Of the handful of case names familiar to just about anyone with a reasonably full set of teeth, Brown v. Board of Education of Topeka stands tall.  It was announced from the bench 60 years ago today, May 17, 1954.  It changed our nation.

The opinion was written by then-new Chief Justice Earl Warren, former three-term California Governor and Attorney General, a Republican appointed by Dwight D. Eisenhower.  Also on the Supreme Court was Robert Jackson, former Attorney General and Chief Nuremberg prosecutor, and mentor to 1952-3 law clerk William Rehnquist.

An old buddy of mine, John Q. Barrett, one-time fed turned crim law professor at St. Johns Law School, has maintained the Jackson List for the past generation.  As a member, I’ve had the enormous good fortune to receive John’s Jackson emails, with details, stories and background about  Justice Jackson.  This timely story arrived last week, which I share in full: Continue reading →

In a New York Times Room for Debate essay, Tim Wu sums it succinctly:

At Thursday’s F.C.C. public meeting, Chairman Tom Wheeler declared, with Lincolnesque firmness, that he would stand second to no one in his defense of net neutrality.

“I will not allow the asset of the open Internet to be compromised,” he said. Citing his experience as an entrepreneur and venture capitalist, he said he knew personally what artificial barriers to entry look like. There will be no fast lane, he declared, “I don’t like the idea that the Internet could be divided into haves and have-nots, and I will work to make sure that does not happen.”

Disaster averted, as Wheeler declares the internet to be safe from the machinations of smacking down those will refuse to grease the tubes with green, so that everyone, anyone, can access the web on the same footing. But…

[T]here is a gap between his speeches and the actual rules. The rules say, for example, that “our proposed no-blocking rule would allow broadband providers … to negotiate terms of service individually” with content sites provided that they are commercially reasonable, and don’t harm Internet openness.

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Pandering to fear and ignorance is far easier than trying to think hard or, harder still, explain something thoughtfully.  The limit may be one’s ability to explain well, but more often it is the ability and willingness of others to listen, to think, to care about anything beyond their transitory self-interest.  And when it comes to self-interest, there is nothing more likely to trump reason than safety.

So when North Dakota State University Police and Safety Office Director Ray Boyer decided to ban its budding fencing club from campus, the pitch was easy:

“What is more at issue is a society that has been conditioned to violent and often deadly behavior as a result of individuals’ use of weapons on campuses and in schools, that has led to a public reporting of these incidents with an expected police response to use deadly force to end the threat.”

“When the public sees someone displaying a sword in public in a hostile manner with another individual, it is reasonable for me to believe today that they would call police with an expectation that police respond with equal or greater force.”

“Sometimes the safest way is simply to have no weapons, real or perceived, on campus.”

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The “incident” involved a Springfield, Missouri police officer, Jason Shuck, who shot a panhandler outside Wal-Mart.

There’s no indication the man shot was armed at any time. He was running away from the officer when shot, police have said. Court records indicate that the man has been diagnosed with mental illnesses including schizophrenia and bipolar disorder.

Sadly, it’s become a rather pedestrian story that a police officer shot a person for running away.  No threat of harm to the officer. No First Rule of Policing issue. No threat of harm to anyone else.  He just didn’t do as he was told, and it’s easier to shoot than run after him.

But what distinguishes this story isn’t the underlying facts, but the way it was reported by the Springfield News-Leader.  This is what they report about Shuck.

Shuck’s 2013 meritorious service award from the police department stemmed from a July 16, 2012 incident. The man he disarmed had a shotgun in his mouth. Shuck holds a Class A peace officer license with the state Peace Officer Standards and Training Commission.

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New. From ABC. It’s How to get away with murder!!!

I know! It’s like a documentary.

It’s no biggie that people see the inside of the onion for law students and criminal defense lawyers, because everybody already knows we’re the coolest cats around.  But giving away the true inner secrets of the Academy?  There’s going to be some ‘splaining to do. Continue reading →

That there hasn’t been huge interest in the trial and appeal of Raphael Golb remains a mystery to me.  Aside from Eugene Volokh and I, interest in the blawgosphere has been nearly non-existent, which is sad given that the case is fascinating.  The facts underlying the case are quite remarkable, and the legal implications of the case for the rest of the internet are huge. There was even a Streisand moment in the middle.

Yet, it hasn’t sparked the level of interest and debate that it should have.  Now that the New York Court of Appeals has decided Golb, we’ll live with the consequences.  The Court, in an opinion by Judge Sheila Abdus-Salaam, upheld Golb’s misdemeanor convictions for five 19 counts of criminal impersonation in the second degree, Penal Law §190.25, which to the unknowing eye would make it appear a win for the prosecution. But not so fast.

A New York County grand jury charged defendant with 51counts of identity theft, criminal impersonation, forgery, aggravated harassment and unauthorized use of a computer. He proceeded to a jury trial, where 31 counts were submitted for the jury’s consideration. The jury convicted on 30 counts: two counts of identity theft in the second degree; 14 counts of criminal impersonation in the second degree; 10 counts of forgery in the third degree; three counts of aggravated harassment in the second degree; and one count of unauthorized use of a computer.

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The ruling out of the European Union was stunning: all the arguing and haggling aside by those who thought it would require some sort of agreement and mechanism, Europe’s highest court held in Google v. Gonzales that there already was a right to be forgotten, and Google better shape up.

Whether this is the start of a great new day or the end of one is a matter of priorities, at least for the moment:

Jonathan Zittrain, a law and computer science professor at Harvard, said those who were determined to shape their online personas could in essence have veto power over what they wanted people to know.

“Some will see this as corrupting,” he said. “Others will see it as purifying. I think it’s a bad solution to a very real problem, which is that everything is now on our permanent records.”

The mantra has long been that the internet never forgets, and it is a very real problem. Continue reading →

What NBC Universal was thinking when it decided to not merely point to Teri Buhl, but attribute credibility to her, may never be known, now that dismiss of defamation claims against Buhl, and by extension, NBC, has been affirmed on appeal.  And it shows the vitality of the Safe Harbor provision, even in the face of such dubious conduct.

Wait. Teri Buhl?  This Teri Buhl?  Yup. That’s the one.  The Teri Buhl of “publish my twits and I’ll sue you” fame.  Because her twits are special.  After all, she is an “investigative journalist,” and it doesn’t get much cooler than that.  To be fair, not only did Buhl think well of her mad investigative journalist skillz, but NBC did too.

In December, 2011, and January, 2012, Teri Buhl published several online news articles containing defamatory statements about the plaintiff on her website. On January 6, 2012, John Carney, a senior editor for cnbc.com, published an online article entitled, ‘‘The Sex and Money Scandal Rocking Hedge Fund Land’’ on www.cnbc.com, a website owned and operated by the defendant. Carney’s article referred to Buhl as a ‘‘veteran financial reporter’’ who ‘‘knows her way around the Connecticut hedge fund beat,’’ and urged viewers to read Buhl’s articles by stating, ‘‘I don’t want to steal Buhl’s thunder, so click on her report for the big reveal.’’ The word ‘‘report’’ was a hyperlink to Buhl’s online articles containing the defamatory statements.

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Mike Riggs at FAMM sent over a link to the best blog on the interwebz for the loyal opposition, Crime & Consequences, where Bill Otis, government flack, announced a letter by former prosecutors to Senate majority and minority leaders admonishing them not to destroy America by passing the Smarter Sentencing Act.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking – not drug possession offenses – and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a
mandatory minimum sentence. Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved. Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player, and cooperates with federal authorities. This “safety valve,” as it’s known, has been in the law for almost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down drug conspiracies, large criminal organizations and violent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety. We have made great gains in reducing crime. Our current sentencing framework has kept us safe and should be preserved.

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Via Walter Olson at Overlawyered, the five year statute of limitations on the theft of money and cigarettes from Dominican bodega owners ran.  If only the thieves weren’t Philly cops.

TWO CRIMINAL investigators, part of an FBI-led task force, came to Juan Collado’s bodega in 2009 to hear his story.

Collado struggled to explain in English how a narcotics squad had barreled into his Tioga store, cut wires to his video-surveillance system and – once the cameras went dark – stole almost $10,000 and cartons of Marlboro Lights.

He asked them for a Spanish interpreter and they promised to return with one. They never did.

Now it’s too late.

People tend to hate statute of limitations stories, because the only time they’re mentioned is when something outrageous happens.  The rationale for their existence is not only sound, but critical.  Delay makes the difficult task of defending against accusations essentially impossible. Would you know, no less be able to prove, where you were at a specific time on a particular date years ago?  This is magnified if you were the wrong person, and had absolutely no reason in the world to note your whereabouts way back then. Continue reading →