The Baddest Lawyer in the History of Jersey is also, I’d bet, the most colorful graduate — ever — of Nova Southeastern law school, just up the road in Fort Lauderdale.
Category Archives: Law: Criminal Law
Despite my trawling the French media, the best short explanation I’ve seen of key aspects of the case is, in all places, a philosopher’s blog. Robert Paul Wolff happens to be visiting Paris, and he offers this great DSK summary.
There are essentially four possibilities. First, things may have gone exactly as the young hotel maid says. Second, the entire thing may have been a complete lie, a frame up, a non-event. Third [this one is attractive to French commentators, who know DSK's reputation], the maid may have come into the room [either intent upon carrying out a sting or not], and DSK, aware of his reputation and fearful that he was being set up by his political enemies, fled precipitously to avoid being found in a potentially compromising situation. And Fourth, sex may have occurred, presumably at DSK’s instigation, but it was sufficiently “consensual” not to constitute attempted rape or sequestration or any of the other things with which he has been charged [this one is being floated by DSK's defense lawyers.]
So, here is where things stand. If the evidence of the keys shows that DSK checked out before the maid used her key to enter the room, or so soon afterward as not to allow time for anything at all to have happened, then clearly the whole thing is a lie, a sting, a put-up job. If the timeline of the keys makes it possible that the accusations are true, but if the electronic evidence shows that the door stood open for, let us say, half an hour, then the maid’s story of DSK shutting her in shortly after she entered the room is false, and possibilities two or three above are suggested. If all of this electronic evidence is compatible with the truth of the accusations, then the question will be whether there any DNA or other physical evidence supporting the accusations. If there is clear evidence of physical contact [not necessarily semen, but possibly that], then either we have an attack or we have “consensual” sex.
That is where things stand until we have more evidence, but I have to say that on the face of it, the story about a sting is pretty implausible.
And, sadly, this:
Incidentally, in all of the French newspaper coverage, much of which now focuses on the superiority of the French over the American judicial system and on the appalling assault on the dignity of DSK constituted by the pictures of him in handcuffs, I was unable to find a single word of sympathy of any sort for the hotel maid. She is a poor, Black, working-class woman, and as far as the sophisticated left wing journalists, academic commentators, and psychoanalysts are concerned, she does not exist.
The case was a fairly routine-looking DUI, but the Court of Appeal decided to use it as a vehicle to settle a more general question of law:
Because the first step in this analysis requires us to review the trial court’s findings of historical facts and, in this case, those findings are based in part on a video recording of the event, this court, sua sponte, issued an order converting this appeal from a one-judge appeal to a three-judge appeal and requested the attorney general to file a supplemental brief on the appropriate standard of review. With the near ubiquitousness of squad car video cameras, surveillance cameras and traffic cameras, appellate courts will be deciding more and more cases where some of the evidence is preserved on recordings.
(footnotes omitted). Death of Privacy? got cited for the ubiquitousness point, which is fair enough, although not exactly central to the main issue the court was concerned about.
The standard of review for decisions based on recorded evidence is debatable because a reviewing court ought to be as able to review recordings as is the trial court; the same cannot be (or at least, is not) said about testimonial evidence, since the trial court sees the live witness while the reviewing court sees only the ‘cold’ written record. Traditionally Anglo-American legal systems tend to give a great deal of weight to the seeing of live witnesses by triers of fact, whether or not this in fact enhances accuracy; civil law systems, I gather, do not have the same fetish.
States differ on the appropriate standard of review in such cases, but the Wisconsin Court decided that “clearly erroneous” was indeed the test it would apply when a trial court makes an evidential determination based on a combination of testimony and recorded evidence rather then the far less deferential “de novo” standard urged by the appellant. The perhaps more interesting issue of what standard of review would apply if all the evidence were recorded is not decided in this case, at least not explicitly.
I admit crim pro is not my strong suit, but why isn’t the conduct described in Islamic Shura Council v. FBI (C.D. Cal. Apr. 27) simple perjury by a government official?
The Government’s in camera submission revealed that the Government initially misled the Court in two material respects. First, the Government’s representations regarding its use of “outside the scope” were inaccurate. The Government initially represented to the Court that the Government provided all information that “include[d] any reference to plaintiffs in any document in any file,” and any information withheld as “outside the scope” of Plaintiffs’ request was “non-responsive.” (Opp’n to Pl.’s Mot. Summ. J. at 3, 11.) Mr. Hardy’s second declaration stated that, in truth, documents “that would otherwise be considered to be responsive to plaintiffs’ request” were excluded from production or redacted as “outside the scope.” (Second Hardy Decl. ¶ 5.) Second, the Government’s representations regarding the number of responsive documents were false. The Government previously represented that it had identified only a limited number of documents responsive to Plaintiffs’ FOIA request. (First Hardy Decl. ¶¶ 19, 31–43, 45–46.) Mr. Hardy’s second declaration acknowledged that the Government had identified a large number of additional responsive documents, but that the Government did not disclose the existence of these other documents. (Second Hardy Decl. ¶ 13.)
The first declaration was, if I am reading it right, under oath. And there were lawyers involved in many stages of this too.
(Case spotted via Volokh. Neither he nor the judge call it perjury.)
Wait a minute.
The American Civil Liberties Union of Michigan urged the Michigan State Police MSP today to release information regarding the use of portable devices which can be used to secretly extract personal information from cell phones during routine stops. For nearly three years, the ACLU has repeatedly asked for this information through dozens of Freedom of Information Act requests, but to date it has not been provided.
Michigan state cops — and thus presumably lots of other state and federal cops and TLAs — have a secret “portable devices that have the potential to quickly download data from cell phones without the owner of the cellphone knowing”? And they’ve had it for three years?
This has to be tinfoil stuff, right? Right?
According to CelleBrite, the manufacturer of at least some of the devices acquired by MSP, the product can extract a wide variety of data from cellphones including contacts, text messages, deleted text messages, call history, pictures, audio and video recordings, phone details including the phone number and complete memory file dumps on some handsets.
CelleBrite touts itself online as a “maker of mobile forensics and data transfer solutions”.
Cellebrite’s mobile forensics products enable extraction and analysis of invaluable evidentiary data including deleted and hidden data for military, law enforcement, governments, and intelligence agencies across the world.
Among the goodies in their product line is the Cellebrite UFED Forensic System:
The Cellebrite UFED Forensic System is the ultimate standalone mobile forensic device, ready for use out in the field or in the lab.
The UFED system extracts vital information from 95% of all cellular phones on the market today, including smartphones and PDA devices (Palm OS, Microsoft, Blackberry, Symbian, iPhone, and Google Android). Simple to use even in the field with no PC required, the UFED can easily store hundreds of phonebooks and content items onto an SD card or USB flash drive.
Cellebrite UFED supports all known cellular device interfaces, including serial, USB, infrared, and Bluetooth. Extractions can then be brought back to the forensic lab for review and verification using the reporting/analysis tool. Cellebrite works exclusively with most major carriers worldwide including Verizon Wireless, AT&T, Sprint/Nextel, T-Mobile, Rogers Wireless – Canada, Orange France and Telstra Australia, as well as 140 others. This ensures that future devices are supported prior to retail launch.
Yikes. Does this sort of search violate the 4th Amendment? It should, but presumably the courts will treat it much like an actual search of a phone incident to a stop. Courts, such as the California Supreme Court recently, have held that such searches are allowed incident to arrest — but it doesn’t follow that a such an intrusive search would be allowed incident to a stop since there’s no way to hide a weapon in a cellphone SIM card; also not all stops are equal.
Sheriff uses tank to knock down part of house and arrest unarmed man…on suspicion of …wait for it…cockfighting.
Yes, it was crazy Sheriff Joe Arpaio of Pheonix, Arizona. The fact that they had a guy along riding in the tank and filming for a TV show had nothing to do with it.
But they did kill 115 chickens on the spot, so all that force might have been necessary: “We’re going to err on the side of caution.” a spokesman explained.
You know, when Heller or Pynchon wrote stuff like this, I read it as surrealism, not clairvoyance.
(Spotted via Daily Kos.)
News of Clark Freshman, a former UM Law colleague now teaching at UC Hastings, that appeared in the SF Weekly: Castro Pot Bust Goes Awry and a Law Professor Threatens to Sue.
If the news story is accurate, the police got a clearly invalid warrant, either through carelessness or worse (it described the house completely inaccurately). And indeed, the raid was a bust — for the police.
The SFPD and DEA found no piles of marijuana money at 243 Diamond St., one of six addresses raided simultaneously in San Francisco that morning. Instead, they found Clark Freshman, who rents the penthouse at the two-unit building. Freshman, a UC Hastings law professor and the main consultant to the television show Lie to Me, was put into handcuffs while in his bathrobe as agents searched, despite Freshman’s insistence that they had the wrong place and were breaking the law.
He’s sort of angry:
“I told them to call the judge and get their warrant updated,” he says. “They just laughed at me — I guess that’s why they’re called pigs.”
No, he’s really angry:
[Freshman] pledged to sue until “I see [the agents'] houses sold at auction and their kids’ college tuitions taken away from them. There will not be a better litigated case this century.”
I’d be spitting mad too. Not sure I’d say that about college tuitions, though. They’re sacred.
(Thanks to Michael Marshall for the story.)