In his on-going deconstruction of D. C. Magistrate Judge John Facciola’s order denying the government’s warrant to search all the emails of its target, Orin Kerr at WaPo Conspiracy takes the court’s Second Memorandum Opinion to task. The government lost again, for having done nothing more than switching some language from Exhibit A to B, cosmetic changes as the judge called it.

Judge Facciola’s new opinion reminds me of why I think it is necessary for such reasonableness issues to be litigated ex post in the context of adversarial litigation rather than announced ex ante in response to ex parte warrant applications. The reasonableness of executing the warrant is something that ordinarily would be analyzed ex post in the context of adversarial litigation.

In his first order, the judge strongly hinted that the better solution was to allow the keeper of the emails, in this case Apple, to search for the government, then turn over only those emails that were responsive to the government’s need for evidence. Or, the government could just knock down Apple’s door and raid the place, if the warrant is approved. Continue reading →

In breathtakingly short order, the Third Circuit has issued its decision in United States v. Andrew Auernheimer a/k/a Weev.  Weev won.  Tor Ekeland picked him up last night, just in time to audition for the next Hobbit movie.

And lest anyone think that the Weev has grown soft and contemplative in the can, his twits (no doubt by his friends in Weev’s name, since Weev was in prison at the time) show otherwise. Continue reading →

Yet again, marketing guru Seth Godin has managed to put into words one of the things that has long pissed me off but defied my ability to explain.

Lock in is what happens once you have a lot of followers on Twitter… it’s not easy to switch. Same with all social networks. And operating systems too–it takes a lot of hassle to walk away from iOS.

Once a company has achieved lock in, one way to grow is to appeal to those that haven’t been absorbed (yet), to change the product to make it appeal to people who need it to be simpler, dumber and less powerful, because (the company and its shareholders understand) the power of the network becomes ever more irresistible as it scales.

Forget, for a moment, that he uses Twitter as an example. It doesn’t matter. His point is that you create website/product/system A and it works. It gains traction. People like it, use it, enjoy it. Continue reading →

Following the tragic suicide of Rutgers student Tyler Clementi, the State of New Jersey did what so many advocates demand: pass a law. Deemed the “toughest” anti-bullying law in the nation, the applause could be heard loud and clear.  And as too often occurs, the zealous “do it for the children” folks knew that it would bring about a perfect world where no child’s feelings would ever be hurt again.

Lice.  Head lice, to be precise.

The Rutherford Institute is challenging New Jersey’s law because lice.  No child wants to be called a carrier of lice.  Except, maybe they are the carrier of lice.  From NJ.com:

John Whitehead, president of the Rutherford Institute, said the enforcement of the law is problematic. Schools should be safe, he said, but well-meaning statues “are Orwellian in nature and inevitably run afoul of the Constitution.”

“How far do you take this, especially with children,” he asked. “Free speech in some instances is hurtful.” Continue reading →

The New York Post, never shy when it comes to emotive headlines, spelled it out in a way that couldn’t help but make its readers’ blood boil at the ineffectiveness of the legal system to make sure the bad guys go down.

Judge tosses evidence in gun bust on warrant technicality

And if that’s not enough to make you wonder how law-abiding citizens can survive these crazy, criminal-loving judges, the story that follows will surely do the trick.

A Brooklyn federal judge has tossed critical evidence against a alleged crack-dealing Queens gang member busted with an assault rifle, throwing his case into turmoil, court records state.

Judge Jack Weinstein voided evidence against Shakeel “Blam” Wiggins last week because an NYPD cop didn’t properly fill out a search-warrant application that turned up the weapon as well as a handgun and a cocaine cache last September, court papers say.

The ruling will likely allow Wiggins, a prior felon, to walk. Continue reading →

Bob Ambrogi and J. Craig Williams did a Lawyer 2 Lawyer interview on Legal Talk Network with Lee Rowland of the ACLU and Marc Randazza on the propriety of using criminal laws to stop revenge porn.

In the second half, they bring Mary Anne Franks in to debate the issue.  It’s a fascinating juxtaposition of Appeal to Reason versus Appeal to Emotion. Guess who was on which side?

Best line of the broadcast was from Lee Rowland:  “Criminal law is a blunt instrument for regulating human dysfunction.”  As experience has taught us over and over.

Further, your affiant sayeth naught.

The peculiar case of Raphael Golb, and his sockpuppet defense of his father’s research on the dead sea scrolls has been the subject of a few posts already. And yet, oral argument before the New York Court of Appeals gives rise to another question worthy of note. It’s the case that keeps on giving.

Via Eugene Volokh at the WaPo Conspiracy (for as long as it remains public before hiding behind its paywall).

Here’s the quote from the transcript, or you can find it in the oral argument video:

JUDGE PIGOTT: So if … you get some college kid who write – – – who e-mails the girlfriend of his roommate saying, you know, he really is a useless person. Is that aggravated harassment with respect to the victim, boyfriend/roommate?

MR. RIVELLESE: Yes, because it’s got – – –

JUDGE PIGOTT: Really?

MR. RIVELLESE: It meets all the elements. It does not require that the person that you send the communication to is the same person that you intend to harass, annoy and alarm. It’s – – – Continue reading →

When I first read Gideon’s post at A Public Defender, it had the wrong smell, the wrong feel.  It was an awful story, about how a judge refused to remove a juror in a child rape case who made it as clear as possible that she was biased.  The point of the story was the efforts put in to create the appearance of rehabilitation.

The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?”  Juror 112 responded, “I would have to vote guilty.

The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.

“I don’t think I would be able to,” the juror replied.

The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”

Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.” Continue reading →

Cameras. Dash cams. Body Cams. The cure for police transparency, that protects and proves that the police conducted themselves properly, with the added benefit of providing a record of the defendant’s wrongdoing and statements. What’s not to like?

Apparently, enough that the Los Angeles Police Department found out that some of its officers screwed with their mandated cameras so that they wouldn’t work.

Los Angeles police officers tampered with voice recording equipment in dozens  of patrol cars in an effort to avoid being monitored while on duty, according to  records and interviews.

An inspection by Los  Angeles Police Department investigators found about half of the estimated 80  cars in one South L.A. patrol division were missing antennas, which help capture  what officers say in the field. The antennas in at least 10 more cars in nearby  divisions had also been removed. Continue reading →

Ace crime reporter Oren Yaniv broke the story of Jonathan Fleming’s release in the Daily News, reminding us yet again of the good fortune of not living in a state where executions are available.  After nearly a quarter century in prison for a murder he didn’t commit, Fleming is “elated.”

Brooklyn prosecutors are slated Tuesday to set free a man who spent more than two decades in prison — the latest in a spate of conviction reversals.

The murder conviction of Jonathan Fleming, 51, will be tossed following a reinvestigation of the August 1989 slaying that landed him in prison for over 24 years, the Daily News has learned.

In August, 1989, Darryl Rush was murdered in Williamsburg, Brooklyn.  Of this, there is no doubt. Continue reading →