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 →

When Judge Richard Kopf wrote about his warm feelings toward some former cops who joined the courthouse security detail after their first pension vested, I questioned whether he had considered the impact of his feelings on potential pro-law enforcement bias.  While he responded that he hadn’t, he felt that it did not influence him, and I have no reason to doubt it.

Another commenter to Judge Kopf’s post, a non-lawyer who writes an uber-conservative blog, gratuitously noted:

As to shg, his paranoia speaks for itself and needs no rejoinder.

Judge Kopf, who is kinder toward people who lack a basic grasp of what lawyers do, noted that it’s a lawyer’s job to learn what influences a judge.

Lawyers are preoccupied with the little things that might influence judges because that helps them persuade judges. Trial lawyers are the ultimate legal realists. Small, seemingly insignificant things, might provide the one insight into the judge’s thoughts that will enable the lawyer to move a judge from one side to another.

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A number of interesting questions/comments have been posed over the past few days about the Greenfield-Franks War, as Bruce Godfrey called it.  I responded by telling Bruce that there was no such war, at least on my part.  My fight is against laws that chill free speech and sweep in the innocent with the guilt due to their poor and overbroad wording.

This was just one of them, as there have been many others.  While criminalizing revenge porn may be Mary Anne Franks’ world, it’s just one more bad law in mine. What’s made this appear differently is her avoidance and deflection of issues by resorting to attacks and name calling.  She’s done this to everyone who has challenged her, Marc Randazza, Lee Rowland, Mark Bennett, Time Cushing, Mike Masnick and, of course, me.

I’ve been treated to particularly harsh attacks. When Sam Glover noted her cries that I’m a “pervert” at the Puddle, she responded on twitter to inform him of “the facts.” He suggested she leave a comment, but she refused: Continue reading →

Granted, the story about Occupy Wall Street protester Cecily McMillan’s trial is told through colored glasses, but no lawyer who tries criminal cases can’t empathize with how the lid gets clamped on the defense’s efforts while the prosecution is given free rein to engage in wild, rampant speculation.  We have a description about trial judges, that they give a good trial, which means that they let us try our case without interfering.  It’s the best we can hope for.

The flip side of a good trial is one where the prosecution’s absence of evidence becomes an excuse to allow the introduction of wild, baseless speculation to fill the gap where facts are supposed to be.  The less evidence, the greater the latitude provided the prosecution. It’s crazy, but that’s how it works.  If the same rules that applied to real evidence were applied to the absence of evidence, the prosecution would never be able to convict.  For some reason, the idea that the absence of evidence reflects the possibility that the defendant isn’t guilty eludes some judges.

In a fair trial, the jury must consider two full texts and answer a reading comprehension question: In this case, is there any reasonable doubt that McMillan intentionally assaulted a police officer for the purpose of preventing him from performing his duties? But when the jury convicted McMillan on May 5, they had really been given only one side of the story.

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The name Sam Trapp meant nothing to me, but then, I’m not familiar with lawyers in Jefferson City, Missouri or the Ozarks.  If given a choice and a free flight, chances are pretty good that I would pass. Just the word “Ozarks” scares me, as I hear banjo strumming in the background, followed by the squeal of a pig.  Forget that details. That’s where my head goes.

But I had to figure a criminal defense lawyer, even in the Ozarks, still had a basic appreciation of our function.  Based upon this assumption, I sent Sam an email last week asking if a comment, posted in his name and with a link back to his website, really reflected his thoughts.

The comment was to my post about how the Travis County, Texas, jail was recording privileged communications between defense counsel and their clients, then sending them over to the prosecution “by accident.”  To this outrageous story, the “Trapp Law” comment read: Continue reading →

Things hadn’t gone well for the Department of Justice with D.C. Mag. Judge John Facciola.  Denying cloud warrants based on ex ante concerns of unconstitutionality, despite what the government, and even an academic, saw as a mandate to sign off under Rule 41(D)(1), here was a magistrate who just wouldn’t get with the program.

Gripe and resubmit though they might, or seek mandamus under the All Writs Act as they could, the government decided instead to take a different path following in a great American tradition.  They went judge shopping west to seek their future.  West to Silicon Valley, home of Google and Cloud Servers, where they hoped to find a more tech savvy, and less constitutionally-bound, judge to sign their papers.

Instead, they parked their Conestoga wagon outside Magistrate Judge Paul Grewal’s courtroom.  As much as they scored on the tech savvy side, their chagrin must have known no bounds when they learned that even out west, magistrate judges were familiar with the Constitution.  In his opinion in In re: [REDACTED]@gmail.com (which will stand as a case name to be remembered, even though whoever actually has that email address will probably be a bit miffed), Judge Grewal refused to acquiesce to the east coaster’s demands. Continue reading →

Dan Hull asks, “is it just me?”

Year after year, the cult of customer/client service “trends” stridently in books, trade journals, company meetings and on the internet. Service gurus are multiplying. Everyone is writing, gushing and testifying about the importance of service, often implying that service is no problem to establish and maintain. Businesses in every industry are proclaiming in giddy, self-congratulatory tones that service is, and has been for the last fifty or so years, a “core value” and “touchstone” of their success.

And yet every year, the service that each of us experience on a daily basis in our own lives is getting worse and worse.

Empty, fuzzy rhetoric tells us how much they love us instead of actions showing us that they care.  They repeat, ad nauseum, their apologies for our inconvenience, though the failure to perform as promised, as we paid for, is no inconvenience.  And then ask if there is anything else they can do for us, despite the fact that the words “anything else” don’t apply when they’ve done nothing for us to begin with. Continue reading →

Less than a month ago, I wrote about fellow blogger Eric Turkewitz at the New York Personal Injury Law Blog  being sued by Dr. Michael Katz for having accurately written about the doc’s getting butt-smacked by Queens Supreme Court Justice Duane Hart.  The crux of the case was a video taken of Katz’s medical exam on behalf of the insurance company that didn’t want to pay.

The video was evidence used in the case before Justice Hart, and this piece of evidence in a New York courtroom was uploaded to YouTube, and embedded in my post.  As of yesterday, poof, it was gone.  No notice. No letter. No email. No, questions asked before it was gone.  YouTube disappeared it.

When I was alerted to this fact, I went to YouTube to see what happened. Hackers, perhaps? A brute force attack by anarcho-syndicalists bent on ridding the web of images of doctors?  Nope, the message on the vid was clear: YouTube removed it for violating “community standards.” Continue reading →