Discourse.net

SD Fla US Attorney's Office Circumventing Court Order

David O. Marcus writes in Southern District of Florida Blog: U.S. Attorney’s Office still keeping cooperation secret from public,

Although Chief Judge Moreno and the rest of the SDFLA court have made plea agreements public again by allowing them to be accessed by PACER, the government is still attempting to keep cooperation agreements secret and off-line.

A number of AUSAs and AFPDs have emailed me the new government policy when a defendant is cooperating: Just delete those sections* from the plea agreement and include them in a letter agreement, NOT FILED WITH THE COURT. This new policy certainly circumvents the spirit of making deals open to the public. From what I understand, the prosecutors ask the court to go over the cooperation letter agreement with the defendant, but then ask for the letter not to be filed in the court record. I suspect that most judges will not abide by this request, especially because technically the letter is a matter of public record if reviewed in open court — so why not file it…

I might add that the proprietor of the shop engaged in this behavior is about to become the Dean of a law school. I wonder if this is what they will teach in their Legal Profession course?

Should Prosecutors Hire Jury Consultants?

I don’t do criminal law, never have. But stuff like this makes me feel like an innocent, a babe in the woods.

Vanessa Blum’s article in the Sun-Sentinel, Liberty City Six: No verdict yet in the Liberty City Six terror trial, and the government has spent millions, reports that the government has just spent a fortune on three trials of what from here seem to be a relatively harmless bunch of garden-variety hoodlums whom an agent provocateur raised up into mock terrorist wannabes. But that’s not the shocking part, no, that is the sort of ordinary outrage one gradually builds up calluses for.

What’s amazing, at least to this innocent, is this:

Among the payments by federal prosecutors is $95,755.79 to Varinsky Associates, a California-based jury consulting firm.

Jury consultants are people who advise lawyers on what sort of jurors to pick in order to increase their chances of a favorable verdict; they may also give advice, based on focus groups or polling, on what sort of arguments are likely to work or to fail.

Jury consultant services utilize sociological and psychological research. [FN250] These services include both qualitative and quantitative jury research. [FN251] Qualitative jury research uses a limited number of surrogate jurors (typically, up to fifty) drawn from the relevant community. The research identifies these jurors’ reactions to evidence and arguments that can be presented in the future trial. After hearing the evidence and the arguments, the surrogate jurors will be divided into subgroups that will separately deliberate the verdict. This methodology singles out the most effective arguments and evidence along with the jurors’ profiling trends. [FN252] The jurors’ profiling trends are the sets of attitudes, experiences and beliefs that are favorable or, inversely, inimical to the client’s case. [FN253] Quantitative research focuses on a large pool of surrogate jurors (about 400), who respond to carefully designed questionnaires (“community attitude surveys”). [FN254] These responses identify attitudes, experiences and beliefs favorable and unfavorable to the client’s case. [FN255] This research strategy aims at developing dependable juror profiles. [FN256] It also identifies the “hot questions” that facilitate the jurors’ selection and de-selection during voir dire. [FN257]

— Uzi Segal & Alex Stein, Ambiguity Aversion And The Criminal Process, 81 Notre Dame L. Rev. 1495, 1548 (2006)

I repeat that this isn’t the sort of law I work on, and I look forward to correction by readers who live in the criminal justice trenches. But from over here on the civil side, I still think that jurors, and especially criminal juries, are ideally supposed to represent the community. (And yes, I’m aware that the reality departs from the ideal in multiple dimensions.) If the US Attorney’s office uses jury consultants to tell them how to select a prosecution-friendly jury, that would seem to me to be not just unsavory, but to raise some due process and right to jury trial issues.

But, I have to say that based on a cursory survey of the literature, it seems my instincts here may be misplaced: I’ve found half a dozen academic articles that just report on this phenomenon as if there is nothing odd or unsavory about it; if anything the drift is that the poor under-resourced prosecutors (the ones who just spent $5-10 million on the Liberty Six trials) need consultants to level the playing field.

I suppose if all the consultants are doing is helping the prosecution spin better then that doesn’t raise a constitutional question, although I still think that it is not a good use of public money. But if they are helping prosecutors identify pro-prosecution jurors, even by attitudinal rather then demographic factors, that seems to to me to take us yet another step away from the jury system we would wish for.

Some surely would say that the government is only responding to an arms race started by wealthy criminal defendants and, who knows, there may be something to that in some cases. But in this case the defendants are not wealthy. Has the public defender’s office got jury consultants too? If they do, couldn’t they make a non-aggression pact on the jury consultants and save us all some money?

(I’m reminded of the old joke about the judge who calls the plaintiff’s lawyer in a civil case into his chambers and says, “Fred, I wanted you to know that defense counsel have offered me $5,000 to rule in their favor. So how about you give me $5,000 too and we try this one on the merits?”)

The Case for the Hate Crimes Bill

The House passed the Local Law Enforcement Hate Crimes Prevention Act today yesterday. Supporters describe it as follows,

This bipartisan bill focuses on providing new resources to help state and local law enforcement agencies prevent and prosecute hate crimes. The current federal hate crimes law authorizes federal aid in cases of hate crimes committed because of a person’s race, color, religion, or national origin. This bill closes gaps in federal law to also help combat hate crimes committed because of a person’s gender, sexual orientation, gender identity, or disability.

As an abstract matter, I’m actually not a great fan of ‘Hate Crime’ legislation. I think in a perfect world we’d be a lot closer to strict liability than we currently are. While I’d make room for some mitigation defenses, I’d avoid most enhancements (including ‘during the commission of a felony’ type enhancements). The case for punishing all harms equally regardless of the nature of the motive is that the victim suffers equally.

But that’s also the strong case for the other side: the argument, and it’s a good one, is that in the case of a real hate crime the victim doesn’t suffer equally, but rather extra. Worse, other people in the community suffer disparately if they think there’s an extra chance of being targeted for whatever attribute is the object of hate. And that last point has more than enough truth to justify laws such as this one. (Note that in my opinion none of this argument applies with any force to ‘Hate Speech’ claims; however hurtful I see those in the main as protected First Amendment speech so long as words (without true threats) are the only thing involved.)

Having said all that, there’s something very stirring about the some of the supporters of this bill, enough to make one’s support less reluctant. Consider this Statement of Rep. Al Green,

I rise in support of the Declaration of Independence. All persons are created equal, endowed by their Creator with certain inalienable rights–among them, life, liberty, and the pursuit of happiness. Not some people, not people of a particular race, not people who just happen to be heterosexual. All persons are created equal. And for the record, I support the rights of gay people. Gay people have the same rights as any other Americans, and they have the right to pursue happiness. I support this, the Declaration of Independence speaks of it, and but for the Grace of God we all ought to realize, there go I.

Now the bill goes to the Senate, where it may face rough sledding.

This Looks Good

Rachel E. Barkow, Institutional Design And The Policing Of Prosecutors: Lessons From Administrative Law, 61 Stan. L. Rev. 869 (2009).

Federal prosecutors wield enormous power. They have the authority to make charging decisions, enter cooperation agreements, accept pleas, and often dictate sentences or sentencing ranges. There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion. As a result, in the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the 95% of cases that are not tried before a federal judge or jury. In a government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. They have the authority to take away liberty, yet they are often the final judges in their own cases. One need not be an expert in separation-of-powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Although scholars have made persuasive cases for greater external controls on prosecutors, these calls for reform are unrealistic in the current political climate. The solution must be sought elsewhere.

This Article looks within the prosecutor’s office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors’ offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. The problems posed by federal prosecutors’ combination of adjudicative and enforcement functions are the very same issues raised by the administrative state—and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions. Using this model from administrative law would not only be effective, it would also be more politically viable than the leading alternative proposals for curbing prosecutorial discretion.

Administrative law values are not inevitably good, but they are often good.

A Prosecutor's Prosecutor

Justice Building Blog reprints the farewell email of a legendary local prosecutor in ABE LAESER RETIRES.

Mr. Laeser started as an ASA in 1973. In that farewell email Mr. Laeser writes,

Many have asked me about a most memorable moment. There have been many extremely similar moments that I have taken most to heart. I have had one single request - one that mercifully I have never had to carry out; yet it meant the world to me, because it spoke truth in its loudest possible voice. Fellow prosecutors, officers, defense attorneys, and even judges had made one request. The gist of it was: “If my family member should ever be murdered, could you personally prosecute the case?” This is perhaps the only legacy that will stay in my mind forever. It means too much for me to ever forget.

A real compliment, if a somewhat grisly one…

Insert Alligator Joke Here

The Buzz, the St. Petersburg Times’s blog, reports on Bestiality, monkey husbands and Bullard. Oh my!

The act of bestiality is a step closer to becoming illegal in Florida now that a Senate committee voted to slap a third-degree felony charge on anyone who has sex with animals.

Florida is one of only 16 states that still permit bestiality — a fact that animal-rights activist and Sunrise Sen. Nan Rich learned to her horror when a Panhandle man three years ago was suspected of accidentally asphyxiating a family goat with which he was copulating.

“There’s a tremendous correlation between sexually deviant behavior and crimes against children and crimes against animals,” said Rich, a Sunrise Democrat. “This is long overdue. These are heinous crimes. And people belong in jail.”

But the Mossy Head man suspected of assaulting Meg the Goat was never charged, because law enforcement officials could never link him to the crime scene. The suspect was arrested in a separate goat-abducting months later, said Walton County Assistant State Attorney Walter Parker.

Rich’s proposal was amended to target only those who derived or helped others derive “sexual gratification” from an animal. The amendment specified that conventional dog-judging contests and animal-husbandry practices are permissible.

That last provision tripped up Miami Democratic Sen. Larcenia Bullard.

“People are taking these animals as their husbands? What’s husbandry?” she asked. Some senators stifled their laughter as Chairman Charlie Dean explained that husbandry it was the rearing and caring of animals.

Bullard didn’t get it.

There’s more where that came from…

You have to wonder about some of our local representatives some times. Actually, you have to wonder quite often about some of them.

Secret Taping in Florida 10th Judicial Circuit Courts

This very confusing article entitled More questions about court recordings indeed raises more questions than it answers. Piecing together the story between the official obfuscation and the uneven writing, what seems to have been going on is…

• Someone — we don’t know who — in the state court system in the 10th Judicial Circuit installed an official backup taping system in the Florida state courts. At present no one is willing to take the credit for this innovation.
• Signs were posted warning the public that taping was going on, but it is unclear if the signs referred to the primary system — which has “a blue indicator light [that] is apparent at the front of each courtroom” when it is on. More to the point, that appears to be what the public thought it meant.
• The court staff indicates judges were aware of the system and could ask for it to be turned off; they also are now suggesting that it was used more in criminal than civil cases. But if there were court orders regarding when taping should be on or off, they have yet to be produced; it’s likely that litigants were not informed one way or the other.
• The tapes are public records covered by Florida’s aggressive Sunshine Law — but the court staff are not responding very enthusiastically to record requests. They say they have to redact them first (I’m unclear as to how much redaction they are entitled to do).
• Although this is particularly unclear from the article , there is some implication that the tapes might have able to capture sounds over the whole courtroom, not just the front.
• Parties are concerned that private conversations with their lawyers may have been recorded.

Lots here that remains very murky. Florida is a two-party consent state for sound recording. Does putting up a sign in a court room suffice to get consent?

Judge Dismisses First Count of Kuehne Indictment

Southern District of Florida Blog, Judge Cooke grants Ben Kuehne’s motion to dismiss Count 1.

Full text of Judge Cooke’s opinion. Not my area of law, but it looks perfectly sensible to me.

Incidentally, I have yet to meet anyone who thinks this case should have been brought, or that the primary motive was anything other than terrorizing the local bar in order to dissuade them from taking big drug cases. Maybe the changeover in the Justice Department will be an occasion to dismiss it…although I’m not optimistic.

Imagine the Ineffective Assitance of Counsel Motions

Southern District of Florida Blog has a very disturbing item about the consequences of the Public Defender elections in Jacksonville.

…the newly elected PD, supported by the Fraternal Order of Police, fired all the top lawyers at the office.

…

[quoting News4 Jacksonville]

At least one of the attorneys told Channel 4 he believes the mass firings were a form of payback.

The firings came on the eighth anniversary of one of the office’s most notable legal triumphs. On Nov. 21, 2000, taxpayer-supported public defender lawyers proved that a Jacksonville teen, Brenton Butler, was not guilty of robbery and murder.

It may seem hard to see what we gain from having defense counsel for the impoverished elected, although it’s also easy to see how an appointed official could enact the same sort of abuses. The issues are many, including

• What ethical rules do or should constrain the newly elected PD? (Is this a bar issue?)
• What ethical, statutory, or constitutional rules give the employees in the Jacksonville PD’s office rights to protest their dismissal?
• What sort of claims will future clients have for ineffective assistance of counsel if they can show any sort of pattern or practice of avoiding certain types of arguments?

These are all potentially interesting questions, but I’m only going to address the issues on this list that I feel competent to speak about.

The constitutional lawyer in me wonders if the fired lawyers have claims under the Elrod v. Burns, 427 U.S. 347(1976) and Branti v. Finkel, 445 U.S. 507 (1980) line of cases.

As it happens, a very similar though has occurred to a lot of people in connection with the somewhat analagous US Attorney firings. Here’s how David C. Weiss summarized the state of the law in his recent Michigan Law Review note, Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U.S. Attorney Removals, 107 Mich. L. Rev. 317 (2008):

Public employees may challenge dismissals by claiming that the firing violated their First Amendment rights to free speech and association; however, that path is unavailable to USAs. The Supreme Court has held that a person cannot be forced to forfeit her First Amendment protections as a condition of public employment, [FN203] but the prohibition on encroachment of speech is not absolute. [FN204] Generally, if an employee fired for her speech can demonstrate that the speech at issue is a matter of “public concern,” [FN205] a court will engage in a balancing test between the interest of the fired employee and the employer-state in serving the public. [FN206] Despite the Court finding significant safeguards for employees in the First Amendment, [FN207] USAs do not enjoy such protection because they are “policymaking” employees. [FN208]

Neither can the USAs bring a due process claim based on a property interest in their positions. Property interests in employment are statutory— not constitutional—entitlements. [FN209] The Supreme Court has broadly interpreted “property” protection, [FN210] but if an employee’s status is provisional, untenured, or otherwise lacking a reasonable basis for an entitlement to her employment, an employee does not have a property interest in her employment. [FN211] Government employees who serve as at-will employees do not have a property interest in their continued employment, [FN212] and as presidential appointees …

Whether the fired PDs were “policymaking” under this test, I leave to others who know the PD’s office better. I would note, however, that the issue of whether a public employee has a constitutionally cognizable property interest in a job for purposes of triggering a Due Process Clause analysis isn’t quite as simple as the quote above makes it sound. In a series of decisions the Supreme Court has made it clear that the test is very unclear: it’s not simply what it says in the statute, but rather the whole enchilada of workplace rules and expectations. In one leading case, for example, an employee who served on a series of one-year contracts and was not rehired at the end of a year was held to have a cognizable interest in the job because everyone in the office understood and acted as if those contracts were always and routinely renewed.

Again, I don’t know what the facts are here, but there might be a claim if the employment relationship in the Jacksonville PD’s office fit that pattern.

As it happens, I have always been a doubter about the wisdom of courts automatically giving state employees outside the civil service system tenure rights akin to the civil service. I think the spoils system actually has something to recommend it that is often too quickly dismissed by judges: it promotes a valuable type of accountability. And by that I don’t mean primarily accountability among the employees who (Austrian economists might say) will be living in incentivising fear of job loss, but rather accountability of the elected head of the office who can’t hide behind civil service rules to disclaim personal responsibility for what the office does.

Stories like this one out of Jacksonville certainly put that predilection to the test. It is another example of a lesson we’ve been learning since at least the Nixon administration (but for which the current lot serves as a master class): that when the heads of offices are determined to undermine the mission of their office, it is very hard to stop them.

Update: More at law.com

More on the Cheney/Gonzales Indictment

Political Animal says the indictment is a result of fairly crass local politics, and thus suggests it isn’t serious stuff.

But you can decide for yourself, as I’ve just been sent a copy of the indictment. I haven’t had a chance to read it myself; comments very welcome.

Cheney and Gonzales Indicted...by Texas State Court

It seems that a South Texas grand jury has indicted Messers Cheney and Gonzales.

CNN, Cheney, Gonzales indicted for alleged prisoner abuse: Vice President Dick Cheney and former Attorney General Alberto Gonzales have been indicted on separate charges related to alleged prisoner abuse in federal detention centers, Willacy County, Texas, District Attorney Juan Angel Guerra told CNN Tuesday.

The indictment stems from Cheney’s investment in the Vanguard Group — an investment management company that reportedly has interests in the prison companies in charge of the detention centers, according to The Associated Press. It also charges Gonzales halted an investigation into abuse at the detention centers while he was attorney general.

You might think there are some federalism issues here. And there are. You might think there are some qualified/absolute immunity issues here, and there are. (Cf. In re Neagle, 135 U.S. 1 (1890) (creating federal officer immunity defense.)) But what you might not know is that there’s a federal removal statute that deals with state criminal prosecutions, 28 U.S.C. § 1442(a)(1):

§ 1442. Federal officers or agencies sued or prosecuted

(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

So step one will be a removal to the federal District Court.

Incidentally, the Supreme Court approved the constitutionality of criminal removal jurisdiction in Tennessee v. Davis, 100 U.S. 257 (1880), and discussed the modern statute in Mesa v. California, 489 U.S. 121 (1989), where the court concluded that “Federal officer removal under 28 U.S.C. § 1442(a) must be predicated upon averment of a federal defense.” (In other words, the defendant must be prepared to argue that acts underlying the charges were performed pursuant to his federal authority.)

Note that if the case is removed, state law continues to govern the substantive rules pertaining to the offense — but federal law supplies the procedural rules.

Some Things We Don't Throw the Book At

I missed this story from last week, but Dave Neiwert was on top of it, FBI Wanted Obama Plotters Charged, But A Rove Appointee Said No.

Isn’t this sort of, well, serious?

Judge Rules Florida Fee Statute Unconstitional As Applied

The Florida judiciary often gets a bad rap. And sometimes it seems like it deserves it. But we have a pretty good, sometimes very good, state Supreme Court, and there’s actually a lot of talent on the state bench. (I encountered this personally when I served on a state judicial committee staffed primarily by judges from all over the state.)

All this by way of preface to an opinion by Chief Judge Lee Haworth of Manatee County, which is a must-read for anyone interested in issues of indigent defense, the 6th Amendment, the Florida Constitution, the cruelty of Republican-dominated legislatures, or even basic due process.

The background goes like this: after selling the public on tax cuts, some as recently as the election a couple of months ago, and promising that there would be no cuts in anything (money grows on trees, right?), the Florida legislature is now in full panic mode. The schools are getting chopped. And so is everything else. About the first thing to go, even before the latest round of tax cuts I believe, was payments to lawyers for criminal defense work.

The Florida legislature decided that the most a lawyer should be paid for a non-capital case was $2500. No matter how many counts in the indictment. No matter how long the trial. They did make an exception for very extraordinary circumstances, where there were more than 20 prosecution witnesses, and the case took more than 75 hours: then the judge could double the fee. Only upon a finding that this payment would be “confiscatory” could the judge go above $5000, and even then for non-capital cases the maximum hourly fee available was $75/hour, well below the norm for the criminal bar. Plus, the fee determination would only be made at the end of trial — so the lawyer works only on spec without any idea what s/he’ll be paid, has to front all the expenses (none of which are refundable by the state), and has to wait to see how long the state bureaucracy will take to actually pay out — sometimes months.

The purpose of all this was to screw trial lawyers, and even more to screw defendants by creating an overwhelming financial incentive to either cop a pleas or do a lousy job of representation.

Pursuant to the bill the Florida so-called “Justice Administrative Commission” prepared a contract that private lawyers could sign to be compensated for court-appointed work. The terms of that offer are amazingly bad, and not surprisingly very few lawyers have been willing to agree to them. Indeed, a very large fraction of the lawyers who formerly listed themselves as willing to accept court appointments for indigent defendants removed themselves from the list.

As a result, when relatively tiny Manatee County faced a giant multi-party conspiracy case, the number of defendants exceeded the supply competent and available lawyers. And the pool of competent but unwilling local lawyers consisted of sole practitioners who couldn’t drop everything else to work for nothing and still make their mortgage. While it is accepted that courts can order an unwilling lawyer to represent the indigent, it is also settled law that you can’t require a lawyer to bankrupt himself to do so. Yet, to pay what it would take to represent the unrepresented parties would bust the caps in the Florida statute. (And also would require progress payments were the case to drag on.)

In a careful opinion Judge Haworth bit the bullet and declared the Florida fee law as unconstitutional as applied to the facts before him, and entered an order allowing a quite modest but not confiscatory fee of $110 per hour for the involuntarily appointed lawyer in this — for Manatee County — extraordinary case. The authority for this ruling is given as the Florida State Constitution, Article V, Section 1 (creating courts, and inherently empowering them) and Article II, Section 3 (separation of powers).

Rather than rely only the inherent power of the courts, I would have liked to see a citation to the Florida Bill of Rights, such as Article I, Section 2 (“All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty…”), Section 9 (“No person shall be deprived of life, liberty or property without due process of law…”), Section 16(a) (“In all criminal prosecutions the accused shall, … shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both…”), Section 21 (“Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”), but you can’t have everything. And Chief Judge Haworth can hardly be blamed for relying on the court’s inherent powers, since he was only following the lead set by the Florida Supreme Court in Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986).

I hope this starts a trend.

(Case spotted via Rumpole)

Prosecutors Persist in Retrying Liberty 6

Two mistrials due to deadlocked juries. Slim evidence. An unconvincing case. But the government won’t give up on the Liberty 7 —> 6. Details, such as they are, at Southern District of Florida Blog: Liberty City to be tried a third time.

I never thought the prosecution on the most serious charges should have been brought in the first place, so you’ll not be surprised to know I think this is a travesty of justice.

It couldn’t possibly have anything to do with the great fuss and froth this administration originally made about its giant terrorism bust, could it? Which turned out to be a bust.

There are very very few cases that deserve to be brought again after two mistrials due to deadlocked juries (as opposed to witness tampering, error, or something else). There is simply no way at all that this case is one of them.

The Trial of of Ben Kuehne and the Impending Radicalization of David Markus

Ordinarily calm and mild blogger David Markus editorializes in Southern District of Florida Blog: Sad day

Typically I try to blog objectively and just report what is occurring in our District.

Today I can’t do that because what happened this morning in magistrate court should not have happened.

Ben Kuehne, one of the pillars of this community, was indicted on money laundering charges. (read indictment here)

The government’s theory of prosceution is outrageous. According to Jay Weaver’s article:

Justice Department officials allege that Kuehne broke the law in 2002-03 when he vouched for millions paid by one-time Medellín drug lord Fabio Ochoa Vasquez to his high-profile trial attorney, Roy Black.

Kuehne’s research gave Black the confidence — in the form of legal opinion letters — to accept payments totaling $3.7 million in fees and $1.3 million in expenses from Ochoa, according to several sources. Kuehne earned a portion of the expense payments — $220,000 to $260,000 — from Black for vetting Ochoa’s payments.

**

Federal prosecutors face a formidable challenge in proving the case against Kuehne. They will have to prove that Kuehne knew Ochoa’s money came from the sale of family assets to drug-trafficking associates…

This means that Ben had to have knowingly and willfully lied to Roy when telling him that the fee was okay. But what motive would Ben have for doing this? The money certainly wasn’t enough to risk all of this. And Ben Kuehne of all people wouldn’t have done these things for a million dollars. He’s as ethical a person and lawyer as I know. I’ll comment a lot more on the charges once I’ve had a chance to digest the indictment which was unsealed this morning in mag court.

We all know the real reason for this prosecution — to discourage lawyers from taking these kinds of cases.

I went to court to support Ben. Half of the legal community was there to show their support. (He was released on a $250,000 personal surety bond.) Watching this unfold really stuck in my gut. I am still in disbelief. I actually had a case in the past with the lead prosecutor from DOJ. I went up to him to say hello and he exclaimed without prompting: “This is a wonderful day for the government.” The comment was unnecessary and it sickened me.

I walked away from him thinking just the opposite. This is a terrible day for our country. Ben will be acquitted. But at what cost to him? And our justice system? Now, more than ever, it’s critical to fight for our Constitution and our justice system.

In court, Ben commented to Magistrate Judge Brown: “since I am completely innocent of these charges, I am entering a plea of not guilty.” He is represented by John Nields and Jane Moscowitz.

The indictment alleges that Kuehne, along with a Columbian lawyer and a Columbian accountant, falsified various documents to hide the tainted origins of the money. In their spinning to the press, however, nameless government prosecutors say rather that he should have known — which is not what the statute charging him requires.

In the Ochoa case, sources familiar with the probe said both federal and Colombian investigators have traced the source of his family’s sales, determined the proceeds came from dirty money and that Kuehne should have uncovered it before he moved the money through trust accounts to Black. Under one money laundering statute, a lawyer cannot approve or accept legal fees from a client if the attorney knows the payments are from criminal proceeds such as drug trafficking. Congress, however, made an exemption for lawyers when there is uncertainty about the source of the proceeds — an exemption the Justice Department has never acknowledged.

You’d think if they had a better case, they’d say so. David Markus suggests that this prosecution — of a man known as a local ethics guru — is a shot across the bow of the criminal defense bar, a tactic designed to make everyone in town afraid to take big drug cases.

Assuming Kuehne is in fact innocent of knowingly aiding and abetting in the falsification of documents — and I agree with Markus that the wages of alleged sin seem low here — I can’t help but wonder if it’s not a twofer for the Bush Justice Department: a chance to do what Markus said, plus a way to ruin the career and reputation of a leading local Democrat. Kuehne, after all, was part of Vice President Al Gore’s legal team. Perhaps the partisan prosecution of Democratic office-holders is moving on to new pastures?

How long before the radicalization of David Markus? Or the rest of us?

Legal Issue in Next Year's Big Local Trial

Local court blogger ‘Rumpole’ spots an interesting legal issue in setting up the issues in the upcoming trial of the alleged killers of Sean Taylor. The alleged shooter is under 18, and thus cannot be subjected to the death penalty. The two alleged accomplices are subject to a potential death penalty under the felony murder rule:

First question: under the principle of proportionality, can the prosecution seek the death penalty for defendants who were not the shooter when they are precluded from seeking the death penalty for the shooter based on the shooter’s age?

Grand Jury Brooklyn: Due Process, from NYC to CIA

A Brooklyn grand jury has something to teach us about the rule of law — and about the CIA’s secret prisons and Guantanamo too.

The author of the essay that follows, John Sifton, is an attorney and private investigator, and the director of One World Research, an investigation firm specializing in human rights and public interest cases. He posted the essay that follows to a mailing list I belong to. I liked it and asked him if I could link to it, but it turned out that it hasn’t been published anywhere. John has graciously allowed me to publish it here for the first time.

---

Grand Jury Brooklyn: Due Process, from NYC to CIA

By John Sifton

A few months ago, in the waning days of summer, I experienced the privilege-and the banality-of serving on a criminal grand jury in Brooklyn.

For two weeks, sworn to secrecy, my fellow jurors and I heard indictments in a catalog of felony cases: murder, assault, sexual abuse, drug and weapon possession, robbery, larceny, and sundry other violations of the New York Penal Code. We listened to testimony from victims, witnesses, police officers, and alleged perpetrators and alibi-providers, and we deliberated on whether to issue indictments. It was an edifying ordeal.

My jury of 23 was a classic Brooklyn bevy: various ethnicities, ages, races, and backgrounds. Our group included subway train drivers, sanitation workers, teachers, and various others from across the socio-economic ladder (but gravitating toward the lower end). The core of the jury was comprised of women, 18 in total: eleven black, two white, two Hispanic (one old and one young), a Russian matriarch, a two young woman of East Asian and South Asian descent. The remaining five males included three black men (including the foreman), me (“the white guy”) and a very young Israeli with dual citizenship who had just finished military service guarding border posts on the West Bank. During the two weeks of service, some interesting and unexpected cliques formed.

How I came to sit on this jury was a matter of controversy to my friends and employers.

“You couldn’t get out of it?” friends asked. Colleagues were also incredulous. I am a human rights lawyer and a private investigator and I work on a lot of cases involving detainees at Guantanamo Bay or secret CIA prisons-facilities in which grand juries are not used. Few believed that prosecutors allowed me to serve. Others were amazed that I didn’t lie outright in order to avoid service, as others apparently have. (Various lies suggested: “I’m a Quaker, etc.” “I’m a vociferous racist; I just can’t be impartial,” and “I typically have to urinate every five to ten minutes.”)

The truth is, it isn’t easy to get out of grand jury service. Grand juries aren’t like trial juries. Unlike trial juries, there is no adversarial process, no judges and no lawyers for the defendants; the only officials present are Assistant District Attorneys (ADAs), who run the process with a subtle but steely fist. The ADAs aren’t as anxious about particular jurors as attorneys might be with trial juries. Unlike with a trial jury, votes are not as momentous, and a single juror is not as vital.

After all, grand juries do not decide guilt. Instead, they vote to indict people, and the voting need not be unanimous, nor do those who vote to indict need to be convinced beyond a reasonable doubt that the accused committed a crime. All that is needed for an indictment is that a majority of the jury, 12 out of 23, believe that it is reasonably likely that the person accused of a crime actually committed it, based on the evidence presented. Twelve Angry Men, it’s not. A single Henry Fonda character, or even a vacillating Hamlet, can’t screw up an indictment.

So there was little chance of escape. In the initial excusal process, wardens excuse non-working parents with children under five, doctors, non-English speakers, certain small business owners, and people with serious health problems. Others postpone their service temporarily, as I did on three previous occasions. But there are few hopes beyond this. Once you-the hapless citizen of Brooklyn-receive your summons, you’re snagged in a net from which extrication is impossible. If you’re a citizen, have a pulse, and live in Brooklyn, you’re going to be chosen. (And if you’re not chosen-say, because the juries that day are filled-they’ll call you back a few weeks later when they do need you.)

* * * * *
What happens on a Grand Jury? I am forbidden by law to write about the details, as jurors are sworn to secrecy about the cases presented. But to generalize permissibly, the process goes like this on any given day:

An ADA walks in, closes the door, and says, “Good morning ladies and gentlemen of the Grand Jury.” To which some of the chipper respond, “Good morning!”

The prosecutor then proceeds through a set of formalities: “Mr. Foreperson: is there a quorum present?” (The answer is always “Yes.” A quorum is 16 people, and the prosecutor doesn’t come into the room unless a quorum is there.)

“Let the record reflect that there is. Ladies and gentlemen of the grand jury, today I will be presenting you with evidence in the case of the People of New York vs. [the name of the perpetrator]… . At the conclusion of this case I hope to present you with charges for assault and related offenses [or homicide, reckless endangerment, sexual abuse, possession of a firearm, or some other offense]. I will now call Officer O’Sullivan.”

We would then hear from police officers, some of them undercover officers who looked, convincingly, like most of the criminal defendants. Often we heard from the victims too: bodega owners who were robbed, tenants who were accosted by landlords, old ladies whose purses were snatched-a parade of men and women who, for various economic, ethnic, or emotional reasons, had been shot, stabbed, punched, pushed down stairs, or hit over the head with heavy objects.

For some cases, a defendant might also take the stand, in his or her defense. The gist of their testimony: “It didn’t happen the way you think.” My fellow jurors appeared to be particularly swayed if defendants broke down and cried while testifying-if they did, we might return a dismissal of charges. It would be hard to cry on demand, if you were lying, we figured.

The proceedings were often uncomfortable. After testimony was given, the prosecutor would excuse a witness and then ask us whether we wanted to ask the witness any particular follow-up questions. (Jurors are not allowed to question witnesses directly.) Some jurors asked for important questions, for instance: “Can you ask Ms. Jones how far she was from Mr. Taylor when he handed the bag of powdery white substance to Mr. Jenkins?” But some jurors requested exceedingly irrelevant or simply improper questions, or even started deliberating with the district attorney still present: “So, what I want to know is, how can we trust this undercover police officer? How do we know he isn’t just trying to put this guy in jail? He has all those tattoos.” Or: “He just seems untrustworthy to me.” One juror seemed to fashion herself an amateur sleuth of some kind, and was a conspiracy theorist: she simply doubted anything and everything that anyone said.

During our breaks, we ended up talking a lot. We asked the train driver about working in the subway. (“Have you ever run anyone over?”) School teachers complained about the Board of Education. The Israeli kid, a modern Orthodox, answered dozens of questions from others about Judaism and Israel (“Why do those guys [Hasidim] wear furry hats?” and “How do bald people keep the thing [pointing to the yarmulke] on their head?”)

We also talked about local politics, gossip (intriguingly intricate critiques of Foxy Brown and the various girlfriends of 50 Cent), television shows, the war in Iraq, and other issues of our day (steroid use, polygamy). We cracked jokes and stared into space, and pondered society and the meaning of “due process of law.” I also dropped catalytic comments starting discussions about how our jury process compared to what terrorism suspects face in secret CIA detention facilities, or at Guantanamo Bay (more on this below).

* * * * *
The deliberations were even more painful. When the time came, the prosecutor would instruct us on the law, and then leave the room with the court reporter, and we would be left alone. After the foreman reviewed the charges, our discussion would begin.

Often the issue before us was whether a certain alleged crime, assault for instance, could also amount to a higher charge, such as aggravated assault. The issues were difficult-was the defendant attempting to kill the defendant, just hurt him, or was he defending himself? We would try to reason with each other, we argued, we even yelled at each other. There was a lot of machismo, especially among the women: “Don’t start with me sister! You don’t want me to go there!” That sort of thing.

Eventually we would vote, and issue indictments, or not. In many cases, we returned at least some indictments, if only because many of the cases were simple and the evidence direct. (One particular ADA, a tall and handsome black man with impeccable suits, had it so easy with the women that I started teasing some of them about it. One juror said, “I just can’t concentrate when that man is in the room. He is just too … hot. Hot!”)

But sometimes, ADAs stretched too far on their charges, and we called them out on it. For instance, during the first week, one ADA tried to make us indict three separate people in a specific crime, on identical charges (I can’t go into specifics about the particular crime, but it involved a specific person committing a particular crime against a specific person). Only one person actually committed the main criminal act, though the others could legally be charged if they intended to aid the primary actor. Since we heard no evidence that the other two did intend to aid the primary actor, we refused to indict the two who aided him (though we did indict the primary actor). Interestingly, after we dismissed the charges against the two non-primary actors, our mood was bashful, but we were proud. Most of the cases typically resulted in an indictment, and the process sometimes took on a factory assembly line resemblance. But in that case, instead of being steamrolled through the process, we’d actually done something to change the course of the proceedings. We meant something.

* * * * *
Which brings us to the existential issue-and to a discussion about secret CIA jails and Guantanamo Bay. Why was this jury convened? What was the purpose of this exercise-the State of New York gathering together 23 random citizens to decide whether the police and District Attorney’s office had gathered legally sufficient evidence to indict fellow human beings, and have them stand trial for their alleged crimes?

Well, it’s simple: the whole process is mandated by the U.S. Constitution and the Constitution of the State of New York. As the 5th Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… . nor [shall any person] be deprived of life, liberty, or property, without due process of law.” The same is applicable in New York under Article 1, Sec. 6 of the Constitution of New York. These provisions go back hundreds of years, even to New Amsterdam. They serve as basic guarantees at the center of our criminal justice system: namely, that the jailing of suspected criminals must be justified before an independent body representing the polity-a set of people representing society at large-and that the justification for detention must be part of an established process of law.

Of course, as we on the grand jury came to realize, it’s a busy system: Hearing cases, we came to appreciate the fact that all over Brooklyn, and all over the United States, literally every hour of every day, people are committing crimes.

Some of the crimes that are occurring in America are mundane: the drug dealer selling narcotics, the drunk driving a car. And some crimes are horrifying: a man selling pictures of his stepdaughter over the internet, or a group of white supremacists beating up a Sikh gas station attendant. And other crimes are very complex: A grafter setting up a string of bogus companies in various countries to launder money for criminals engaged in human trafficking, or even worse: a transnational radical armed group plotting and raising money to carry out violent attacks on civilian and military targets in the United States and abroad. As jurors, we came to see a sample of this sheer scope of criminality in the United States.

We also came to appreciate the scope of the system created to manage it. Americans rarely get to see, up close, the process in which our local, state, and federal governments take suspected perpetrators into custody and deprive them of their liberty, temporarily at first, while they are charged with a crime and processed, and then permanently if they are found by trial to have actually committed crimes. Of course, it’s a flawed process-a deeply flawed process that accentuates the inequalities of our society. Nevertheless, serving on a jury you are made to remember-by the ritual of the courtroom-that the process is still that: a process. And the contours of this process are defined by law and established practice (hence, the concept of due process). Moreover, this process is ultimately subject to checks and balances. The police, as prime detainers and deniers of liberty, are subject to review by the judiciary and the polity at large.

Yet, as one of my fellow jurors pointed out during a break: “There ain’t nothing like this for the guys at Guantanamo Bay.” Indeed, nor for terrorism suspects in secret CIA jails.

So, some of us came to ask ourselves-why not?

During breaks, I framed the question to some others: Why is the Bush administration so hostile to putting high value terrorism suspects into a regular criminal law system? Why couldn’t a jury just like us-our jury-handle it? If we, a predominately minority and female-dominated jury in Brooklyn, one of the most liberal places in the United States, voted to indict almost everyone presented to us, why would the Bush administration be so afraid of putting terrorism suspects in civilian court?

All of the administration’s arguments about Guantanamo and CIA prisons-about practicality, guarding classified intelligence gathering secrets, and security-all of these have analogies with the criminal law cases we heard on our grand jury.

As we came to understand, police worry about practicalities too, the secrecy around their undercover officers and informants, and the security of witnesses and juries. “The stakes” can’t be the issue either: ordinary criminals in the United States kill and injure far more people than terrorists.

I don’t mean to suggest we were a perfect jury. We were not. Some of the jurors among us struck me as hopelessly illogical. But at the end of the day, we made good decisions. It was fitting and proper that the State of New York and local government of Brooklyn trusted us to listen to secret information from police, and then deliberate and make important decisions about how to deal with criminal suspects.

Why the federal government can’t trust citizens to do the same with high level terrorism suspects-this, understandably, was a subject we never settled.

© 2007 John Sifton

Time to Ban Police Use of Tasers?

Amnesty International says,

Since June 2001, there have been more than 270 TASER-related deaths in the United States. AI is concerned that TASERs are being used as tools of routine force—rather than as weapons of last resort. Rigorous, independent, impartial study of their use and effects is urgently needed.

By all means let’s get the data. It’s possible that the people killed by tasers might have been shot to death by police limited to their traditional guns and truncheons. But I doubt it.

Not to mention the non-lethal abuses — like the 82-year-old Chicago woman tased when she refused to admit cops sent to check on her well-being.

Update: And how did I miss this? “The use of these weapons causes acute pain, constituting a form of torture,” the UN’s Committee against Torture said.

Update2: Digby has a video of a Utah Highway Patrolman tasing a motorist — and then apparently lying to his partner about having given the motorist a warning. Lawsuit to follow. (But, say Digby’s commentators, the real issues are pushy Taser salespeople and poor law enforcement training.)

Ethical Questions

Looking for some ethical questions? Look no further than Kaimipono Wenger, Reparations and Net Benefit which tries to deconstruct defenses based on claims (not always plausible) of accident benefit to the victim.

Or, for something superficially less grim, see James Grimmelmann, Is Gold Farming Mandatory? A Question in Applied Virtual World Ethics

Notes From the Trenches

I thought this prosecutor’s account of a jury trial was an excellent account of daily life in the trenches.

I wonder if we could work out some sort of law class based around lawyers’ accounts of their lives drawing from the so-called practical blawgosphere as much as books? Might teach quite a lot.

TigerDirect Security Illegally Detains a Customer

Standing up for your rights can be a pain. It certainly takes fortitude.

Thus, the events set out in TigerDirect Unlawfully Restrains And Verbally Abuses Customer For Not Submitting To Receipt-Showing Demands.

One little warning: whether a shop can demand you show a receipt to exit is most likely a question of state law — and yours might be different from his.

I once satisfied myself that Florida law does not allow a normal merchant to prevent me from exiting a shop with goods I’ve paid for, even if I choose not to show a receipt, so I don’t show receipts when asked to at TigerDirect or CompUSA. (As I’m not admitted to practice in Florida, you shouldn’t consider that legal advice.) And I’d note that I’m not sufficiently clear what the Florida law is for stores that don’t admit the general public — so I do show a receipt at Costco, which requires membership before you can shop there.

Why, one might ask, would anyone be a pain about stuff like this? Are we not sympathetic with merchants being stung by shoplifters, thieves whose actions just force higher prices on the rest of us? I am sympathetic: they have a very legitimate beef, but have chosen a bad way to deal with it.

As our good friends at the Canard Enchainé say about press freedom, La liberté de la presse ne s’use que quand on ne s’en sert pas (“Freedom of the press gets used up only when unused”), so too with other freedoms.

A Day in the Park in Didsbury

I am currently in East Didsbury. Didsbury is a little village which has been subsumed into greater Manchester and now falls just within the outer limits of the city. Long known as a home to academics from the nearby University of Manchester, in recent years Didsbury, or at least West Didsbury which is the other part of town, is also gradually becoming something of a fashionable home to media figures of various degrees of fame. The formerly sleepy village center has long enjoyed a first-class cheese shop, the Cheese Hamlet, but in recent years has also accumulated an increasing number of nice restaurants with a variety of Asian and Mediterranean cuisines.

On Saturday we walked a few blocks to a local park which was the setting for the annual village fair. In addition to rides for the kids, there were dozens of booths either raising funds for good causes (mostly local schools) or publicizing good causes (everything from local history to Amnesty International and helping Darfur). What particularly struck me, however, was the large sign on the booth that had the most prominent location by the entrance, “Free the Miami Five”.

The booth, it seems, belonged to the Cuba Solidarity Campaign, a group that sports three web sites, and which has gotten very worked up about the trial of five Cuban agents convicted in 2001 of conspiracy and being foreign agents. From what I recall of the trial — being here on a slow and expensive dial-up link I’m not going to look up the details (but invite commentators to do so) — there were valid questions about whether a Miami jury could give alleged Cuban agents a fair trial, or whether the trial should be moved elsewhere. And, if I recall, not all the judges who looked at the issue were of the same view. And although, from what I recall, the basic mechanics of the trial were fair, a reasonable person could question the decision as to the jury. In fact, my knee-jerk reaction — not knowing the facts of how the actual jury was selected, which I’m sure might change my mind — is that a change of venue to somewhere less reflexively anti-Castro might have been a pretty good idea to ensure the fairness of the jury pool.

What’s odd, though, is to pick on this case, of all the justice-related issues in the USA (much less the world), as the one to make an issue of in a park in East Didsbury. If I were going to try to get the good people of Didsbury worked up about a US justice issue, or a Cuba-related justice issue, I might start with Guantanamo. Somewhere not too far down the list we might have the treatment of political dissidents in Cuba itself. Or maybe the move in Florida to cut the pay of court-appointed defenders in order to save a buck and make sure that they can’t afford to mount much of a defense. The “Miami 5,” for all that there may be a question about the underlying fairness of the jury selection for their trial, would not be near the head of my list.

I have no idea to what extent the “Cuba Solidarity Campaign” represents something genuine among the British soft left, or to what extent it is funded by the Cuban government or whatever remains of the Communist International. Despite its location, their booth didn’t seem to be nearly as popular as the ones offering used books, or the various tombolas, or the one selling very good Indian snacks. Still, “Free the Miami 5” was a funny first thing to see at at the Didsbury fair.

Stuart Green on Perjury Prosecutions

My law school classmate and nice guy Stuart Green is the Louis B. Porterie Professor of Law at Louisiana State University and has written a book called Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime. The explains why he’s blogging at the OUPBlog on Sex, Lies, and Petroleum: Lord John Browne.

It’s a strange case: the CEO of BP resigned suddenly after it apparently emerged that he’d lied in court about his relationship with a male prostitute.

Assuming that he did lie under oath, Stuart’s conclusion is that the balance of factors suggests that Lord John Brown nevertheless should not be prosecutied for perjury.

Stuart’s argument seems to me to turn on two things, one overt and one not mentioned. Here’s the first turning point:

When asked whether he had had a sexual relationship with a 27-year old former male prostitute, Browne did what any 58-year old titan of industry would do: he lied. It seems unlikely that his perjury significantly hindered anything. As it happened, there was other, compelling evidence of Browne’s relationship with Chevalier, and it did not take long for the truth to come out. His perjury, therefore, did little to harm the judicial process.

Is that right? Browne did what any 58-year old titan of industry would do: he lied. And even if it is the case that standards of veracity among titans of industry are so low, or their reflex against admitting sexual shennanigans so well developed, must the legal system bow to it?

The second point, the one not mentioned, has to do with the identity of the perjurer. There is a strong argument that all, rich and poor, should be held to the same standard so that social position must not be a factor in the exercise of prosecutorial discretion. If fact, the Judge’s Oath taken in the US makes it clear that wealth (and presumably social position) are not to be factors considered in the provision of equal justice under law.

But there’s another view. Just as, as a practical matter, being a titan of industry gets you lots of advantages — deferenticaldeferential cops, a reservoir of credibility in court and so on, so too should those who abuse society’s trust be made examples to the others. Stuart’s analysis doesn’t seem to me to factor this in at all.

I guess I should read Stuart’s book to find out why…

Two Pieces of Very Good Legal News From Florida

He was once known as “Chain Gang Charlie” Crist for his tough law and order stands, but in the face of strong troglodyte opposition from Florida Attorney General Bill McCollum, Florida Governor Charlie Crist has pushed through a set of reforms to Flordia’s felon disenfranchisement rules. Now, instead of making it virtually impossible for felons to get their right to vote (and to hold state licensees for a wide variety of trades), it will merely be slow (15 years!) for non-violent offenders, and slow and difficult for violent offenders. This is a major issue as the state has almost a million persons who have been found guilty of felonies, and about half of them are black (although blacks are about 14% of our total population). That a Republican governor would do this, because it’s the right thing, is amazing. Florida still remains well behind states with more civilized penal policies, but this is a huge step in the right direction. Details at the Miami Herald, Felon rights on faster track.

Also in today’s news, a welcome and very powerful ruling by our Supreme Court. In Re: Amendments To Florida Rule Of Judicial Administration 2.420—Sealing Of Court Records And Dockets. (April 5, 2007) says in the strongest terms that state courts must not “superseal” civil cases in trial courts — ever. “Supersealing” was a procedure that removed any trace of a matter from the public docket, even its docket number and title. As the court notes, it was a set of practices “that, however unintentional, were clearly offensive to the spirit of laws and rules that ultimately rest on Florida’s well-established public policy of government in the sunshine.” The Court’s decision does not prevent the sealing of substantive civil case records in appropriate cases after appropriate process. Also, the issue of criminal and appellate cases is left for another day, pending study by the appropriate committees (in criminal cases there are additional issues relating to protecting informants, for example).

A great day for the State of Florida! (And if the last election were held today, I’d vote for Crist.)

[Bonus good news: Condo tenant wins fight to keep mezuzah.]

Smart Prosecution or Too Smart?

Justice Building Blog, has an interesting item today, SHOOTING FISH IN A BARREL. Here’s the nub of it,

The Feds are scanning the calendars and investigating cases where clients plead guilty to Carrying a Concealed Firearm, many times for Credit Time Served or a withhold and probation. The Feds are then, after the plea in state court, indicting the defendant for possession of a firearm by a convicted felon, where the penalty is a 15 year (or as they say in Fed land- 180 month) minimum mandatory prison sentence.

It’s kind of hard to defend a client in federal court to a charge he has already pled guilty to in State Court.

On the one hand, this isn’t technically double jeopardy as the law understands it (the federal offense has an additional element — being a felon — so it’s not the same offense, nor an included one). On the other hand, it probably is double jeopardy as the rest of the world understands it.

Rumpole proposes conditional pleas (or not pleading at all) as a workaround. One commentator suggests not carrying a gun if you are a convicted felon. Opinions as to whether the federal prosecutors are acting reasonably also seem divided. There is something about the surprise element of punishment for an offense that the offender could reasonably think is a closed and adjudicated matter which I find troubling. And I don’t much like the duplication of effort. But otherwise this is no worse jurisprudentially than a lot of stuff we accept for good reason, including federal prosecution of civil rights violations when states bobble the treatment of the underlying criminal prosecution.

Gonzales Tries the 'Pure Heart Empty Head' Defense

The law as a rule frowns on the ‘pure heart, empty head’ defense, which is how we lawyers refer to claims that “I meant well; I didn’t know it was wrong to borrow from the pension fund.”

Yet, amazingly, our Attorney General is now asserting a defense for the firings which is no more than that.

Gonzales: Firings were not improper Gonzales: What I can say is this: I know the reasons why I asked you — these United States attorneys to leave. And it — it was not for improper reasons. It was not to interfere with the public corruption case. It was not for partisan reasons.

…

[NBC’s Brian Pete] Williams: To put this question another way — if you didn’t review their performance during this process, then how can you be certain that they were fired for performance reasons?

Gonzales: I — I’ve given — I’ve given the answer to the question, Pete. I know — I know the reasons why I made the decision. Again, there’s nothing in the documents to support the allegation that there was anything improper here. And there is an internal — department review to answer that question, to reassure the — the American people that there was nothing improper that happened here.

Got that? I had no role in the decision, I just signed off on it. I don’t know how they came up with that list, but since I could never possibly have meant anything bad or partisan, and because I never had the brains to make any connection between the names on that list and high-profile Republican prosecutions, the public should give me credit for my pure heart regardless of whether there was anything in my brain.

Come on America. Leaving aside the rather dubious credibility of the claim that Gonzales is this clueless and dumb, can we afford an AG whose defense against charges of unethical and probably criminal activity is … blithering ignorance?

The Brits have a name for what Gonzales is claiming — “Nelsonian Knowledge,” based on the famous incident in which Admiral Nelson put a telescope to his blind eye so that he could say, “I see no ships signals”:

It is dishonest for a man deliberately to shut his eyes to facts which he would prefer not to know. If he does so, he is taken to have actual knowledge of the facts to which he shut his eyes. Such knowledge has been described as “Nelsonian knowledge”, meaning knowledge which is attributed to a person as a consequence of his “wilful blindness” or (as American lawyers describe it) “contrived ignorance”.
—Twinsectra Limited v Yardley and Others, [2002] UKHL 12, at para. 112.

All this aside, given Gonzales’s personal history as GWB’s legal valet, it’s hard to believe he lacked genuine, rather than merely Nelsonian, knowledge of what he was signing and why. Either way he doesn’t deserve to stay in office; I suppose, though, the difference might matter to a grand jury.

How Can We Tolerate This?

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread.”
— Anatole France

Well, not in Miami, baby.

In Miami, the law in its majestic stupidity and evil requires three poor people to sleep under a bridge.

Yes. Really.

The Miami New Times has the story:

Swept Under the Bridge — It’s 5:45 a.m. and still completely dark when a car pulls off NW Twelfth Avenue and makes its way silently through the complex of streets just south of the county criminal court. The car turns into the jury parking lot, otherwise completely empty. It creeps past the massive concrete pillars under the State Road 836 bridge, makes an abrupt turn, and stops. The door opens and a stocky, middle-aged man exits. He walks over to a pile of cardboard, bends down, picks up a flap, and peeps. Then he does the same to a pile of rags. Finally he re-enters his car and leaves. After a minute, the rags and cardboard begin to stir — three men stand up and begin packing their things.

The men are convicted sex offenders. The car, which visits every morning before dawn, belongs to Benito Casal, a state Department of Corrections (DOC) probation officer who enforces their 10:00 p.m. to 6:00 a.m. curfew. If they aren’t under the bridge between those hours, he will have them hunted down and arrested.

…

Court files, DOC documents, and probation case notes reveal that state authorities are not only aware the three sleep at the location just north of the Miami River — they sent them there. Unable or unwilling to find housing for the offenders as they left prison, probation officers Benito Casal, Kimilyn Cohen, and Robert Leiry began sending them to the bridge more than six months ago. Several circuit court judges may have known of the placement. Miami-Dade Police are aware of their location as well. Two of them list their address in the county’s sex crimes bureau database as NW Twelfth Avenue and Twelfth Street, and the third is incorrectly registered as living at his victim’s address.

…

The idea to stash offenders under the bridge seems to have originated within a county probation office; very possibly it was Casal himself who started the practice. On June 12, 2006, Casal’s notes indicate that he notified the court that “if the subject is released without a residence, I will have to place him under the bridge….” Sanchez would be sharing the location, the probation officer added, “with another sex offender that is residing there.” The other offender is not identified, and it’s unclear whether there were others before him.

On August 17, 2006, Casal ordered Sanchez under the bridge. But he wasn’t acting alone. According to his notes, he informed a probation officer named Ilzee Rabel, who works in Circuit Court Judge Diane Ward’s division, of his decision. Whether Ward herself was ever told is unclear. She didn’t return several phone calls or an e-mail seeking comment. But one thing is clear: By this past February 9 Casal had visited the site near the child abuse center at least 118 times to enforce Sanchez’s curfew.

That’s right: the government is requiring people — maybe people who are very not nice, but still people — to be homeless and to sleep under a bridge.

Repeat: the government is requiring people to be homeless and to sleep under a bridge.

It's Not Just Florida

I do make a certain amount of fun about the weird stuff that happens in South Florida, so it’s good to be reminded that equally weird stuff happens elsewhere, including deep in the heartland.

Take this story about John I. Rocko, B.A. in Criminology. According to the Toronto Blade, Police dog’s bachelor’s degree prods legal howling about chief, it seems that Mr. Rocko is in fact…a police dog. One with higher grades on his B.A. from mail-order degree mill Concordia University than his owner, Chief John McGuire of the Fostoria (Ohio) Police Department received:

While their courseloads were nearly identical, the dog received an A+ in “Structure and Process of the American Court System”; Chief McGuire got a B- in the same class, the transcripts show.

Who got Rocko the Police Dog a $499 B.A. isn’t clear, nor are all the legal issues in the case that gave rise to the revelation — they seem to center around the allegation that the Chief’s reliance on this dubious credential is one of several reasons why he was validly suspended at the time he purported to arrest the defendant.

Incidentally, a visit to the Concordia web site is enough to make you more than a little nervous. I was quite taken aback by this published testimonial:

Dear Sirs,

I am impressed and delighted with the results of my investment as I have just received my Bachelor of Science degree in Nuclear Science. The transcripts exceed my expectations, my employer recognized the entire course curriculum as almost identical to his own traditional college transcripts. His initial skepticism about distance learning schools immediately disappeared when he got to verify the copies of your governmental registration papers that were included in my credentials package. Your program must be the fulfilment of every professional’s dream. Thank you so much for this fantastic opportunity.

-Francis D.

I sure hope that’s a fake, for the idea of a nuclear engineer running some power plant out there on the basis of a mail-order degree is enough to keep you awake at night.

Sometimes Miami Law Is Just Like on TV

I like to tell prospective and incoming law students that real-life law is nothing like what you see on TV. But the trouble is, we live in Miami, a place where much more often than it should be real-life law is just as wacky as what you see on TV.

Take for example this account of the past five days in the annals of Miami Law:

(1) a murder trial in which the witnesses give credible evidence that detectives threatened them (including in one case threatening to take the witness’s kids into care) in order to get them to give perjured testimony incriminating the defendant — but the increasingly pathetic-looking Miami-Dade State Attorney’s Office says it has no intention of investigating whether the cops are bent;

(2) another murder case that lacked a body now features a lead detective who, on the witness stand, was made to admit to sleeping with a key witness.

(3) A local lawyer who runs a massive ticket-fixing business shot and killed an armed mugger by using the handgun he keeps in the glove compartment of his black Mercedes.

In other local traffic news, six-year-old girl foils carjacker by beating on him

“I smacked him on the head with my book”.

(4) Local Hollywood Police Chief James Scarberry blew a three-year-long FBI sting operation into corruption by officers on his force by blabbing about it to at other cops and local politicians. Not surprisingly, word quickly got out to the prime suspects who immediately tried to resign, stopping the investigation into their associates in its tracks and wasting a giant amount of police work. When first confronted about it the Chief told the press a series of lies, which he’s gradually been recanting.

(5) A prominent local builder was jailed yesterday, charged with embezzling public funds to buy a sculpture of a giant watermelon slice. He very vigorously contests the charges, and was photographed giving the finger to a reporter.

Local slice of life

(6) Cops arrest blogging photojournalist for taking crime scene photos.

(Post inspired by Justice Building Blog.)

Historians Make News!

Riveting Highlights from the 2007 Annual Meeting of the American Historical Association.

On Thursday, just after noon, the Tufts historian Felipe Fernandez-Armesto was arrested by Atlanta police as he crossed the middle of the street between the Hilton and Hyatt hotels. After being thrown on the ground and handcuffed, the former Oxford don was formally arrested, his hands cuffed behind his back. Several policemen pressed hard on his neck and chest, leaving the mild-mannered scholar, who's never gotten so much as a parking ticket, bruised and in pain. He was then taken to the city detention center along with other accused felons and thrown into a filthy jail cell filled with prisoners. He remained incarcerated for eight hours. Officials demanded bail of over a thousand dollars. To come up up with the money Fernandez-Armesto, the author of nineteen books, had to make an arrangement with a bail bondsman. In court even the prosecutors seemed embarrassed by the incident, which got out of hand when Fernandez-Armesto requested to see the policeman's identification (the policeman was wearing a bomber jacket; to Fernandez-Armesto, a foreigner unfamiliar with American culture, the officer did not look like an officer). The prosecutors asked the professor to plead nolo contendere. He refused, concerned that the stain on his record might put his green card status in jeopardy. Officials finally agreed to drop all charges. The judge expressed his approval. The professor says he has no plans to sue. But the AHA council is considering lodging a complaint with the city.

The interview with Prof. Fernandez-Armesto is at once hysterically funny and a cringe-making embarrassment to Atlanta,

Click here for Part 2. Click here for Part 3.


Oh yes--the AHA made some history at this meeting too:

At the annual Business Meeting, a proceeding usually featuring dry reports by the organization's leaders, the members approved an anti-war resolution, the first in the AHA's existence. The voice vote at the packed meeting was nearly unanimous. It was sponsored by Historians Against the War.

Is That a Razr in Your Pocket, or is the FBI Glad to See Me?

Be afraid.

FBI taps cell phone mic as eavesdropping tool. The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone's microphone and using it to eavesdrop on nearby conversations.

The technique is called a "roving bug," and was approved by top U.S. Department of Justice officials for use against members of a New York organized crime family who were wary of conventional surveillance techniques such as tailing a suspect or wiretapping him.

...

The surveillance technique came to light in an opinion published this week by U.S. District Judge Lewis Kaplan. He ruled that the "roving bug" was legal because federal wiretapping law is broad enough to permit eavesdropping even of conversations that take place near a suspect's cell phone.

Kaplan's opinion said that the eavesdropping technique "functioned whether the phone was powered on or off." Some handsets can't be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set.

...

It seems the bugging software can downloaded remotely, without the cops ever touching the phone. And once the handset's software is compromised, even pushing the "off" button won't stop it from acting as a bug.

The U.S. Commerce Department's security office warns that "a cellular telephone can be turned into a microphone and transmitter for the purpose of listening to conversations in the vicinity of the phone." An article in the Financial Times last year said mobile providers can "remotely install a piece of software on to any handset, without the owner's knowledge, which will activate the microphone even when its owner is not making a call."

Nextel and Samsung handsets and the Motorola Razr are especially vulnerable to software downloads that activate their microphones, said James Atkinson, a counter-surveillance consultant who has worked closely with government agencies. "They can be remotely accessed and made to transmit room audio all the time," he said. "You can do that without having physical access to the phone."

J. Edgar would have loved this one.

I wonder what the effects are on battery life, however: If my battery suddenly seems to die on me more quickly is that a sign I need a new one, or that I'm being bugged?

Memo to all lawyers: take the battery out of your cell phone when having sensitive conversations.

FBI Helped Frame Four Innocent Men (40 Years Ago)

Like a bad novel: Four Were Framed With The FBI's Help

When a flurry of gunshots ended Edward "Teddy" Deegan's misspent life more than 40 years ago, there should have been no mystery about who pulled the trigger.

FBI agents had been listening to the murder plot unfold for five months through a microphone hidden in a mob office and through reports from informants. They knew that Vincent "Jimmy" Flemmi and Joseph "The Animal" Barboza, two hoodlums the bureau was recruiting as informants, were behind the conspiracy.

But what should have been an open-and-shut case turned into a legal nightmare. Thousands of recently disclosed U.S. Justice Department records show that the FBI, in order to cultivate Flemmi and Barboza as informants, allowed them to frame four innocent men for the Deegan murder.

Armed with those newly obtained records, the framed men - or their estates - are now seeking more than $100 million in damages from the federal government, arguing that they spent decades in prison because of a morally bankrupt conspiracy between FBI agents and gangsters.

Of course, nothing like this could possibly happen today. No way. No how.

100,000 Stuffer Suckers

In an otherwise uninteresting 10th Circuit decision affirming the conviction of a Ponzi-schemer behind those 'get rich stuffing envelopes at home' ads that pop up in magazine classifieds, we learn the alarming statistic that more than 100,000 people believed -- or were desperate enough to make themselves believe -- that someone would pay them two or three dollars to put a one-page flyer in an envelope.

(Via Decision of the Day: The Truth About Envelope-Stuffing Jobs.)

In Which Judge Young Throws the Booker at Sentencing Law

Today Judge William G. Young issued a 125 page opinion in US v. Kandirakis that is going to be an instant classic in sentencing law, a subject much roiled by the Supreme Court's weird and fractured decision in United States v. Booker, 543 U.S. 220 (2005).

Basically, Judge Young holds that the entire system of federal sentencing is an illegal, unprincipled mess. Which it is. But can you say that? Apparently you can. Here's just a tiny taste from the text at footnote 41 of the opinion,

That our laws routinely require a defendant's sentence to be based upon what a judge believes an offender "really" did, as opposed to the actual crime of which he was convicted by the jury, is nothing less than offensive -- let alone unconstitutional.

Then the footnote:

A recent, appalling example is found in an unpublished, per curiam opinion of the Eighth Circuit. United States v. Rashaw, No. 05-1839, 2006 WL 688041 (8th Cir. Mar. 20, 2006). Rashaw had been convicted "on two counts of being a felon in possession of a firearm and of one count of possessing an unregistered firearm." Id. at *1. The district court in calculating the Guidelines, however, set the Guidelines offense level based on "evidence" that Rashaw had, in another incident and with another gun, committed a double murder. Rashaw had never been charged with these crimes, much less convicted. Id. The resulting Guidelines range being higher than the statutory maximum, the court sentenced Rashaw to three consecutive ten-year terms. Id. The Eighth Circuit affirmed this sentence as reasonable. Id. The disposition of Rashaw is scandalous and shameful. Justice Scalia, for the majority of the Supreme Court, had written in Blakely of an eerily similar hypothetical when making a reductio ad absurdum argument refuting "[t]hose who would reject Apprendi". Blakely, 542 U.S. at 306. That such an appalling result can be "reasonable" under Remedial Booker speaks volumes about the perversity of that decision in specific and of "real conduct" sentencing in general.

If you have any interest in sentencing policy, you need to read this one.

Secret Trials in Washington DC

18% of DC criminal trials are conducted in total secrecy.

"During the past five years, 469 cases in U.S. District Court in Washington, D.C., have been prosecuted and tried in complete secrecy, with no public knowledge even of the cases' existence and no way for the public to challenge the secrecy," write Kirsten B. Mitchell and Susan Burgess, reporters with the Reporters Committee for Freedom of the Press.

Burgess and Mitchell found the cases by "searching the court's entire civil and criminal docket for the past five years. During the five-year period ending Dec. 30, an average of 18 percent of nearly 3,000 criminal cases were not docketed in Washington's U.S. District Court — one of 94 federal courts nationwide. Undocketed civil cases were so few — 65 of more than 12,000 — as to be statistically insignificant."

The Burgess/Mitchell article said that “most off-the-docket criminal cases were kept off the public docket after prosecutors asked judges to seal the cases, according to those who handle such cases.

“While Justice Department guidelines recognize a strong presumption against closing criminal proceedings and outline limited reasons allowing for closure, they don't specifically address nonpublic docketing.

“Both the department's arguments for and the judge's approval of sealing an undocketed case are shielded from public view, making it impossible to know whether the guidelines are followed. What's more, the U.S. Attorney's Office in Washington does not monitor how many requests it makes to seal cases or how many requests are approved.

(Alex Kingsbury at Nieman Watchdog)

One more step down the road.

The Posada Carriles Case Flies Under the Radar

A reader writes:

Miami Herald reports (only in their Spanish language edition) on 1/4/2006 that Posada Carriles is perhaps soon to be released from detention by US Immigration, with no action taken by the Justice Department on the extradition requests by Venezuela.

There has been no known English-language coverage in the US!

One of the Venezuelan lawyers has commented publicly following the Herald's quiet report.

This isn't a case I've followed beyond reading the accounts in the local papers, so I'm afraid I don't feel very well informed about it. But given that there indeed don't seem to have been many reports about recent developments in the English language press (outside of the Cuban media, which doesn't really count for these purposes), it seemed worth mentioning.

Ricardo Bascuas Wins In Amicus Brief Filing Dispute

Speaking of the SFLA Blog, I see via it that one of my colleagues won one: Ricardo Bascuas prevailed over a peculiar, peevish, pettifogging, and petty attempt by local prosecutors to block two amicus briefs in the en banc phase of the so-called "Cuban Five" case. (The underlying issue is whether the defendants, accused of being Cuban spies, could get a fair trial in the surcharged anti-Castro atmosphere of Miami, especially after it was whipped up against them by massive pre-trial publicity; the collateral issue on which Rick prevailed was just whether National Lawyers Guild, the National Association of Criminal Defense Lawyers, the National Association of Federal Public Defenders and the Florida Association of Criminal Defense Lawyers would be allowed to file amicus briefs, something which is just about always routinely allowed for parties with the interest and energy to do so.)

More Illegality & Cover-up at the FBI

Not only did the FBI bungle a terrorism investigation and drive the whistle-blower out of the agency, but the FBI is unable to determine who among its staff falsified a report with correction fluid. Is this incompetence, or willful ignorance, and does either answer mean anything less than a thorough house-cleaning is in order? (I mean, wouldn't SOP be to polygraph the lot of them?)

Report Finds Cover-Up in an F.B.I. Terror Case - New York Times: Officials at the Federal Bureau of Investigation mishandled a Florida terror investigation, falsified documents in the case in an effort to cover repeated missteps and retaliated against an agent who first complained about the problems, Justice Department investigators have concluded.

In one instance, someone altered dates on three F.B.I. forms using correction fluid to conceal an apparent violation of federal wiretap law, according to a draft report of an investigation by the Justice Department inspector general's office obtained by The New York Times. But investigators were unable to determine who altered the documents.

A Real-Life Perry Mason Moment

I don't know how many people are initially attracted to a career in the law because of the mystique of the courtroom moment of truth, the largely fictional stock-in-trade of courtroom dramas and TV shows such as Perry Mason. I wasn't one of them myself (from the beginning I was 2/3 policy wonk at heart with a minor in deep theories of everything), but one meets lots of them in law schools (although far more among the students, who presumably go into trial law, than among the professoriate), and it's easy to understand the attraction.

Real life, of course, never serves up such moments. Never? Well, hardly ever...and when it does they can be quite beautiful: Snagging a Rogue Snitch - Los Angeles Times.

Condemned By the Company We Keep

Today's New York Times carries an excellent and harrowing account of a Chinese father's so-far-fruitless attempt to get Chinese justice for his son, now sentenced to life imprisonment, Desperate Search for Justice: One Man vs. China. The Chinese criminal judicial process is presented as an oriental version of Kafka: only limited rights for the defendant, and those are routinely ignored (e.g. right to see evidence, or to cross examine). In this case the father actually managed to win an appeal, but that just got the case sent down for re-trial, which again was a farce. And the second appeal was decided on political grounds -- it seems that the specially selected panel thought that public confidence in the state required a scapegoat for the ugly crime, and here was a convenient scapegoat...

So my first reaction was that here was an object, and abject, account of why the rule of law matters, and why it is so important to protect the criminal rights of defendants. As the Times noted, the Chinese system had a 99.7 percent conviction rate last year out of 770,947 adjudicated cases. The Times suggests that "Conviction rates are also high in the United States, especially in federal criminal cases." Indeed, "More than 90 percent of federal defendants plead guilty," usually taking a plea bargain to avoid a trial. Those who elect a trial fare better: for the most recent period for which I could find data [circa 1986-2000, source: Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone?, 83 Wash. U. L.Q. 151 (2005) (citing Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online tbl. 5.22)], "the average conviction rate for federal criminal defendants was 84% in jury trials, but a mere 55% in bench trials." These numbers are impressive when you figure that, in addition to the people determined to prove their innocence, a substantial subset of the people who go to trial are those whom the prosecutors think are so guilty that they offered little or nothing in the plea bargain.

Unfortunately, it seems that on balance the average Chinese criminal defendant gets a better deal than what this administration wants to offer persons it labels "enemy combatants" and ships off to Guantanamo.

On the basis of no evidence, I'm prepared to stipulate that the Guantanamo prisoners get better food -- at least when they are not on hunger strikes or attempting suicide due to years in solitary or near-solitary confinement.

There are several similarities, e.g. handpicked judges, beatings and other mistreatment of prisoners, life imprisonment (in China, post-trial, in Guantanamo includes pre-trial)

In other ways, the Chinese defendant gets, or at least can hope for, a better deal than under the "monsterous" procedures the US government offers alleged "enemy combatants" in Guantanamo: While it appears the Chinese rules often are not followed in practice, at least aspirationally they offer the hope of the following rights that the Bush administration does not want to see in Guantanamo: the right to know the charges against you, the right to know who your accusers are, the right to cross-examine prosecution witnesses (compare the facts of the Hamdan case), the right to call your own witnesses (compare the recent refusal to allow David Hicks to call expert witnesses), the right to proceedings in your own language or with competent translation, and (here we can blame the Senate too) the right to appeal the fundamental fairness of the proceeding. If nothing else, the railroaded Chinese defendants' families have visitations rights. Not even human rights groups get that in Guantanamo. [Incidentally, for a real double whammy, consider how badly the US government treats Chinese nationals held in Guantanamo whom even the US thinks are innocent of any crime.]

Is this the level to or below which we wish to sink?

Not in my name, please.

We Still Can't Trust The FBI

It seems clear from the FBI's own internal reports that the its agents have not changed enough since the Hoover days. And that's a great shame, and a big problem.

The FBI has important jobs to do -- perhaps, in the GW Bush world of growing numbers of people motivated to hate us, more important jobs than ever. But given the amount of power we entrust to the FBI, when its agents break the rules they become particularly dangerous.

We are not talking about the occasional minor paperwork snafu here: what we seem to be facing (again) is a pattern and practice of ignoring the rules.

FBI Papers Indicate Intelligence Violations: The FBI has conducted clandestine surveillance on some U.S. residents for as long as 18 months at a time without proper paperwork or oversight, according to previously classified documents to be released today.

Records turned over as part of a Freedom of Information Act lawsuit also indicate that the FBI has investigated hundreds of potential violations related to its use of secret surveillance operations, which have been stepped up dramatically since the Sept. 11, 2001, attacks but are largely hidden from public view.

In one case, FBI agents kept an unidentified target under surveillance for at least five years -- including more than 15 months without notifying Justice Department lawyers after the subject had moved from New York to Detroit. An FBI investigation concluded that the delay was a violation of Justice guidelines and prevented the department "from exercising its responsibility for oversight and approval of an ongoing foreign counterintelligence investigation of a U.S. person."

Kudos to my friends at EPIC for getting the goods. And kudos to the honest people in the FBI who didn't sweep these violations under the rug. The trouble is...given the extent of the violations we are now learning about, one has to wonder how many others never even got written up.

The documents provided to EPIC focus on 13 cases from 2002 to 2004 that were referred to the Intelligence Oversight Board, an arm of the President's Foreign Intelligence Advisory Board that is charged with examining violations of the laws and directives governing clandestine surveillance. Case numbers on the documents indicate that a minimum of 287 potential violations were identified by the FBI during those three years, but the actual number is certainly higher because the records are incomplete.

... in a letter to be sent today to the Senate Judiciary Committee, Sobel and other EPIC officials argue that the documents show how little Congress and the public know about the use of clandestine surveillance by the FBI and other agencies. The group advocates legislation requiring the attorney general to report violations to the Senate.

The documents, EPIC writes, "suggest that there may be at least thirteen instances of unlawful intelligence investigations that were never disclosed to Congress."

I'd write more, but I have a hurricane to cower from.

DeFede Won't Be Prosecuted

Via Southern District of Florida: No charges for DeFede, I learn that "it is now official -- the State won't charge Jim DeFede for taping Art Teele's last phone conversation." Assistant State Attorney Joseph Centorino, chief of the public corruption unit, went out of his way, however, to say this was an exercise of prosecutorial discretion on the grounds that no one had been hurt, and DeFede both had good intentions and was cooperative afterwards:

However, it would be incorrect for anyone to assume from this result that Mr. DeFede's actions, in tape recording a conversation without consent, were appropriate or justified. They were not. . . . It is the uniqueness of the tragic circumstances surrounding the death of Arthur Teele, and his last conversation with a trusted friend, which has led to the conclusion not to prosecute, rather any special journalistic privilege or legal exception accorded to Mr. DeFede.

(Not mentioned is that prosecutors are sometimes a bit shy of tangling with popular sympathetic journalists.) Although this doesn't prove that DeFede's actions were illegal, I think it supports my position in my debate with David Oscar Markus.

But the Herald remains adamant that DeFede is not getting his job back, more fools they.

Someone Knows The Answer to This Question About the Koso Statutory Rape Prosecution

Law professors tend to specialize. As a result, there are lots of legal things I don't know much about, and I try not to write about them. And there are lots of legal things I think I know something about, but I usually feel I don't know them well enough to opine publicly. And on those few subjects I think I know best, I tend to want to write fairly long and detailed articles, not blog posts. As a consequence, I don't tend to post legal (as opposed to political) commentary on this blog. The major exception so far has been the torture issue, which so offended me that I studied up on it to the point where I felt able to write about it, even though I don't currently have plans to publish on it in law journals.

But here's an exception to my rule, this time on a subject I know I don't know well: family law (and its criminal law counterpart). It's just that I'm curious about it.

The New York Times ran a story yesterday about a statutory rape charge being filed in Nebraska against one Matthew Koso, who is part of a couple (he: age 22, she: age 14) legally married in Kansas. The article doesn't mention the constitutional implications at all, nor it seems does much of the blog commentary, and I'd like to know why. (Just keep in mind as you read this that I'm prepared to be told that any of the following assertions is wrong.)

I would have thought that it was settled that under the privacy jurisprudence in the Griswold line of cases (striking down a state rule banning sales of contraceptives to married persons) no state could criminalize sex between consenting married adults, even due to their ages. I presume therefore that Nebraska law doesn't recognize the validity of the Kansas marriage, but I would have thought that this failure to recognize would violate the full faith and credit clause of the constitution:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

In the so-called "Defense of Marriage Act" Congress purported to exercise its authority under the Full Faith and Credit Clause...to allow states to deny any credit to out-of-state marriages between same-sex couples. But--even assuming that this statute conforms to the Full Faith and Credit Clause (I'm dubious)--it's clear that the DOMA doesn't apply here. So what is Nebraska's authority for denying the validity of the Kansas marriage? Is it 'public policy'? Can that suffice to void a constitutionally protected relationship? Or is it some idea that minors don't have the same constitutional right to marry as adults, and this trumps the adult's right not to be prosecuted for marital sex?

I'm presume there's some good reason why the couple's defenders, including their lawyer, are not making these constitutional arguments. Alternately, they might be making them but it's not getting reported. Or, perhaps the prosecution iis to be based on a res ipsa loquitor claim regarding pre-marital sex?

Like I said, family law is not my field, and the facts are not utterly clear here, but I bet someone reading this either knows the answer or knows where it can be found.

DeFede: Just a Misdemeanor?

David Markus has been kind enough to agree to debate the DeFede case. He puts his case at the Southern District of Florida Blog and concludes that DeFede didn't commit a felony, and in fact isn't guilty of much.

Having thought about it some more, I still have little doubt that, as I said yesterday, DeFede committed an understandable, but nonetheless actual, violation of Florida law when he taped Art Teele's telephone call. Having read David Markus's contrary view, I'm willing to admit, though, that there is an argument that the offense may be just a misdemeanor, not a felony. (In which case the Herald's firing makes even less sense.) Unfortunately, it's not as wonderful an argument as one might wish.

Mr. Markus, thinking like a good lawyer, argues that the state wouldn't be able to prove three essential elements of a felony charge:

1. DeFede recorded Teele's calls, without Teele's consent.
2. DeFede did so for an illegal purpose or for commercial gain.
3. Teele had a reasonable expectation of privacy in the call.

(Note that what the state can prove beyond reasonable doubt, and what we as observers are entitled to believe is likely are not, and should not be, the same things; I was talking about the latter--Mr. Markus has quietly and understandably tried to move the goal posts.)

On the first point, I think DeFede's own admissions make the case against him: it's legal to tape with two-party consent; it's also not against the policy of any newspaper I ever heard of. If in a hypothetical (and unlikely) prosecution, DeFede were to take the Fifth, as he'd have every right to do, I bet that any prosecutor could invoke a hearsay exception (ordinary course of business? admission against interest?) to get DeFede's confession to his bosses into evidence.

The second point goes to whether it's a felony or a misdemeanor -- I'll return to that below.

The third point is, I think, completely unpersuasive: in Florida we all have a legitimate expectation that our calls won't be taped unless we consent. That's the law. Even when talking to reporters. I grant you that not having Teele to put on the stand might make it harder for a prosecutor -- which is one of may reasons why I'd doubt this ever goes trial. But I wasn't arguing whether DeFede would get a record: I was discussing whether he broke the law.

That leads me to David Markus's best argument: that DeFede only committed a misdemeanor at worst. Here he may have a point since the statue is more obscure than it should be.

Section 934.03(4)(a) states that, "Except as provided in paragraph (b), whoever violates subsection (1) is guilty of a felony of the third degree." [And the relevant part of subsection (1) makes one who "Intentionally intercepts, endeavors to intercept, ... any wire, oral, or electronic communication" a felon.] So it at all turns on the first exception in 934.03(4)(b):

If the offense is a first offense under paragraph (a) and is not for any tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense under paragraph (a) was committed is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then:

1. If the communication is not the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication, or a paging service communication, and the conduct is not that described in subparagraph (2)(h)7., the person committing the offense is guilty of a misdemeanor of the first degree,

This is hard to parse, but a logic diagram may help:

IF

(1) [First offense] AND [Not for tortious or illegal purpose] AND [Not for purposes of direct or indirect commercial advantage or private commercial gain]
AND
(2) the wire or electronic communication ... is a radio communication that is not scrambled or encrypted etc

THEN
(3) IF communication is not

(3a) the radio portion of a cellular telephone communication,
OR
(3b) a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit,
OR
(3c) a public land mobile radio service communication, or a paging service communication,

THEN
(4) the person committing the offense is guilty of a misdemeanor of the first degree.

I agree that DeFede's act meets the test in (1). And it also clearly doesn't meet any of the conditions in (3a), (3b) or (3c), so (3) is satisfied. The problem is, I think, that it's pretty clear that we don't even entertain the questions in (3) unless we first satisfy the condition in (2). And here there's a problem. As I read it, (2) is satisfied if and only if the wire communication is an unscrambled "radio communication".

Unscrambled it surely was, but is a telephone call a "radio communication" under section 934? Mr. Markus apparently believes that it is. Alas, on balance, I don't think so. "Radio communication" is not defined in the statutory definitions, but "wire communication" is defined in 934.02(1) as

any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception including the use of such connection in a switching station furnished or operated by any person engaged in providing or operating such facilities for the transmission of intrastate, interstate, or foreign communications or communications affecting intrastate, interstate, or foreign commerce.

That definition pretty clearly includes a telephone call. Bereft of statutory assistance, we must rely on the ordinary meanings of the word "radio". And try as I might, I can't seem to get "radio communication" to mean "telephone call" -- especially given the definition of a wire communication ("whole or part through wire or cable"). Rather, I think that radio broadcasts are electronic but not wire communications as contemplated in line (2) above.

Thus, at the end of the day, I have to say that I still think the taping was technically a felony; if I'm wrong about that it's undoubtedly a misdemeanor, so in either case it was an illegal act.

NOTE: This isn't legal advice. I am not a member of the Florida bar. Use duct tape for all your taping needs. See the general disclaimers.

A Very Unusual Defense Strategy

That will be some jury deliberation:

Boing Boing: Don’t like my driving? Call 1-800-flesh-eating-hemadrones: A California man facing life in prison for crashing his car into a UPS truck will not dispute that his actions resulted in the death of the driver when his trial opens Monday in Nevada County Superior Court. Instead, Scott Krause’s defense will argue that the defendant believed he was trying to escape man-eating subterranean beings when he ran into Drew Reynolds’ truck on Jan. 6, 2004.

… In three court-ordered evaluations, the defendant stated he was fleeing subterranean beings he called “hemadrones” when he carjacked a commercial vehicle near a Nevada City, Calif., gas station and then crashed into Reynolds’ service vehicle.

“Everything had to do with his escape from the hemadrones,” said Nevada County District Attorney Michael Ferguson. “According to the defendant, he was afraid they were going to put him in cargo and ship him to China to be eaten.”

Watching a Precedent Happen

The New York Times has an entertaining story today describing how a precedent is born. In this case, other courts seized on attractive legal reasoning even though the entire opinion turned out to be based on facts that had not taken the trouble to exist. See Legal Precedent Doesn’t Let Facts Stand in the Way for the details.

I suppose it helps to be a lawyer to understand why this isn’t nearly as weird as it sounds. Judging from the article, the original opinion was one that guided the parties — evidence is admissible if the following conditions exist. Yes, the judge wrote the opinion thinking those conditions existed…but when they turned out not to exist, the opinion was still valid as it explained why the evidence was not admissible after all. So it wasn’t dicta. And if in fact other courts found the reasoning persuasive, so much the better for them. (Whether in fact the opinion is correct is, however, a whole different question….)

Material Witness Statute Abuse is Founded on a Misreading of the Law

My exuberant colleague Ricardo J. Bascuas has put online an early draft of an important article, The Unconstitutionality of “Hold Until Cleared”: Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet ( forthcoming Vanderbilt Law Review, April 2005).

The article argues very persuasively that the material witness statute is being seriously misused to hold innocent people in jail, and to sweat possibly guilty ones when the government lacks the information to charge them. But we knew that.

What makes this article special is that it also demonstrates through careful textual analysis that the courts which approved the government’s use of the material witness statute to jail people fundamentally misunderstood the original meaning of the orignial material witness statute, which was in fact carefully designed to do no such thing, but only to allow the jailing of witnesses who failed to promise to appear, or who failed to appear when bound to do so.

Not only is this a great article, but it’s Ricardo’s first one — a sign of a glittering academic career in the making.

What Does Not Belong In This Picture?

In an otherwise uninteresting if mildly perplexing article on Martha Stewart’s first days in prison (people are sending her money?), Money magazine offers this summary of prison regulations:

Federal prison rules generally allow outsiders to send unlimited letters, money orders, magazines and other periodicals, according to David Novak, who spent time in jail for fraud before becoming a prison consultant. Inmates are barred from getting flowers, food, personal items, “sexually explicit photographs,” or Polaroid pictures.

Polaroids? It seems they have been used to smuggle drugs. Who would have guessed.

PS. I have no great sympathy for Ms. Stewart. Although her offenses against the securities laws seem pretty minor in dollars, she was about to start a term as a Director of the New York Stock Exchange, and it’s perfectly appropriate in my book to hold directors of major stock exchanges to the highest standards. This is not, as some have suggested, a case against a successful woman, or against a random executive, but rather quite appropriately made an example one of the people charged with running the stock market, one of the people on the planet who could most reasonably be expected to know and comply with the rules, indeed go the extra mile to stay away from anything even borderline.

Eric Muller: 'Astonishing Lapse at the FBI'

Understatement of the week dept:

IsThatLegal?: the FBI’s computer system has a drive onto which agents dump their raw reports, and from which supervisors upload and review them, and quite possibly edit them, before saving them as the official reports on a different drive. The “official” reports are made available, as required by law, to defendants, but the raw reports on the so-called “I” drive have never been. Indeed, the very existence of the “I” drive has been hidden until very recently. …

This is an astonishing lapse at the FBI.

Even if (and I find it very hard to believe) the “I” drive versions of the reports in thousands of cases don’t turn out to contain undisclosed exculpatory information of which the Fifth Amendment’s due process clause would require production as a matter of constitutional right, we can be sure that this computer infrastructure is a flagrant violation of the Jencks Act, 18 U.S.C. sec. 3500, which requires that the government turn over to defendants all “recorded statements” of witnesses who testify at trial.

More evidence that contempt for civil rights flourishes in a climate created by John Ashcroft & GW Bush. Or does the buck stop nowhere?

Democratic Centralism in the Republican Party

Kevin Drum:

I don’t really care about immigration policy all that much, but Colorado Representative Tom Tancredo does. So he tried to get his views adopted in the Republican party platform.

When that failed, he decided to see if he could gin up a floor fight at the convention. This was more political theater than anything else, but even so he ran into an unusual problem:

There are two ways to bring a matter to the floor: One is to convince six state delegations to support the motion for a floor debate—a virtual impossibility, Tancredo realized; the other is to get 19 members of the platform committee to support bringing a matter to the floor. This latter route seemed doable to Tancredo, save for one problem: The congressman couldn’t find out who, exactly, was on the platform committee. Running the platform process with all the discipline and secrecy that’s come to be expected from the Bush White House, the RNC, citing security concerns, refused to divulge the identities of the handpicked delegates who served on the platform committee—even, in some cases, to other members of the platform committee.

The names of the platform committee members are a secret? For “security reasons”? Has the party leadership gone completely insane? (That’s a rhetorical question, of course. No need to answer.)

And this is democracy, how exactly?

Oren Gross on Torture: Ban It Always, Treat Rulebreakers as Circumstances Warrant

Talk about timely scholarship! Prof. Oren Gross of U. Minn. Law has just published Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2004).

Here (minus the footnotes) is his conclusion to a long and complex argument, a conclusion which resembles my views, right down to citing Charles L. Black, Jr. approvingly, but ultimately come out somewhat more accepting of the idea that although torture should always be prohibited in order to discourage resort to it in any but the most extreme circumstances, there exist sets of real-life circumstances were torture might be morally justified, and thus would and should be publically pardoned or praised after that fact:

… the official disobedience model imposes a significant burden on public officials. They must act in the face of great uncertainty. At the same time the model does not completely bar the possibility that interrogational torture will be used by officials and later ratified by the public. It simply makes it extremely costly to resort to such drastic measures, limiting their use to exceptional exigencies. As Sanford Kadish notes, “Would not the burden on the official be so great that it would require circumstances of a perfectly extraordinary character to induce the individual to take the risk of acting? The answer is of course yes, that’s the point.”

…

I support an absolute legal ban on torture while simultaneously suggesting that in catastrophic cases public officials may choose to act outside the legal order, at times even violate the otherwise entrenched absolute prohibition on torture.

Some may charge me with trying to have my cake and eat it too, that is, supporting an absolute legal ban on torture precisely on the ground that it will not function as absolute in real life. Perhaps this is true. Guido Calabresi notes that subterfuges often accompany tragic choices. “We look for solutions which seek to cover the difficulty and thereby permit us to assert that we are cleaving to both beliefs in conflict.” To be sure, my proposal attempts to cling to both sets of values involved in assessing torture in general, and preventive interrogational torture in particular. However, rather than cover up the difficulty I seek to expose it and ensure that it is dealt with in as transparent, open, and public manner as possible. This desire for visibility, accountability, openness, candor, and responsibility is shared by proponents of ex ante torture warrants and of ex post public ratification alike.

But is public and open debate about torture, in and of itself, desirable? Or is it better to treat the absolute ban on torture as axiomatic and avoid attempts to prove its desirability or usefulness? Does merely engaging in debate on torture reflect “loose professionalism”? …

… the alternative to no open debate over the use of torture (or, indeed, to discussion that merely replicates the mantra that torture is absolutely prohibited) is not the disappearance of the practice of torture. While we abhor the detailed medieval codes and procedures on torture, we also ought to recognize that the practice remains. By refusing to discuss torture, we do not make it go away; we drive it underground. Moreover, by refusing to acknowledge that the notion of torture is more complex than many supporters of the “torture-is-banned-and-that-is-all-there-is-to-it” approach would have us believe, we run the risk of having the general public perceive the legal system as either utopian or hypocritical. After all, most of us believe that most, if not all, government agents, when faced with a genuinely catastrophic case, are likely to resort to whatever means they can wield—including preventive interrogational torture—to overcome the particular grave danger that is involved. And I believe that most of us hope they will do so.

It’s that last line which worries me.

Phil Carter Notes Probable Jurisdiction

Phil Carter points out that the Patriot Act usefully expands US criminal law jurisdiction to sweep in “crimes committed by or against any U.S. national on lands or facilities designated for use by the United States government”:

Sure enough, Sec. 804 of the USA PATRIOT Act … amends 18 U.S.C. 7, also known as the “special maritime and territorial jurisdiction” statute of federal criminal law, to include U.S. military bases and embassies outside of the U.S. Here’s the relevant text of 18 U.S.C. 7

Of course, this is of no great value to parties wishing to file civil law suits, and the odds that a US Attorney is going to start investigating Guantanamo seem pretty low. Prosecutions at Abu Ghrabi are firmly in the hands of the military justice system, and it’s too soon to tell whether the military honor reflex or the military cover-up reflex will dominate.

But, as noted on Intel Dump, this amendment has borne fruit in the prosecution of a civilian contractor in Iraq for an assault that lead to the death of a CIA detainee. Update: Washiington Post explains the background to the prosecution.

Deconstruction of Torture Memo's Analysis of Criminal Intent

One of the weirder parts of the Torture Memo, which I didn’t write about earlier, was the attempt to suggest that a torturer might be able to benefit from what we lawyers call a ‘pure heart, empty head’ defense: ‘Honest, judge, I didn’t think it was torture.’ The memo tries this on in two implausible ways: (1) The guy doing the damage honestly believes it’s legal; (2) the guy doing the damage isn’t sure it’s really going to be that damaging. Both arguments seem completely inapplicable to the circumstances, neither is convincing, and the legal analysis is muddled. But don’t take my word for it, it’s not my field. Instead, have a look at these three posts by experts.

Update (6/11/04): Also don’t miss Eric Muller’s excellent comment, Manipulating Doctrine.

Another Absurd Bush DOJ Prosecution Bites the Dust

Prof. Michael Massinter of Nova Law School reports on a mailing list I frequent that “DoJ’s prosecution of Greenpeace, the first prosecution modern history of a nonprofit advocacy group for the nonviolent civil disobedience of its members, ended abruptly this afternoon when, at the close of the government’s case, the trial judge ruled the evidence insufficient to create a jury question on the offense of sailor mongering and therefore on the offense of conspiracy to commit sailor mongering, and entered a judgment of acquittal.”

The case was significant as the DoJ was trying to convict an organization for the activities of supporters — the ultimate chilling effect.

Background on the case at TalkLeft: Justice Department Trial Against Greenpeace Begins.

AP says:

U.S. District Judge Adalberto Jordan ended the case after the prosecution rested in the nation’s first federal indictment targeting an advocacy group for its protest tactics.

The environmental group was accused of violating a 1872 law, not used in more than a century, when its members boarded a ship to protest the Amazon mahogany lumber that was part of its cargo.

Greenpeace claimed the charges were payback for its criticism of what the group said is lax Bush administration enforcement of international restrictions on mahogany trade.

Six Greenpeace activists spent the weekend in jail after two of them boarded the 965-foot cargo ship APL Jade six miles from its dock in the Port of Miami to protest a 70-ton load of Brazilian mahogany shipment on April 12, 2002.

The organization was indicted 15 months later under a law that had not been used since 1890.

The law was intended to keep boarding houses from luring sailors off inbound ships that were about to arrive with offers of harlots, strong drink and warm beds.

Alberto Gonzales Memo: Paving the Way for War Crimes?

MSNBC has the full text of the memo by White House Counsel Alberto Gonzales. Aside from its fundamental callousness and lack of moral outrage, there are odd things about it.

Gonzales rejects, without discussion, the concept that if armed people are not entitled to POW status they might still benefit from Geneva III, protecting civilians. Or might be subject to basic norms of decency and due process arising from the Constitution which creates the powers he and his boss exercise.

Even stranger is the odd discussion of the War Crimes statute, 18 U.S.C § 2441. Gonzales opines that one good reason for NOT treating detainees as POWs is that not giving them POW status lessens the chance of subsequent prosecutions against their US captors under the war crimes statute.

Why, you might ask, worry about prosecution at all? Is Gonzales aware of a plan to mistreat the detainees? It sure looks that way.

Gonzales’s first argument against treating al Queda or Taliban fighters as POWs is that doing so would increase the danger of prosecution for “vague” offenses prohibited by the Geneva convention, namely “outrages upon personal dignity” and “inhuman treatment”. Reading those lines today, in the fullness of hindsight, it is very hard to escape the suspicion that Gonzales knew or suspected the sexual humiliation planned for Arab detainees.

Gonzales’s second argument against treating al Queda or Taliban fighters as POWs is that”it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.” (Reading that today, it seems to mean “we might need to torture people”.)

Gonzales’s third reason for treating is the legally weirdest of all:

“it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a solid basis in law that Section 2441 does not apply, which would create a solid defense to any future prosecutions.”

I’m scratching my head trying to figure out what this means, especially as Gonzales has a reputation for being pretty smart.

• Does Gonzales think that the “just following orders” defense will work? I hope not.

• Does Gonzales think that the courts would accept the President’s determination on this as determinative? That’s not totally implausible: a court might see the President’s official determination as somehow being a political question and hence not reviewable. Except that I don’t think any court would do this: the point of the Geneva conventions is to bring decisions like this into law, out of politics. Suppose Bush had ruled that unformed French troops were outside the convention — would that be unreviewable? Unlikely.

• So, on the assumption that Gonzales is smart, I’m puzzled. Does Gonzales have a bad staff?¹ Of course, it could be that Gonzales was making a political not a legal judgement: if the President OK’d it, prosecutors are less likely to prosecute. But to make this the centerpiece of your argument?

The more I look at this thing, the worse it smells.

¹ It cannot be that Gonzales has some crafty theory of qualified immunity up his sleeve. Qualified immunity protects a government official from civil liability so long as his/her “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” i.e. blocks lawsuits when the government actor could have had a reasonable belief that the act was lawful. Trouble is, the only immunity from criminal prosecution is that provided by a pardon. And § 2441 is a criminal not a civil statute. And the only part of §2441 (quoted below) that turns on intent at all is the part that refers to a person who “willfully kills or causes serious injury to civilians” in violation of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Device.

Here’s the full text of 18 USC § 2441.

War crimes

(a) Offense.—Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances.—The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

© Definition.—As used in this section the term ‘war crime’ means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non- international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

[citation corrrected 6/6/04]

Feed the Homeless. Go to Jail.

Unless there’s something we’re not being told here, this is a sign that some people have lost all sense of morality. Can it really be a CRIME to share your picnic with homeless people? Even if the sharing is premeditated and the picnic somewhat pretextual?

It’s legal to feed stray dogs but not hungry people? The ants can have their picnic but not the homeless? You need a FEEDING LICENSE TO GIVE FOOD TO THE HOMELESS IN TAMPA?

3 Arrested During ‘Picnic’ With Homeless In Park: The feud between the group Food Not Bombs and the police has been going on since at least March 21. Group members, many of whom are students at the University of South Florida, say it is their right to feed anyone, anywhere they see the need.

City officials say any group wanting to gather in the park must pay an application fee and buy insurance. Mayor Pam Iorio has said Massey Park does not have the facilities necessary for feeding the homeless.

Durkin said the group could also affiliate with a recognized feeding organization.

Members of Food Not Bombs, including Anthony Schmidt, say they do not feel they should have to do that.

“It’s a contradiction to say we can’t have a picnic and share with our friends,” he said.

(spotted via the aptly-named The American Street)

We should be giving awards to people who feed the hungry, not arresting them.

How low can we go?

Anomalous Prosecution

Generally speaking, I am against laws that prohibit ‘victimless’ crimes, although my idea of what constitutes ‘victimless’ may be quite different from yours, especially if you are a particular kind of libertarian. I am, for example, perfectly prepared to entertain supporting laws banning activities in which the only immediate victim is the perpetrator, so long as a likely consequence of the activity is something that might harm the rest of us — or cost the rest of us money. Thus, for example, I support motorcycle helmet laws because the accident victims end up in public emergency rooms…and sometimes become public charges for years if the injuries are serious.

And I support laws against child pornography produced with real children. Not because I am convinced by the evidence that the material harms the people who acquire it or that it encourages to go out and hurt children (although the latter, if proved, would be a good reason for the law)—from what I’ve read, it seems at least possible that as many folks sublimate with the virtual stuff and leave the real kids alone. Rather, it seems pretty clear to me that the production of the stuff hurts the children used to make it in all sorts of ways, and that this alone suffices to ban its manufacture. It follows that one bans sale and perhaps also exchange and even possession in order to reduce demand. (Note that this means that the case for banning virtual child porn (i.e. the fake stuff) seems less strong to me.)

What then to make of the latest child porn case reported in Pittsburgh? (Updated)

According to the Pittsburgh Post-Gazette, Teen who posted own photo charged with child porn.

State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet.

Police said the girl, whose identity they withheld, photographed herself in various states of undress and performing a variety of sexual acts. She then sent the photos to people she met in chat rooms.

A police report did not say how police learned about the girl. They found dozens of pictures of her on her computer.

She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography.

To me this seems a real case of arresting a victim, the person the rule is designed to protect, and a fairly poor use of prosecutorial discretion. I could vaguely understand it if it were a profit-making business, but this sounds from the admittedly sketchy news report as if it’s more a case of a confused, probably lonely, child who needs counseling (and friends), not a trial and a police record.

It’s true that child porn is an unusually strict liability crime, in which possession alone, without intent or even knowledge, constitutes the offense. It’s also true that police and prosecutors are not always reasonable about some kinds of offenses. Still, this prosecution simply cannot be what the drafters of this statute had in mind.

Police said they are trying to identify all the people who receive photos from the girl.

If the 15 year old in question sent racy pictures of herself to a boyfriend (or girlfriend) of the same age, or a would-be friend, it’s also a little hard to believe that the recipient of the pictures deserves to be prosecuted…although if the recipient incited the photo session I suppose the issues start to get murky…

Update: A little reflection, and a moment’s Westlaw, suggests that as regards the 15 year old’s having copies of pictures of herself, she’s arguably protected under Stanley v. Georgia, 394 U.S. 557 and Osborne v. Ohio, 495 U.S. 103 (1990). Stanley — something of an orphan in the law — holds that private possession of porn in the home is protected, but sharing isn’t. Osborne is oft cited for the idea that child porn is outside the rule in Stanley…but in fact the case said that a state anti-child-porn law was constitutional because it protected minors from exploitation—and because the state courts had read in a mens rea requirement. This prosecution would fail at least the first of those tests, and probably both. But that doesn’t speak as clearly to her exposure to prosecution for sending the pictures of herself.

But I could be wrong: I never have been very interested in the pornography jurisprudence of the Supreme Court, as it always seemed both contrived and arbitrary. I’m sure that many of my colleagues, readers, and other bloggers know the law in this area better than I. (Eugene, are you out there?)

In any event, the argument is surely suspect as it ignores the Llewellynian fact that what a case is thought to say is sometimes more important than its actual text…

Beyond Weird & Scary: Mass X-Ray Searching in UK

Talkleft has a pointer to a UPI item that is so weird I have to quote it in full: TalkLeft: British Cops Search Pub Patrons With Giant X-Ray Device:

British police used a giant X-ray machine to check for drugs and guns in raids on two London pubs, the BBC reported Saturday. Thirty four suspects were arrested by police who used a 7-foot high X-ray machine outside the two pubs. Suspects had the choice to be scanned or strip searched - officials said most people chose the X-ray. The scan shows anything hidden under one's clothes, including metal, plastic or ceramic guns, wooden clubs, explosives or drugs. Scotland Yard said the arrests were for offences that included possession with intent to supply drugs, possession of an offensive weapon, credit card fraud and immigration violations.

It can't happen here, right? Right? Right?

More on Hackergate: One Staffer or Two?

A commentator[*] suggests that, contrary to my suggestion, Mr. Miranda is not a second staffer, but the first staffer in a new job. At first glance this seemed odd to me, since Sen. Hatch announced in late November that the staff member involved had been suspended, and the AP was reporting Sen. Frist’s suspending Mr. Miranda as if it were new.

The AP article I linked to is silent on this question, but more research suggests that the “same staffer” theory turns out to be possible, albeit unlikely— although the it’s-only-Miranda scenario has its own interesting aspects.

The New York Times suggests there were two staffers, i.e. that that Mr. Miranda had an accomplice:

Manuel C. Miranda, a former Republican Judiciary Committee staff member, whose name appeared as a recipient of one of the Democratic e-mail messages and who has been questioned by Mr. Pickle’s investigators, said in an interview Thursday that he knew how the documents were obtained by Republicans. He said that a junior member on the staff of Senator Orrin G. Hatch, Republican of Utah and chairman of the Judiciary Committee, had discovered a flaw in the computer system that allowed him to read some of the Democratic computer traffic.

Mr. Miranda, who is now a senior staff aide to Senator Bill Frist of Tennessee, the Republican leader, said that the junior aide was reading the Democratic documents from about May 2002 until the early fall of 2002. The aide, who has since left the Senate, passed some of those memorandums to Mr. Miranda and other Hatch staff members, Mr. Miranda said.

“Those documents that I did read were, in my view, not obtained in any way that was improper, unlawful or unethical,” he said. He described them as “inadvertent disclosures that came to me as a result of some negligence on the part of the Democrats’ technology staff.” His only obligation, he said, was to see that the Democrats were told that the computer system had a flaw that allowed Republican aides to read some of their memorandums.

“I knew our people had told their people about it,” Mr. Miranda said. “Once I knew that, I had no further obligation.”

Suppose, however, there was just Mr. Miranda. Then even more interesting questions arise:

• Was he really suspended in November at all?
• If so, when did it end and why?
• And why is he re-suspended now?

Whether there’s one staffer or more, it would also be interesting to know:

• Whether Senator Frist hired Mr. Miranda knowing about the Hackergate incident?
• If so, was it as a reward?
• And, whether or not he knew then, does Senator Frist endorse Mr. Miranda’s vision of Senate collegiality and comity as set out in the NYT article above?

[*] I deleted the comment which raised this issue because it violated rules one and two of my comments policy—fortunately something I only rarely need to do. Perhaps because there are so few comments….

Second Staffer Fingered In Senate Hackergate Probe

Yahoo! News - Memo-Leak Probe Expands to Frist’s Office:

An aide to Senate Majority Leader Bill Frist has been put on leave during an investigation into how Republicans gained access to Democratic memos concerning opposition to President Bush (news - web sites)’s judicial nominees.

Manuel Miranda, who works for the Tennessee Republican on judicial nominations, is on leave pending the outcome of the inquiry by the Senate sergeant-at-arms, Frist spokesman Nick Smith said Tuesday. In the matter under investigation, Democratic memos stored on a computer server shared by Judiciary Committee (news - web sites) members ended up in GOP hands.

Miranda told The Knoxville News-Sentinel that investigators were looking at work he performed for the Judiciary Committee before he joined Frist’s office. “There was no stealing,” he said. “No systematic surveillance. I never forwarded these memos — period.”

I said previously that this wasn’t a one-person show, that it went beyond the single staffer Hatch already suspended.

No way that goodies like this didn’t get shared around.

Senate Republicans==Dishonorable People, Possibly Thieves

Senate courtliness and comity? Bipartisanship? Nah. Try dirty tricks, dishonor and thieving. And don’t think for one minute that some Senators didn’t know what was going on. If only Senate Democrats had the guts to take scalps.

Infiltration of files seen as extensive. Republican staff members of the US Senate Judiciary Committee infiltrated opposition computer files for a year, monitoring secret strategy memos and periodically passing on copies to the media, Senate officials told The Globe.

From the spring of 2002 until at least April 2003, members of the GOP committee staff exploited a computer glitch that allowed them to access restricted Democratic communications without a password. Trolling through hundreds of memos, they were able to read talking points and accounts of private meetings discussing which judicial nominees Democrats would fight — and with what tactics.

The office of Senate Sergeant-at-Arms William Pickle has already launched an investigation into how excerpts from 15 Democratic memos showed up in the pages of the conservative-leaning newspapers and were posted to a website last November.

With the help of forensic computer experts from General Dynamics and the US Secret Service, his office has interviewed about 120 people to date and seized more than half a dozen computers — including four Judiciary servers, one server from the office of Senate majority leader Bill Frist of Tennessee, and several desktop hard drives.

Don’t let anyone tell you this is business as usual. Hacking into federal computers is usually a serious crime. Here, however, the criminal law issue is slightly murky.

Whether the memos are ultimately deemed to be official business will be a central issue in any criminal case that could result. Unauthorized access of such material could be punishable by up to a year in prison — or, at the least, sanction under a Senate non-disclosure rule.

The computer glitch dates to 2001, when Democrats took control of the Senate after the defection from the GOP of Senator Jim Jeffords, Independent of Vermont.

A technician hired by the new judiciary chairman, Patrick Leahy, Democrat of Vermont, apparently made a mistake that allowed anyone to access newly created accounts on a Judiciary Committee server shared by both parties — even though the accounts were supposed to restrict access only to those with the right password.

A Heartwarming Story of Crooked, Violent Cops and the Strangely Unnecessary Perjury that Got Them Off Charges for Burning and Beating a Frequent Felon

Federal prosecutors abruptly drop beating charges against 4 Miami cops “Four Miami police officers charged with beating a career criminal were set free Tuesday morning after federal prosecutors admitted the foundation of their case was constructed on perjury concocted by the criminal and his family.”

On its face this sounds like the Miami version of a ‘man bites dog’ story, with a dash of Perry Mason. With the extra added dollop that this is a re-trial of a long-running case.

Not only does it appear that the cops were telling the truth and the accused beating victim committed perjury, but the truth came out in a made-for-TV moment,

Former officers Aguero and Jorge Castello and suspended cops Jorge ”Termite” Garcia and Wilfredo Perez were charged with beating, kicking and burning Anazco after he had been picked up.

Tuesday’s shocking development started falling into place late Friday when federal prosecutors Curtis Miner and Jacqueline Becerra called Hialeah brake shop manager Armando Rodriguez to the stand.

Rodriguez did not testify at the 2002 trial, but his testimony was key to the prosecution in the retrial. On Friday, Rodriguez said he ordered parts to repair Anazco’s Supra — corroborating Anazco’s contention that the cops had beaten the wrong man because his car was in the shop when the rock was tossed.

But defense attorneys, led by Castello’s attorney, Richard Sharpstein, quickly ripped apart Rodriguez’s story.

Over the weekend, Miner said Rodriguez confessed that he fabricated the receipt showing that he ordered parts for the Supra and that he was asked to lie ”by others” whom Miner did not name.

Rodriguez, who initially testified that he did not know Anazco before he came to his shop, later admitted he had known the career criminal at least 12 years and had even employed his uncle.

On Friday, Sharpstein confronted Rodriguez with forms Rodriguez and his wife signed in September 2001 to visit Anazco in a state prison. On the forms, Rodriguez said he was ”friends” with Anazco.

During Friday’s cross-examination by Sharpstein, Rodriguez admitted that Anazco’s father, Asbert, had asked him to visit his son.

”This isn’t hyperbole,” Sharpstein said Tuesday. “In my 28 years as an attorney, I’ve never had a guy admit on the stand that he committed perjury. It just doesn’t happen.”

I would like to write a heartwarming story about honest cops and the truth will out. But wait a minute. This is Miami we’re talking about. It’s not nearly that simple. For one thing, the victim’s account of how he sustained his injuries was partly corroborated by two independent witnesses—both police officers.

Further, two of the defendants were recently convicted on charges arising from a separate incident of helping cover up planted guns after questionable police shootings; the other two are to be retried after a hung jury. So the cops are unlikely angels.

In opening statements, prosecutor Jacqueline Becerra said police struck a defenseless Anazco on the head and shoulders with a flashlight and a walkie-talkie and burned him with a cigarette after his 1997 arrest.

Brake shop manager Armando Rodriguez offered an alibi for Anazco for a rock-throwing incident that allegedly triggered the beating. But it turned out Rodriguez was a longtime friend and visited Anazco in jail.

As for the victim, as a legal matter the question of where he was two days before the alleged beating, or whether he was in fact the guy the cops were looking for, is legally irrelevant. It’s unclear to me why the evidence of the perjured alibi was even admissible given that it had little to do with charges at issue.

Here’s how the Herald reported the underling facts three days ago,

Federal prosecutors Jacqueline Becerra and Curtis Miner say the four officers bloodied, battered and burned Alexander Anazco because they believed he had thrown a rock at a police car on Interstate 95 two days earlier.

”All of this happened while he was handcuffed and defenseless,” Becerra said during opening arguments.

But defense attorneys for former officers Jesus ”Jessie” Aguero and Jorge Castello and suspended officers Wilfredo Perez and Jorge Garcia argued that the four did what they are paid to do: protect the public from repeat felons such as Anazco.

…

On Feb. 24, Castello and his partner were driving on I-95 when someone in a souped-up Toyota Supra tossed a rock and then outran them at speeds exceeding 100 mph.

Two days later, undercover officers including Aguero, Garcia and Perez stumbled upon Anazco in a car matching the description of the vehicle from the rock-tossing incident.

So the perjured testimony, the phoney alibi, was for a rock-throwing incident TWO DAYS EARLIER. Why it was necessary is completely opaque. After all, it was already clear that the victim was not a nice guy:

Anazco, 29, has been convicted of at least 25 crimes in 12 cases since 1991. Among the convictions: grand theft, armed robbery, aggravated assault with a weapon, and possession of cocaine.

He is awaiting trial on false imprisonment and sexual battery charges.

Given that the core accusations against the cops were that they beat and burned the guy after they had him handcuffed and helpless, what possible difference can it make whether he threw a rock two days earlier? Or even if he, say, had killed a large number people?

Part of the answer relates to how the advocates framed the issues in the original trial,

“Did Alexander Anazco try to escape and was he subdued justifiably by the police officers? That’s the issue. It’s simple,” prosecutor Allan Kaiser said. “He was bloodied. He was beaten. He was moaning in the back seat of that car.”

Hugo Rodriguez, attorney for officer Jessie Aguero, said only two officers were involved, and they used justifiable force to subdue Anazco when he tried to get away again.

Rodriguez also implied the jury should excuse excessive force, because that’s sometimes necessary to keep streets safe from predators and thugs.

“Don’t send the wrong message to police that are out there all the time,” he said, drawing a prosecution objection. “Tell these police officers you’re willing to protect them the same way they protect you.”

You can see why the prosecution, stung by a hung jury, would want to paint Anazco as guiltless as possible. And you can see why, once it appears that they relied on perjured testimony, they might think their whole case was tainted, and throw in the towel. Nevertheless, you would think that there were virtually no set of circumstances in which police could argue with a straight face that it was justifiable to burn a suspect with a cigarette.

Criminal law is not an area I work much in, and criminal procedure and evidence least of all, but what I can’t see is why the judge allowed the testimony in as relevant in the first place. Not to mention that any seasoned Miami trial watcher has come to be very suspicious of any convenient testimony. Even convenient perjury.

Update (1/21): Talkleft points to a transcript of the testimony.

The Nation's Wishful Thinking: 'French May Indict Cheney'

Doug Ireland, writing in The Nation, asks Will the French Indict Cheney?. While no expert on the subject, my sense of French prosecutorial independence is that there’s less of it than, say, one finds in Italy. In other words, while there may be some ugly facts, short of a confession on video, there would be no prosecution unless the French central government wanted one. And I’d be rather surprised if they wanted one right about now. Unless they really hate Bush, which I suppose is possible.

Then again, if anyone is up to bucking the French establishment, it’s Judge [French prosecutors are judges] Van Ruymbeke, who has already prosecuted major French politicians for taking bribes from ELF…

Yet another sordid chapter in the murky annals of Halliburton might well lead to the indictment of Dick Cheney by a French court on charges of bribery, money-laundering and misuse of corporate assets.

At the heart of the matter is a $6 billion gas liquification factory built in Nigeria on behalf of oil mammoth Shell by Halliburton—the company Cheney headed before becoming Vice President—in partnership with a large French petroengineering company, Technip. Nigeria has been rated by the anticorruption watchdog Transparency International as the second-most corrupt country in the world, surpassed only by Bangladesh.

One of France’s best-known investigating magistrates, Judge Renaud van Ruymbeke—who came to fame by unearthing major French campaign finance scandals in the 1990s that led to a raft of indictments—has been conducting a probe of the Nigeria deal since October. And, three days before Christmas, the Paris daily Le Figaro front-paged the news that Judge van Ruymbeke had notified the Justice Ministry that Cheney might be among those eventually indicted as a result of his investigation.

The Nation's Wishful Thinking: 'French May Indict Cheney'

Doug Ireland, writing in The Nation, asks Will the French Indict Cheney?. While no expert on the subject, my sense of French prosecutorial independence is that there’s less of it than, say, one finds in Italy. In other words, while there may be some ugly facts, short of a confession on video, there would be no prosecution unless the French central government wanted one. And I’d be rather surprised if they wanted one right about now. Unless they really hate Bush, which I suppose is possible.

Then again, if anyone is up to bucking the French establishment, it’s Judge [French prosecutors are judges] Van Ruymbeke, who has already prosecuted major French politicians for taking bribes from ELF…

Yet another sordid chapter in the murky annals of Halliburton might well lead to the indictment of Dick Cheney by a French court on charges of bribery, money-laundering and misuse of corporate assets.

At the heart of the matter is a $6 billion gas liquification factory built in Nigeria on behalf of oil mammoth Shell by Halliburton—the company Cheney headed before becoming Vice President—in partnership with a large French petroengineering company, Technip. Nigeria has been rated by the anticorruption watchdog Transparency International as the second-most corrupt country in the world, surpassed only by Bangladesh.

One of France’s best-known investigating magistrates, Judge Renaud van Ruymbeke—who came to fame by unearthing major French campaign finance scandals in the 1990s that led to a raft of indictments—has been conducting a probe of the Nigeria deal since October. And, three days before Christmas, the Paris daily Le Figaro front-paged the news that Judge van Ruymbeke had notified the Justice Ministry that Cheney might be among those eventually indicted as a result of his investigation.

Harshness of Our Criminal Justice System

This story, A Judge’s Struggle to Avoid Imposing a Penalty He Hated, does not make you feel all warm and fuzzy about our criminal justice system, although it speaks well for Judge Lynch. The 18-year old defendant remailed a lot of nasty kiddie porn. From the sound of it, it’s not wrong to convict him. But to send him to jail for twice as long as he’d get for statutory rape of a 12-year-old?

Aschroft (Finally) Recuses Himself from Plame Affair. Why Now?

Ashcroft Recuses Himself From Probe of C.I.A. Leak. The obvious questions is, why now? The most likely theory is that the prosectuors have come up with something that made the recusal inescapable. The much less likely and more cynical theory is that Main Justice having done all the obstruction it could do, there was nothing to be lost from getting out of the way.

Better late than later, yes. I still hope the probe at least looks into the apparent obstruction of justice issues surrounding the first 24-48 hours of the leak inquiry. Justice was unbelievably slow about ordering white house staff to keep their files intact. I want to know just how that came to be.

Various commentary at Billmon, Kos, Kos, again, and better and lots of good background at Crooked Timber.

Justice Overwhelmed Is Justice Denied

I don’t teach Criminal Law. I’ve never practiced criminal law. But it doesn’t take much expertise to suspect that our criminal justice system is disastrously flawed. Stories like this one are, I fear, too routine. The hell of it is, large parts of the system are full of well-meaning people. Not all of them—no system is—but even so. The problems are, I think, systemic more than anything else.

Here in Florida, as in much of the nation, we have a prison-building craze; meanwhile, the United States already leads the world in the percentage of its population behind bars. According the Justice Dept. there were 2,019,234 people incarcerated last April. It’s probably more now. And let’s not even get into the racial composition of the prison population, or the racial (and electoral) consequences of felony convictions.

The callousness of the justice system is in some part—although how big a part is a nice question—a result of its being overloaded and under-funded. And while throwing more money at the problem might improve the job prospects for graduating law students, something I am generally in favor of, I don’t think that there is any chance this state, or this nation, would spend what it would take.

The US is a diverse, mobile, multi-cultural society. Those are among its strengths. As a result of these properties, however, it probably lacks some traditional means of inspiring self-regulation and order among its citizens that exist in those increasingly rare homogenous nations with strong national traditions governing public and private behavior. Indeed, the US is composed of citizens who probably don’t all share the same exact idea of what that regulation and order should look like. In those circumstances, I’m prepared to believe that the US may need to regulate through crime more than might otherwise be necessary in, say, Japan.

But not this much.

The choices are inescapable: either we live with a broken system, or fund the system, or take some of the strains off the system. The first is likely, but horrible. The second is unlikely and would probably mean de-funding something else that we need. So I’m tentatively persuaded that we need to investigate the third option. That means a painful conversation about which things we currently call crimes might be taken off the statute books. And what sort of investments other than in new prisons (schools! teachers! schools! teachers!) might make the taxpaying life seem more realistic and attractive to the young people who commit a disproportionate share of violent crime.

If the deal were, decriminalize all so-called victimless crime (drugs, mainly), spend part of the savings on schools and teachers, and part on having more cops walking dangerous streets to make them safe enough for old people to walk without fear, I’d take it in a minute. But no one is offering me that deal. It may be because drug laws are the true third rail of politics. Or, it may be that the problems go a lot deeper, and that wouldn’t be enough. OK, now I do need an expert…