Jay Wexler is a very funny guy. Always was, which is particularly surprising given his tenure at the Department of Justice, Office of Legal Counsel, before going rogue and joining the faculty at Boston University School of Law.  Even when he blogged at PrawfsBlawg, he was funny. I bet Dan Markel will never let that happen again.

Aside: I once had a day dream of the Bush Administration’s request for an opinion on the legality of torture landing on Jay’s desk instead of John Yoo’s, and the years since being made safer by a drunken Bacchanalia with marines and Al Qaeda, ultimately ending with an agreement that both prefer blond virgins to underpants bombs.

Dear Scott,

I think you will soon agree that this is the best book ever published.  Congratulations on getting to read it!

[Completely unreadable scrawled signature that appears to be “jarmulkar”]

Naturally, the day after my post about  removing an old post so that a person isn’t forever tainted by his worst experience,  Walter Olson twits about the European Commission being set to adopt “formal rules” to create a “right to be forgotten” on the internet.

From Adam Thierer at the Technology Liberation Front :

According to the BBC, the European Commission is apparently set to adopt formal rules guaranteeing a so-called “right to be forgotten” online.  As part of the Commission’s overhaul of the 1995 Data Protection Directive, this new regulation will mandate that, “people will be able to ask for data about them to be deleted and firms will have to comply unless there are ‘legitimate’ grounds to retain it,” the BBC reports.

While the concern underlying this initiative may be real, and indeed, may well be something to which any reasonable person is sympathetic, formalizing it into a Rule, creating a procedure which, by definition, must bear a consequence if it isn’t to be ignored, and putting the judgment into the hands of some well-meaning bureaucrat with a checklist in a basement office, will not improve the internet. 

Censorship, even when well intended, is censorship.  Theirer points out what is well-known to anyone paying reasonably close attention to the internet, that efforts to cleanse it of information don’t tend to work well.

Thus, for a “right to be forgotten” to work, a more formal and robust information control regime will need to be devised to censor the Net and make it “forget”about the digital footprints we left online. Will the DMCA’s “notice and takedown” model be applied? Beyond the chilling effect associated with dragnet takedowns of online information, it’s unlikely that approach will really work. Keep in mind, this isn’t as simple as just telling large social media operators to delete information on demand. The reality is, as computer scientist Ben Adida notes in his essay “(Your) Information Wants to be Free,” the same forces and factors that complicate other forms of information control, such a copyright and speech restrictions, also complicate the protection of facts about you. “[I]nformation replication doesn’t discriminate: your personal data, credit cards and medical problems alike, also want to be free. Keeping it secret is really, really hard,” Adida correctly notes.

What is not clear is whether Thierer appreciates the struggle this will cause over how “robust” the control regime should be.  When asking nicely doesn’t work, the next cries will be for monetary sanctions. When they don’t work, whether because the information replicates faster than echecks can be sent, incarceration will be required.  And so on.  When the European Commission can’t clean up the outlier colonies like the United States and the island of criminals, a Super Internet Police Force will be required to roam the planet in search of Somalian internet Pirates.

Of course, the offshore pirates will be a step ahead of any official effort to shut them up (or cost them money), while ordinary folks with a computer and a home address are easy game for regulators.  Once legislators in Kentucky realize there is airtime to be had by promoting the new, popular censorship, complete with a cool biblical quote like “turn the other cheek,” a wave of “right to be forgotten” laws will sweep fly-over land and crash against both coasts, east and left.

Perhaps our beloved and admired legal scholars will jump into the fray to lead the challenge against censorship?  Not likely, given that under the leadership of Danielle Citron, they’ve already staked their claim at the head of the censorship line, demanding the death of mean speech online under the guise of Cyber Civil Rights.  They adore free speech, as long as they can shut down anyone who says something they don’t like.

But, you ask with squinted eye, are you not an overbearing advocate of censorship yourself, arguing that the internet is not a truth-free zone? Ah, no.  Just as I’ve advocated for the exercise of restraint on our own part when it comes to perpetuating negative posting after the harm outweighs the need, I advocate that lawyers adhere to our own ethical constraints of honesty and integrity. 

The rule isn’t an internet rule, though the battles are now being fought on the web because that’s where the bad stuff is happening, but a rule for lawyers.  And I don’t advocate for the imposition of fines and imprisonment, or even disbarment, as employing speech to counter speech.  Bad actors are shamed in the same manner as the wrong they commit.

And what of Twitter, having just announced its intention to  censor twits in countries where the contents are illegal?

The effort underscores thorny issues for Internet companies as their websites become more global and interconnected among different countries, and as they must cooperate with diverse views on Internet content control. For websites like Twitter as well as social-networking site Facebook, this has meant being blocked in countries like China where controls are more aggressive.

While we may think of Twitter as merely a medium for our communications, it’s still a business enterprise concerned with survival and profit.  It’s easy to forget that it’s not our toy, but someone else’s enterprise.  We just supply the grist that keeps it running.  While using Twitter is our choice, censoring it is twitter’s, just as deleting comments here is mine rather than the commenter’s. 

It’s not internet censorship, but self-censorship, and the misguided sense of universal ownership interest in the medium distracts us from the reality that Twitter needs to do what Twitter needs to do.  We may not like it at all, and we have the absolute right not to ever twit again in protest to Twitter’s decision, but it remains Twitter’s decision.

In the early days of the internet, there was a fierce pride in keeping grocery clerk’s hands off.  There was no tolerance for outside regulation, and the denizens of the virtual world policed themselves, often with harsh attacks on those who failed to adhere to the etiquette or norms of the web.  Dishonesty was dealt with harshly. Idiocy was immediately called out.  It was the wild west, but there was no shortage of sheriffs to keep things in line. 

Of course, those Halcyon Days are over.  As n00bs came online, they didn’t understand the norms and felt  entitled to recreate the etiquette to suit their sensibilities.  Every day, thousands of new people hook their computer up, and immediately decide things need to change.  And they have and continue to change, but not sufficiently to meet the needs of the lowest common denominator.  That’s why the clamoring for rules began, and why the grocery clerks demand the void be filled. 

Soon, there will be a “right to be forgotten,” except by the government.  Then there will be a right to not have one’s feelings hurt.  Shortly thereafter, the rule will prohibit words of greater than three syllables, or posts that require thought.  And this will “fix” the internet, and the internet will be all better.

He was outrageous.  He was as offensive as anyone on the internet.  He was geeklawyer, a pseudonymous British barrister whose vulgar satirical view of the world reflected the incorrigible days of the blawgosphere, and later twitter. 

Via my dear pal  CharonQC comes the sad news of Geeklawyer’s passing. No, he didn’t die.  You see, he wasn’t real.  Geeklawyer was a fun persona that existed only to screw around with the prisses in the profession and online, the ones who would “harrumph” and “tsk” at the “undignified” behavior of the internet barbarians.  No one was more barbaric than GL, and no one enjoyed it more.

And now, the Grand Poobah of the British High Court of Royal Dignity has imposed the death penalty. 

Court News reports: “A barrister who called opposing lawyers ‘slimebags’ in a series of insulting tweets from court was today (Thurs) thrown out of the profession.  David Harris was wrongly acting for an internet piracy company he owned.

He bragged that ‘whoring and drinking’ would begin after he finished the trial and described an opposing lawyer as a ‘p***k.’….”

While someone may have outed him, and his real name is now readily available, I prefer to remain with Geeklawyer, the name by which I’ve known him for years, and the name that reflects the days before the blawgosphere was brought under control of the grocery clerks, who couldn’t bear the thought of people being outrageous and dismissing their laundry list of rules.

Charon’s post amply covers the stupidity of this, as does  GL’s explanation of why the collateral issue of the internet “piracy” claim is nonsense.  Please read them.

As for me, I mourn the internet that Geeklawyer represents, one where a lawyer could have some fun, write outrageous truths and lampoon the foibles of a profession, and not have to fear the prigs’ attack. 

We’re now deluged by the flawgers, the prissy, the insipid blowing kisses at one another in the hope that some crumb will fall on their plate, making lawyers appear as puny and pathetic as people believe them to be.  But there was a time when the internet, the blawgosphere, twitter, was bold enough to have someone like Geeklawyer ripping the balls off sacred cows at every chance.

Now they’ve killed him because they couldn’t bear the thought that he was right. 

The man behind Geeklawyer is very much alive, though very much disbarred.  My guess is that David Harris will find a way to make them regret this travesty, as he’s never lacked for guts or spirit.  At the same time, the vitality of the blawgosphere will never be the same.

So go out there today and write a post about how you’re a really special lawyer and clients should retain you right away.  There’s no Geeklawyer to scream that your baby is ugly.  Happy now?

Lee Pacchia of  Bloomberg Law interviews New York Times reporter David Segal, the guy whose feature articles caused more lawprofs to put fingers to keyboard than any other, not to mention spittle to screen.

There are things he says (and he’s written) that strike me as accurate, and things that strike me as just plain wrong, as interpreted from the outside without much of a grasp of the inner workings. 

One argument Segal makes, where he applies basic economics of supply and demand to the availability of reasonably priced legal services, seems particularly misguided, ignoring the costs (whether too high or not), both out of pocket as well as opportunity, that somehow have to be repaid.  As much as lawyers might want to put their services to use for the poor and downtrodden, they still have mouths to feed and debts to pay.
 
On the other hand, his point about “gold-standard” legal services being unnecessary for some of the services lawyers now provide is similar to the arguments I’ve made here.

The aspect of Segal’s argument that seems most significant is that the ABA, responsible for accrediting law schools, accepts no responsibility for any of this.  And, since Segal apparently doesn’t realize this, the ABA doesn’t speak for all lawyers.  Just saying.

Interesting stuff.

H/T Volokh Conspiracy

The crime charged is bank robbery, not ordinarily considered an impulse crime of the sort that can be easily understood as an aberrational act resulting from either momentary psycho-emotional overload or an altered state of reality.  People plan bank robberies. After thinking, they execute the plan.  It’s a very thoughtful crime.

After Feliz Vega, Jr., was arrested for bank robbery in Georgia, however, his lawyer announced a curious defense.  Vega was taking Paxil, and it was the drug that prevented Vega from distinguishing right from wrong.  Paxil, an SSRI antidepressant, is a very strong drug with a very long list of significant side effects, but it’s been prescribed since 1993 to millions of people, without any suggestion that it’s caused a rash of bank robberies.

Naturally, the defense was immediately ridiculed for laying blame on Paxil.

But Assistant District Attorney Hank Syms waved away any claims of “involuntary intoxication,” telling Superior Court Sheryl Jolly he would object to any witness testimony that did not directly reflect on Vega’s state of mind when he entered the Bank of America at 1740 Gordon Highway on July 30, 2010.

Syms said that about a third of clients that make guilty pleas in court say they are on some form of medication. But Syms said this is the first time he’s heard this medication defense because most attorneys know better than to try it.

“What we have with this charade about ‘Paxil made him do it’ is the opposite of taking responsibility,” Syms said.

The defense plans to call an expert at trial to show that the defendant lacked the capacity to form criminal intent.  Obviously, ADA Hank Syms thinks defense counsel Peter Johnson is a damn fool.

Without regard to the merit of the defense’s position that Paxil, a mind-altering drug, altered the defendant’s mind, or the legal significance of his taking Paxil (presumably with a prescription) on his mens rea, what’s striking about the prosecution’s reaction, not to mention the reaction of commenters to the story, is that this defense is just, well, stupid.

The defense’s theory is immediately reminiscent of the dreaded “twinkie defense,” offered on behalf of Dan White in the killing of San Francisco city supervisor Harvey Milk.  While it’s been largely misunderstood, as the defense was not that twinkies caused White to commit the crime, but rather was evidence of his changed behavior reflecting his depression, it’s managed to sour, in public perception, the idea that a person’s mental state can be altered by an external cause to impair the ability to distinguish right and wrong.  Syms’ characterization reflects how most people think.

The problem is that the knee-jerk dismissal of the defense is based on some ignorant “common sense” notion, which Syms is playing to the hilt.  To the extent we seek only those individuals who possess the mental state needed for guilt to be convicted, playing to ignorance undermines the validity of the system.  It does, however, help to get a conviction.

Maybe the Paxil defense is total nonsense, a facile attempt at excusing a deliberate act for which the defendant should be properly convicted.  Maybe Paxil altered the defendant’s state of consciousness such that he was disinhibited, incapable of the thought processes that would lead a person to recognize the wrongfulness of robbing a bank.  Not being anywhere near competent to draw a conclusion, I wouldn’t venture a guess.  But I similarly wouldn’t dismiss it out of hand.

The problem is that this isn’t the sort of thing that a group of nice folks, sitting in a bar, around a coffee table, or in a jury room, can figure out on their own.  They aren’t near competent to assess the impact of Paxil on this defendant either.  Yet that’s the basis of the prosecution’s dismissal of the defense, as well as the general attitude of those commenting on the story.

For example:

Since first approved in 1993, over 70 million prescriptions for Paxil have been filled.
Do we now need to worry that all 70 million users will drink booze, attempt to rob banks, elude police officers and crash into neighborhood fences? Kinda grasping at straws, aren’t you Peter Johnson??

And:

To paraphrase Geraldine…”The devil made him do it.”
And if you know who Geraldine is, you’re showing your age

Or:

Using that lame defense will probably get Mr. Johnson’s client the max based on his wasting the Judge’s time.

And of course:

And let the new excuses begin for committing crimes. Even three sheets in the wind, an honest person doesn’t commit armed robbery or any other crime while intoxicated with some exceptions made for dui’s/conduct issues. I certainly hope this man is convicted of his crime. Poor, poor, Paxil victims.

On the flip side, some commenters noted that there have been numerous cases in which drugs taken by the defendant was successful in showing diminished capacity, including the cases of  Christopher DeAngelo and former all-star pitcher Jeff Reardon.

It’s not an easy defense to prove, or an easy defense for a jury to accept.  There is a strong tendency to reject that which doesn’t fall within the common sphere of experience, much like the refusal of jurors to accept the notion that anyone would falsely confess.  But this isn’t about common experience, and the limits of a juror’s don’t define the parameters of other people’s lives. 

This is particularly true when the issue revolves around something like a serious drug such as Paxil, where those of lacking in the expertise necessary to appreciate what it can do to a person’s mental state have no business making off-the-cuff, simplistic assessments. 

More importantly, the prosecution’s effort to feed into this ignorance, to use prejudice under the guise of some “common sense” type argument to ridicule a defense that could very well be true, is outrageous.  Not that Hank Syms suggests he’s got the competence to assess the medical validity of the defense, but that in his ignorance, he’s amply qualified to encourage others to be as ignorant as him.  Fostering prejudice and ignorance may help to win convictions, but doesn’t do much to foster confidence in the legal system.

The defendant has a right to present a defense.  Hopefully the judge will be sufficiently enlightened, or at least immune from falling into the hole of ignorance that Syms is busy digging, and allow him to do so. Even if it flies in the face of ol’ Hank’s ridicule. 

When a defendant completes his sentence, he’s said to have paid his debt to society.  Well, that was what we used to say, anyway, before the days of registries and the perpetual underclass we’ve created to make sure that no one who has ever done anything wrong will get a chance.  For the children, you understand.

In the blawgosphere, however, criminal defense lawyers are occasionally given the opportunity to put their principles to the test.  Society at large may be unforgiving, but we argue otherwise.  And we have an opportunity to put our beliefs into action.

An email came in the other day requesting that I remove an old post about a case that named names.  It wasn’t a demand.  There was no claim of inaccuracy.  It was a simple request, couched in terms seeking understanding.  You see, the case against the person named in the post has long since been completed, and he’s moved on with his life.  Yet, his name on the interwebz brought up this unpleasant episode. He wanted to put it behind him, to not spend eternity perpetually haunted by it.

This was hardly the first time somebody wanted me to take down a post.  I’ve gotten many demands, often couched in threatening terms, by people claiming that what appeared here did terrible things to their reputation.  The most well-known of these is Rakofsky v. Internet.  A more playful demand came from faux internet cop, Jim Donahue, who was subsequently pinched for playing a cop in Broward County.  And then there was Mimi Coffey’s “do it for my children” demand. My response to all was “bite me.”  I don’t take kindly to threats.

The purpose of writing, aside from my internal interests, is to be informative while making a point.  There comes a time, however, when my point (not to mention my internal interests) are less important than the damage of being forever associated with the worst experience of one’s life on the internet.  The internet is forever, unless some intervening force makes it go away.  While a judge may impose a sentence of years, after which a defendant can emerge from the darkness of prison and breathe free air, the internet never forgets.

It took me mere seconds after reading the email to make a decision.  My post about the fellow was a good one, accurate and pointed.  It was extremely relevant to what we do, discussing the risks we take in the zealous performance of our duty, and the inherent conflicts between our role as attorney and the limits of the law on how far we could go in the protection of our clients.  It was a good post.

It was also a post that would certainly hurt the person named by reminding everyone who read it what had happened, and impair his ability to move forward in his life.  Who was I to sentence this person to perpetual infamy on the internet?  Who was I to deny him the ability to move on after he paid his dues?

The post was immediately removed.

While I had no hesitation in doing something that I believed was right, there is a nagging aspect to removing a post, that I am engaged in revisionist history.  What happened, happened.  What was there one day was disappeared with the press of a button, and no one who would come to see it will ever find it again.  If someone read it and, for whatever reason, wanted to read it again, there will be no explanation for why it no longer exists.

Journalists don’t take down their articles after a sufficient length of time elapses, so that the people named can go back to their lives without the story hanging over their heads.  We can go into archives from a century ago and still read about what some guy long dead did to some other guy similarly long dead.  While it’s hard to harm a dead person, what of their legacy?  Is it limited to the bad thing they did that got their name into the newspaper?  There likely won’t be much written about how they were nice to dogs and children.

Before the internet, one had to do some serious legwork to find old stories about people. Memories fade and yesterday’s news was replaced by today’s.  With search engines, everything is today’s news for most of us, lacking sufficient prominence to be replaced by media fascination with our every movement and utterance.  We tend to be characterized by our worst moment rather than our best, or even our most mundane.  It’s the unusual that gets reported, and the unusual that will live on Google in infamy.

Having written a great many posts, over a lengthy period of time, this issue has come to the forefront, testing my resolve that people who have paid their dues to society deserve to put their worst moments behind them and move forward.  Maybe I’m wrong to make posts that I once thought worthy of writing disappear because of this belief, but I made a decision and pressed the button.

As the blawgosphere, and the internet, matures, new questions arise about how we should handle the impact of what we do on others.  I’ve made my choice, at least this time.

According to the Feds, the East Haven police force is a “cancerous cadre,” proving yet again the limits of alliteration as a weapon against police misconduct.  The indictment filed, however, may prove more effective.  From the New York Times :

Following on the heels of a scathing Justice Department report in December that found the East Haven police had engaged in widespread “biased policing, unconstitutional searches and seizures, and the use of excessive force,” the indictment portrayed a harrowing picture of arbitrary justice for Hispanic residents.

“There is no place for excessive force in a police station or on the streets,” David B. Fein, the United States attorney for Connecticut, said in a news conference on Tuesday. “There is no place for false statements in police reports.”

“No person is above the law, and nobody — even a person arrested for a crime — is beneath its protection,” he added, saying there could be more arrests.

Strong words.  If the allegations are true, well-deserved words.  The government says that the graveyard shift of East Haven cops, called “Miller’s Boys” because the feds have long since learned that giving a name to any group of defendants makes it easier for the media to describe their wrongs and for the jury to think of them in gang-like terms, terrorized Latino immigrants. 

Can you imagine that this happened in Connecticut, forcing the feds to pull out every platitude in the book?

I apologize if I appear flip about what these cops are accused of doing to Latinos in East Haven, Connecticut. It’s not funny. Not in the least.  And if they’ve done what they’re accused of doing, and given the dynamics of federal indictments, it’s likely they did it, my hope is that they get nailed, and that they clean up their mess with extreme prejudice.

But the rhetoric of the United States Attorney made me think of sunnier climes. Like Maricopa County, Arizona, where a guy called Crazy Joe Arpaio remains in complete, unfettered power.  The  Arizona Republic has an editorial today entitled “Arpaio must end vengeful ‘sweeps’.”

The correspondence duel between Maricopa County Sheriff Joe Arpaio and U.S. Assistant Attorney General Thomas E. Perez of the Civil Rights Division is becoming a classic of the genre.

The latest entry, sent by Perez to Arpaio’s attorney on Jan. 17, appears to be the first communication that suggests a resolution regarding Arpaio’s legally dubious “sweeps” for illegal immigrants may be under way.

The original complaint, filed by Perez on Dec. 15, can be viewed as a 22-page artillery barrage of federal fury.

In East Haven, the feds indict police.  In Maricopa County, they send Crazy Joe a “22-page artillery barrage of federal fury.”  Ew, scary.  But Crazy Joe still sits in his office, directing his badged minions to do his bidding, and thinking of ways to tweak his enemies.

The sheriff’s Jan. 4 response was a tour de force of classic Arpaio defiance, chock-full of accusations of “political gamesmanship” and assurances the sheriff “will not cower at the threat of litigation.” Of course not. With the public paying the bills as always, why should he?

Why should he indeed? For all the great might of the United States government, sufficient to make the world cower, it can’t manage to do squat about one old man in Arizona.  The impotence is deafening.

Curiously, the most serious racial-profiling evidence against the sheriff isn’t anything produced by the Justice Department. Indeed, the feds have yet to release evidence backing up their sensational claims of Latino drivers being stopped “four to nine times” more often than others.

Don’t they know how to call a press conference in Arizona? Did they forget the way to the grand jury room?

For years, the nation has known about Crazy Joe Arpaio’s refusal to adhere to the rules constraining what wacky sheriffs are allowed to do, particularly to Latinos and anyone else whose skin is a shade darker than others, or name ends in a vowel (like his, ironically), or whose English isn’t up to snuff.  He does it with tanks and pink underwear. He crushes judges who question him and politicians who even think of being disagreeable. 

And yet, he still sits in his chair without the slightest concern of a knock on the door in the early morning hours.

Arpaio was the focus of a blawgosphere for a while, after his deputy, Adam Stoddard, decided it was his right to rifle through a defense lawyer’s file while she was speaking to the judge, and it was caught on video.  it was seen as a showdown, I went so far as to call Arpaio the lord of the flies, after the locals explained that we didn’t get it, the extent of control Arpaio wielded in Maricopa and the inability of anybody to stop him.  They had a point.

That was November, 2009 when all the Crazy Joe Arpaio hoopla happened.  As predicted, the blawgosphere lost interest and moved on to new horribles.  Nobody wants to write, or read, about Crazy Joe all the time. For years.  It’s the old SNL joke, that Generalissimo Francisco Franco is still dead.  Yet more than two years later, Crazy Joe is still in power and the federal government writes him nasty letters telling him he better change or else.  Or else what? They’ll send him another nasty letter?

It’s good and right that the federal government has stepped in and indicted cops gone wrong in East Haven, where their treatment of Latinos violates our Constitution, their civil rights, and every precept of what we demand of police officers. 

But that’s Connecticut, not Arizona.  We’re one nation, or so the pledge says.  We’re a nation of laws, not men, or so that platitude goes.  The feds have this huge hammer, big enough that it can crush pretty much anyone who tells them to go screw themselves.

So why is the federal government completely incapable, disgracefully impotent, to stop Crazy Joe? 

Despite the  heated  arguments surrounding the case of  Sebastien  Boucher and the government’s efforts to obtain his password to collect evidence of his possession of kiddie porn, we suffered Boucher-interruptus when Vermont Magistrate Judge Jerome J. Niedermeier’s decision never made it up to the Circuit. 

The good news is we have bad news to report.  Colorado District Court Judge Robert Blackburn has issued a decision in United States v. Fricosu, raising many of the same issues presented by Boucher.  The defendant’s home was searched pursuant to a warrant, and a computer seized which held encrypted files.  She decided to chat about it with her husband, who was in jail on a state charge, on a recorded line, giving the government a pretty clear conversation so show that this was her computer, that she knew it was encrypted and that it contained stuff she would prefer the government not know.

So, the government subpoenaed the defendant to produce an unencrypted version of the content of the computer. For good measure, they offered her immunity for doing so.

Fricosu moved to quash, arguing that the subpoena violated her Fifth Amendment privilege against self-incrimination, demanding a testimonial act of production by compelling her to acknowledge her control over the computer and its contents.  Mind you, the contents themselves are not protected, as evidence of a crime already searchable by virtue of the warrant for her home, but the contents, already in the prosecution’s hands, can’t be “interpreted” without the encryption key.  This is a geeky point, and of little legal significance, but I would hate for the geeks out there to castigate me for failure to acknowledge this detail.

Judge Blackburn found, under the preponderance of evidence standard, that there was no privilege left to protect.

There is little question here but that the government knows of the existence and location of the computer’s files. The fact that it does not know the specific content of any specific documents is not a barrier to production. (Citations omitted.)

Additionally, I find and conclude that the government has met its burden to show by a preponderance of the evidence that the Toshiba Satellite M305 laptop computer belongs to Ms. Fricosu, or, in the alternative, that she was its sole or primary user, who, in any event, can access the encrypted contents of that laptop computer. The uncontroverted evidence demonstrates that Ms. Fricosu acknowledged to Whatcott during their recorded phone conversation that she owned or had such a laptop computer, the contents of which were only accessible by entry of a password.

Moreover, the government has offered Ms. Fricosu immunity, precluding it from using her act of producing the unencrypted contents of the laptop computer against her.

The court held that it was a “foregone conclusion” that the computer was hers and she had the ability to access its contents, unencrypted, thereby dissipating her 5th Amendment privilege against compelling her to engage in the testimonial act of production.

As much as I hate the outcome, under the general principle that the prosecution should not be able to make the defendant do anything to contribute to her own conviction, the decision comports with existing precedent.  To prove my pain in this regard, I note that Orin Kerr at Volokh reached the same conclusion, and you know how much I hate to agree with Orin.

Though the decision is sound under existing law, it gnaws at me for two reasons.  First, the general sense that the prosecution should do its dirty work on its own, and no person should be compelled to contribute to their own demise.  It’s just unAmerican.

The second reason is that computers (and for that matter, iPads and iPhones and everything shiny object beginning with “i”) are analogized to common physical evidence, as has historically been the fodder of prosecutions.  They aren’t the same.  The contents of a computer may well hold the digitalized version of evidence, but it also holds essentially our entire thought process, a revelation into the workings of our mind as manifested in binary code.  The prosecution may be entitled to the evidence, but they aren’t entitled to our every thought.

It has long struck me that, if we’re constrained to understand technology by analogy, a computer is more like a diary than anything else, a sanctum for the ideas that reveal our lives.  No court would order a person to undergo a brain scan so that the prosecution could access their thoughts, assuming it could be done (and, if the growth of technology continues, may well be possible some day).  Yet they can achieve much of the same access via our computers. 

Much of the discussion to Orin’s post on Fricosu relates to whether the defendant can simply say “I forgot” when ordered to unencrypt the files. There are plenty of variations on this theme, discussion of the sanction imposable for her refusal to comply with the court’s order, and the aforementioned geeky argument that the government already has the evidence, just not the key needed to make it usable.  While these side issues may interest some, they fail to address the core problem, that most of us feel that our computers should be sacred, beyond the reach of the government.

A continuing theme here is that the law has failed miserably to address the fundamental changes that  technology has on society, behavior and privacy, and that reliance on precedent and analogy is leading us down a path where privacy will be little more than an arcane notion and a fond memory.  That Judge Blackburn’s decision is sound based on existing law does little to address the question of whether existing law is sufficiently sound to maintain our rights in light of changes in technology.

Unless the law comes to grips with this, we’re in trouble, and it’s rather difficult to imagine that there are many judges (Sotomayor possibly excepted) who has a sufficient grasp of technology or the will to break free of ancient precedent upon the realization that it just doesn’t apply well anymore.  In the meantime, Fricosu’s lawyer say they will appeal, and we may end up with a Circuit decision that won’t bode well for the contents of computers.  So much for Pretty Good Protection.

The first time the words appeared, it was in an amicus brief filed in Williams v. Illinois.  Criminal defense lawyers were, to be mild, giddy about it, and could barely contain their delight that New York County District Attorney Cyrus Vance put in writing that the foundations of so many convictions, eyewitness identifications and confessions, were unreliable.

The expectation was that we would never see these words again. Maybe it was a mistake.  Maybe it was an inartful argument.  But we held the words close to our breast because the notion that this would happen again was, well, more than any lawyer could expect.  We were wrong.

In an Op-ed in the New York Times, Cy Vance did it again.

No law enforcement tool is perfect, and, as with a fingerprint, a DNA match at a crime scene is an investigative tool, not proof positive of guilt. But DNA is by far the most reliable evidence we have today — more than eyewitness accounts, testimony and even confessions. And importantly, as we try to make our justice system more fair, DNA is truly color blind.

This paragraph concluded his argument in favor of collecting DNA from “every person convicted of a crime,” meaning from those convicted of misdemeanors now exempt from collection. He argues that in the case of Curtis Tucker, it would have prevented a crime from occurring by solving an open case years earlier.  One anecdote, of course, makes for a low rent argument, but people find concrete examples easier to grasp than theoretical explanations.

His proposal is relatively modest, given that others argue for the collection of DNA from every person arrested, rather than convicted.  Still, issues abound.

Crucially, DNA evidence does more than put criminals away; it also exonerates the innocent. One of my top goals as district attorney has been to avoid wrongful convictions. Having a tool like an all-crimes DNA databank at our disposal would go a long way toward helping us achieve that all-important goal of avoiding wrongful convictions.

Cy has a point, as we’ve learned from the excellent work of the Innocence Project.  It is most definitely a two-way street, with  prosecutors like John Bradley fighting to prevent the DNA testing that exonerated Michael Morton. 

Despite the truly remarkable benefits of DNA testing, some skeptics have questioned whether it is sufficiently regulated and reliable. This concern is understandable but unfounded. The collection of DNA is highly regulated in the eight state-of-the-art, accredited state labs that conduct criminal forensic analysis. Strict safeguards control the handling of DNA testing and results, including the storage of information by barcode and not name, with criminal penalties for those who violate these rules. When testing leads to a match in the databank, samples are retested at least once and often twice. To date in New York, we have never had a “false positive,” or the misidentification of DNA from one person as the DNA of another.

Just down the road apiece from Manhattan is Nassau County, where the  crime lab was shut down for rampant impropriety.  The local DA, Kathleen Rice was shocked (shocked!), having no clue that anything was amiss.  So it hasn’t happened to Cy yet? That doesn’t mean it can’t. Or won’t. All the official words designed to make us feel secure in the handling of DNA, up to and including “barcode,” will mean little should a scandal happen.  Scandals do happen.  Even in New York City.

Today, DNA is the magic bullet of forensic science, the evidence that changes everything.  Fingerprints once held that status, but we’ve since learned that this “investigative tool” was another bit of evidence that was converted into infallibility by junk science.  And we’ve learned that eyewitness identifications, which “everybody knows” is incontrovertible, are remarkably unreliable.  And confessions, which “nobody would ever give if they didn’t do the crime,” are barely worth the paper they’re written on.

Cy Vance is right about much of what he writes.  He’s right that people have been convicted for centuries on evidence that was universally embraced and yet unreliable.  He’s right that the myth of “common sense,” that jurors, witnesses and his assistants, will cling to the traditional, albeit unreliable, evidence as if it’s sacred. 

But he’s not right that nothing can go wrong. DNA proved Amanda Knox guilty, and was subsequently shown to be wrong.  Whenever people are involved, and people are always involved in the prosecution of crime, something will go wrong. That it hasn’t gone wrong yet in New York County doesn’t mean it won’t. And when it does, if it does, someone will blame pilot error.

The op-ed, however, makes one thing clear for now.  It was no accident, no fluke, that Cy Vance’s amicus brief acknowledged that the best traditional evidence ever, the stuff used to convict more defendants than anything else, is unreliable.  This time, it comes directly from Cy’s hand. This time, following on earlier commentary noting the significance of his statements, it was as deliberate as it gets. Cy Vance confirmed that eyewitness identifications and confessions are not reliable.  Cy Vance knew what he was saying, and he said it. Again.

And for that, I thank him.

In fairness, New York City has no shortage of nuts.  But then, that includes the NYPD, whose officers aren’t necessarily inclined to spend a great deal of time pondering whether someone stopped really is what he says he is or just left his tin foil hat behind that day.  That’s what Bellevue is there to do.

Via that bastion of journalistic accuracy and the occasional multi-sentence paragraph, the New York Post :

Shaun Day, 29, was on a two-week leave when cops harpooned him for running a red light at 12:30 a.m. at Second Avenue and East 26th Street.

When cops searched his pickup truck, they discovered a 9mm semiautomatic and three ammunition clips.

During the arrest, Day was rambling incoherently and harped that he was a SEAL — but had no proof for cops.

He claimed he was an elite commando with “top- secret clearance,” cops said.

What’s a cop to do? Bellevue, baby.  As it turns out, Shaun Day was a Navy Seal.  As it turns out, there is  no “proof for cops” that someone is a Navy Seal for good reason :

Many SEAL impostors offer tattoos as evidence that they are actually members of the US Navy’s SEAL Teams…It is perhaps appropriate to point out that the requirements of Operational Security (OPSEC) and Personal Security (PERSEC) are not well served if members of an elite military force like the SEALs are wearing the identifying emblem of their unit tattooed on their bodies. These are not the freewheeling days of wooden ships, canvas sails, and sailors wearing exotic tattoos from unheard-of ports in the primitive South Sea Islands. This is the 21st Century, and the modern Navy is a completely different entity. The popularity of tattoos is increasing, including the SEAL Trident emblem or variations on that theme, and more SEALs do have tattoos today than 30-40 years ago. Still, those tattoos are never offered as proof of SEAL training or SEAL duty. There is no tattoo which is either currently recognized or accepted as a means of identifying certain SEAL members.

Without any means of identifying oneself as a Seal, what would you expect of the NYPD?  I venture to guess that most of the people stopped by the NYPD have some story to tell, often that the person stopped is a lawyer and “do they know how important they are?”  It makes Bellevue seem a pretty reasonable choice.

But now that we’re past the cute part of the story, two issues remain untouched. First, what difference does it make that Shaun Day is a Navy Seal if he’s driving around Manhattan with a 9mm handgun in his pickup?  Unless he was on Navy Seal business, he’s subject to the same laws as anyone else in Manhattan, and those laws (whether properly or not) prohibit the unlicensed possession of a weapon.  There are plenty of guys in prison who can tell you that, many of whom only possessed it in self-defense.

More curiously, given that Day was stopped for running a red light, how exactly did the cops come to search his pickup and find the gun?  There is no suggestion that any reason to search existed, even under the amorphous “automobile exception,” for running a red light.  Give him a ticket and wish him well. 

While Shaun Day may be everything he claimed to be, the question remains why the NYPD conducted a search and, now that they know Day is a Seal, seems prepared to give him a free pass. Crazy.