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 →

That there’s an epidemic of rape and sexual assault on campus is a given, because the White House says so, as do the advocates to end this plague, despite the absence of evidence except their anecdotes.  Perhaps they’re right, but it’s hard to say because the meaning of words used to describe offending conduct have become untethered from any definition.

Not to let lack of definitions or proof of a problem get in the way, the government is forcing the issue by ramming guidelines down the throats of colleges and universities to cure the problem that may or may not exist.  Colleges don’t appear to be resisting. And these changes in the view of sexual assault and rape appear to be filtering through to criminal law.

Two profs, Kathleen Bogle, teaching sociology and criminal justice (whatever that is) at LaSalle, and Anne Coughlin, a lawprof at UVA, apparently recognized the confusion wrought by an excess of passion and a dearth of reason and decided to fix the problem.  Their post at Slate is entitled The Missing Key to Fighting Sexual Assault on Campus, with the subtitle, Universities must make clear when having sex with a drunk person is a crime.  Continue reading →

Much as fragile feelings may be given what’s considered by some to be short shrift here, the similarly strongly held feelings of the most manly men are no better. Via Clark at Popehat:

A Blair County man said he was standing up for this American Indian heritage and expressing his beliefs when he hung an American flag upside down and spray painted it earlier this week…

“I was offended by it…” said Allegheny Township police Assistant Chief L.J. Berg. Berg said he took the flag down and charged Joshua Brubaker with desecration and insults to the American flag. “I removed it from the building, folded it properly and seized it as evidence,” said Berg…

And, of course, Assistant Police Chief Berg, in touch with his deep feelings of offensiveness, “charged Joshua Brubaker with desecration and insults to the American flag.”  Because, feelings. Continue reading →

It begins with a traumatic experience. The problem is that traumatic experiences, like every other feeling suffered by those who believe their sensitivities define the parameters of everyone else’s world, is a humpty dumpty phrase.  That’s a burden no one can meet, despite the most sincere words of UC Santa Barbara student Baily Loverin.

The demand is for “trigger warnings,” which is explained by the New York Times:

Should students about to read “The Great Gatsby” be forewarned about “a variety of scenes that reference gory, abusive and misogynistic violence,” as one Rutgers student proposed? Would any book that addresses racism — like “The Adventures of Huckleberry Finn” or “Things Fall Apart” — have to be preceded by a note of caution? Do sexual images from Greek mythology need to come with a viewer-beware label? Continue reading →

Siobhan Householder was told to wait in the room, so she did.  She was at the Summit County, Ohio, domestic relations court, waiting for a warrant to be vacated after missing a hearing, where she appeared of her own accord. No big deal, at first.

Sitting there with her purse, another bag and a plastic cup of soda, Householder took some Tylenol for a tooth infection while waiting.  All hell broke loose. Via Ohio.com:

After the deputy was there about two minutes, Householder said she took two Tylenol pills along with a sip of soda. She was taking a third when the deputy confronted her, she said.

“He said, ‘What are you taking?’ and I said, Tylenol,” she recalled. “And he said, ‘Spit it out’ and I said, ‘I can’t.’ I meant to say I can’t spit it out because I had already swallowed the other pills.

“But I didn’t even get that part out before he just yanked me up and threw me down on the ground and was trying to dig these pills out of mouth.

“And there was one [pill] in there and I couldn’t even get it out because he kept shoving his hand in my mouth and squeezing my face and pulling my hair at the same time.”

Wrestled to floor.

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Following on the heels of reason number 8, to learn that old white men are mean, stupid and just don’t get it, comes reason number 7 via USA Today.

[A]ccording to a study published by the Electronic Journal of Human Sexuality, nearly 70% of college students admit to having sent or received sexually suggestive text messages. Apps like Snapchat, make it easier than ever for students to share nude or partially nude images.

When one old white man went to college, students had sex. Lots of it. We also had cameras, but we didn’t necessarily take pictures of it.  I know, without pics, it didn’t happen, but that was a time where people had actual real life experiences, and had yet to realize they were supposed to share them with everyone they knew with visual proof. Continue reading →

In a letter to the editor at Newsday, a good question is asked about stop & frisk under new NYPD Commissioner Bill Bratton as opposed to stop & frisk under old Commissioner Ray Kelly:

According to the Newsday article “Kudos go to Kelly” [News, May 10], New York City Police Commissioner Bill Bratton says he is comfortable with the number of stop-and-frisk stops now.

The numbers in the article, however, make me wonder whether the NYPD is heading in the right direction: 14,261 stops in the first three months of 2014 led to arrests or summonses in 20 percent of the cases. That compares with 99,788 stops that led to arrests or summonses 10 percent of the time in the same period in 2013.

That means under Commissioner Ray Kelly, there were 9,979 “good” stops, versus 2,852 for the same period this year. Aren’t we safer with more good stops?

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Paul Alan Levy of Public Citizen fame is one of those lawyers I’ve long admired and, sometimes, envied. He gets to spend his days taking on good causes for no better reason than they’re good causes.  For those of us who need to earn a living, the romanticism of representing for no better reason than because it’s right is the stuff of dreams.  And thankfully, there are guys like Paul around to do what they do.

When Paul took on the cause of Jennifer Choi, who was sued by Phoenix auto repair shop ToyoMotors for being dissatisfied with them, he stood on high ground.

In mid-2009, Jennifer Choi posted a scathing Yelp review of a Phoenix repair shop called ToyoMotors, contending that her car was diagnosed as needing repairs that other shops assured her were unnecessary, and that its fees were excessive by comparison with its competitors.  Four years later, ToyoMotors went on the offensive.  It signed on with “Demand Force,” a digital marketing operation that elicits positive feedback from customers to spray around the Internet.  A look at ToyoMotors’ page on DemandForce reveals a feel-good version of Yelp, featuring a slew of positive reviews, the sort of web page we would see more often if the recent European Court of Justice decision, allowing people to purge the web of unfavorable information they would like to be forgotten, were to take hold in the United States.

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