of experts that disgraced anything remotely resembling reason. The appeal is gearing up to be a battle of amicus as well, with the District Attorney Association of New York fighting for hegemony.

The first battle was fought in 2001, when the New York Court of Appeals rejected its historic jurisprudence of providing greater protection under Article 1, Section 12, of the state Constitution than the Supreme Court under the Fourth Amendment.  In People v. Robinson, New York adopted the holding of Whren v. United States. Continue reading →

Nothing makes a splash for an ambitious prosecutor like announcing a huge initiative to rid the streets of evil people, and Nassau County District Attorney Kathleen Rice is nothing if not ambitious.  When she announced that was going to after “johns,” the men who patronize prostitutes,  It was called “Operation Flush the Johns,” a nifty headline-grabbing name that was sure to put her loveliness in the public eye.

And there is was, 104 men arrested, and a huge chart with picture, suitable for framing.

Continue reading →

A handwritten letter from a person whose name was completely unfamiliar arrived at the office from an upstate New York correctional facility. It read:

Dear Mr. Greenfield,

I need a lawyer to handle my appeal. An associate suggested you. Please let me know what type of criminal law you practice, trials or appeals. Also, what is your experience? What is your won-lost record?

I look forward to hearing from you.

Sincerely,

Joe Continue reading →

Merry Christmas, all. Have a great day.

-shg Continue reading →