Josh Blackman, who attends the future of the new normal of reinvent law-type conferences, brought this back:

I recently attended the excellent CodeX FutureLaw 2014 Conference, which for the first time, had a solid discussion on the implications of legal ethic to potential innovations in the law. Serving as the bearer of bad news from the ABA was Will Hornsby.

Will summarizes the ABA’s position on UPL–in short, this is an issue for the states, not the ABA to decide.

Two fundamental regulatory obstacles limit online legal service models – the unauthorized practice of law and the ability to capitalize legal services. What we all need to realize clearly and at the beginning of this conversation is that the practice of law and the rules and laws that pertain to these issues are regulated in the US at the state level. This is the difference between the US and the UK and Australia.

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The biggest target was Lulsec hacker John Hammond, who ended up catching 121 months, but now that it’s time to bring Hector Xavier Monsegur’s work for the government to a close, his 5K1.1 letter reveals his “extraordinary cooperation.”

A prominent hacker set to be sentenced in federal court this week for breaking into numerous computer systems worldwide has provided a trove of information to the authorities, allowing them to disrupt at least 300 cyberattacks on targets that included the United States military, Congress, the federal courts, NASA and private companies, according to a newly filed government court document.

The hacker, Hector Xavier Monsegur, also helped the authorities dismantle a particularly aggressive cell of the hacking collective Anonymous, leading to the arrest of eight of its members in Europe and the United States, including Jeremy Hammond, who the Federal Bureau of Investigation said was its top “cybercriminal target,” the document said.

When Hammond left his sentencing courtroom, he held his first in the air and proclaimed; Continue reading →

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One mystery is why cops decided that 8th grader, Javier Payne, needed to be hassled in the first place.  When news first broke, the claims were the usual ones made to justify the damage when there was nothing else to claim:

A spokesman for the police department said two teenagers were arrested, ages 13 and 14, at approximately 11 p.m. Officers charged both of the suspects with resisting arrest, obstructing governmental administration and assault.

But when a cop puts a kid through a plate glass window, you have to say something.

The 14-year-old boy sat on the stoop of the Hookah Shop in the Bronx, blood pouring from his chest and filling his lungs, and thought: This is what it’s like to die. Moments before 11 o’clock Saturday night, the boy, Javier Payne, had been smashed through the store’s plate glass window by a police officer who had stopped him after an altercation with a man on the street, witnesses said.

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Delicate little flowers aren’t born, they’re made.

— Abraham Lincoln, Second Battle of Bull Run, 1862

A master’s student at the University of Wisconsin, Anthony Llewellyn, didn’t like his professor, Sally Vogl-Bauer. She was, he maintains, mean to him.  So mean that following his dismissal from the University, he made a YouTube video. [Trigger Warning: Really lousy video ahead]

If the video is any reflection of his communication skills, the question isn’t whether Vogl-Bauer was too mean, but whether there’s any rigor in Wisconsin’s admission standards. Nonetheless, they let Llewellyn in, and he took Vogl-Bauer’s required course.  He did not think well of his professor. So, he let it be known. Continue reading →

Three guys whose work and ideas I respect wrote that the presumption of good faith is wrong.  It began with an article by Andrew Cohen at ThisWeek, and was followed up by Gideon at A Public Defender, then Radley Balko.  Much as I may appreciate their sentiment, the foundational error of posts cannot go unnoticed.

Cohen started by writing:

When I was a young man learning the law, I was taught about the “good faith” in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called “implicit covenant,” is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the “good faith” presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions.

While his 25 years in the law aren’t quite the same as my 30+ years, considering his involve writing about it from the outside while mine are formed by being smacked around in the trenches, I can’t disagree that public officials have done as much as possible to make us cynical about their motives.  Continue reading →

It started with Arielle Lipsen walking into a DEA raid at her family’s smoke shop, Purple Zone, in Alpine, Texas. It ended, to the extent it’s anywhere near an end, with Arielle’s letter of apology, a image of which appears on the Brewster County Sheriff’s facebook page. In between, a friend of Arielle’s, Tom Cochran, posted a picture and explanation of what happened to her.

“She was having a conversation with a female agent, and trying to give the agents the lock code,” Ilana Lipsen claimed. “She was trying to tell them there was no key, but a code. There were too many officers and about half of them were doing nothing, then this one agent charged at her, threw her, kicked her legs out from under her, and when she was falling, her leg brushed up against his leg. That’s when he said ‘you’re trying to beat a federal agent’ and shoved the butt of his rifle into her neck.” (via BigBendNow)

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The myth had taken hold of hackers and geeks by the throat, as was abundantly clear soon after the story broke.  But because Ladar Levison was the good guy, and because the geeks, skilled as they may be in code, were still binary in grasp.  It was wrong then, and it’s dangerous now. The myth must die, or the hackers and geeks will surely fail.

Yet, the myth was repeated in Levison’s Guardian post revealing his trials and tribulations in dealing with the government.

In the first two weeks, I was served legal papers a total of seven times and was in contact with the FBI every other day. (This was the period a prosecutor would later characterize as my “period of silence”.) It took a week for me to identify an attorney who could adequately represent me, given the complex technological and legal issues involved – and we were in contact for less than a day when agents served me with a summons ordering me to appear in a Virginia courtroom, over 1,000 miles from my home. Two days later, I was served the first subpoena for the encryption keys.

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Try telling someone that the FBI does not, as a matter of policy, record interrogations. They’re incredulous. After all, the technology to record sound, not to mention images, has been around a long time, so why would the FBI actively refuse to use it? Are they crazy?

Crazy like a fox, to be trite.  Without a recording, the only means by which a jury learns of an interrogation is through the lips of an agent.  A rambling, incoherent, ambiguous, vague hour-long interrogation is magically transformed into a cogent and concise confession.  Bad questions leading to ambiguous answers are filtered through the myopic interests of law enforcement so that they mean exactly what the agent wants them to mean.

Nuance is lost. Details omitted. Sometimes, a statement was never said at all. Sometimes, it was said, but differently, with one meaning intended and another received.  No matter, the only way to clear up the misconception is for the defendant to testify, shifting the risk to the defense.  Even so, juries believe well-groomed, sincere, articulate agents. Defendants have a reason to lie, but FBI agents would never do that. “Why would they?”, the prosecutor will argue, and the only real answer is because they do, sometimes. Continue reading →

The 11th Circuit reversed the sentence of probation imposed on Birmingham, Alabama, police officer Corey Hooper following his conviction for deprivation of rights under color of law.  He did so by beating a cuffed and compliant suspect in the face.  The guidelines range for Hooper was 70 to 87 months, but the judge departed downward to 60 months probation.

Here, the district court abused its discretion when it issued Hooper a 60-month probationary sentence. First, the court expressly declined to consider the need for Hooper’s sentence to adequately deter other police officers from using excessive force. 18 U.S.C. § 3553(a)(2)(B). By ignoring a pertinent § 3553(a) factor that was one of the “key purposes” of sentencing, the court issued a substantively unreasonable sentence.

Among the legitimate purposes of a sentence is “general deterrence,” sending a message to others that engaging in criminal conduct will result in certain consequences.  The theory behind general deterrence is perfectly reasonable.  Experience suggests otherwise. Continue reading →