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 →

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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