Category Archives: Law: Criminal Law

Plumbing the Entrails of the Cohen Plea Deal

One of the less-minor mysteries of yesterday’s twin courtroom bombshells was the absence of a formal plea deal between Cohen and the government.  Fortunately we have expert local lawyer David Oscar Markus to explain it to us:

The parties agreed that no variance arguments can be made, up or down. This is a BIG concession by Cohen’s lawyers and is sometimes seen in the SDNY when there is cooperation credit coming. Without the cooperation credit, it’s a terrible deal for Cohen. He’s basically pleading guilty to all of the offenses and not getting anything in return other than the 3 points. If he pleaded straight up, he would at least be able to argue for a sentence under the guidelines. Even with the potential of a cooperation deal, it seems very harsh.

That’s why it’s obvious that Cohen is cooperating, even though it’s not specifically mentioned in the plea agreement. Otherwise, the deal makes no sense. He said as much during his colloquy today and his lawyer, Lanny Davis, has been all over the news saying the same thing.

If he gets cooperation credit, the defense will be asking for a significant reduction below the guidelines — probably all the way to probation.

Okay.  Now I get it. Thank you.

Posted in Law: Criminal Law, The Scandals | 3 Comments

On Testilying

Joseph Goldstein has an interesting NYT article, ‘Testilying’ by Police: A Stubborn Problem, which updates a 1994 article which introduced me to the term.

TL/DR: Lots of NY cops lie in police reports and on the stand even about behavior that was recorded on camera.

The article does, however, leave two big questions unasked and unanswered. Unanswered is why is it (as the article reports) that NY courts routinely seal the evidence of cops lying? I’d like to know, because it could be that either a rule of court or other change might help reduce or eliminate the practice.

Unasked is why doesn’t the DA’s office have a zerohttp://www.nytimes.com/1994/04/22/us/new-york-police-often-lie-under-oath-report-says.html?pagewanted=all-tolerance policy for police making false statements on official documents, not to mention in court? Here, we can guess the likely answers: First, DAs think that because they have to work with police, they dare not anger them. Second, to the (partial) extent that testilying is designed to get around that pesky 4th Amendment, the police perjury is helping put away ‘bad guys’. Even so, the DA should be put to some prevarications.

And think about what terrible reason those two hypothesized justifications are: some of the perjury is about actual elements of the offense. In those cases, by their cowardice, the DA is allowing substantial numbers of innocent people to plead to, or be convicted of, offenses they did not commit.

As to the cases where the police perjury is about probable cause, it may be true that the victims are in some moral sense guilty of the underlying offense but even so the social consequences are not worth the candle: Police perjury breeds contempt for the Constitution and legal rules on behalf of the police (and the state’s lawyers), and fuels the belief of the arrested that the law is a sham, the police a unconstrained army. (And, worse, it’s only a step from planting evidence. Which I remind you could happen to anyone.) All this is very bad for the country at the best of times, and Trump’s America is not currently enjoying the best of times when it comes to lawfulness.

The rotting of the rule of law runs both up and down.

NOTE: Paragraph 2 above lightly edited for clarity

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Cops Push Citizen Self-Surveillance in Plea Bargains

You might be tempted to dismiss NY: Police are blackmailing motorists into installing cellphone monitoring devices as an aberrant act by local cops were it not sponsored by an international firm that supplies the monitoring technology.

As far as I can tell, the enforcement authority pushing the so-called ‘Distracted Driver Education Program’ (DDEP) is local Nassau County, not the ‘feds’ as reported in the article. “Blackmailing” also isn’t the word I would choose here, but by any standard it’s a pretty ferocious plea bargain deal.

Even more worrying, the attempt to find ways to get people to pay to spy on themselves and on others for the benefit of law enforcement echos this incident, Police Demand Shop Install Surveillance, Give Cops Full Feed, and also Right to Ban Customers, that I blogged about a month ago.

This is a trend that bears watching.

Posted in Law: Criminal Law, Law: Privacy, Surveillance | Leave a comment

She Does it Again

Someone serious really needs to run against Miami-Dade State Attorney Katherine Fernández Rundle.

Prosecutors say no crime was committed in scalding death of Miami inmate:

The corrections officers who locked a schizophrenic man in a shower for nearly two hours — a shower that some inmates say was used as a means to punish unruly prisoners with blistering hot water — committed no crime, Miami-Dade State Attorney Katherine Fernández Rundle announced Friday.

The state attorney’s two-year investigation into the June 23, 2012, death of Darren Rainey at Dade Correctional Institution concluded that the officers — Sgt. John Fan Fan, Cornelius Thompson, Ronald Clarke and Edwina Williams — did not act with premeditation, malice, recklessness, ill-will, hatred or evil intent when they herded Rainey into the shower.

Uh-huh.

(Note the Friday afternoon dump to minimize news coverage.)

Update: The local New Times pulls no punches, Katherine Fernandez Rundle, Miami’s Top Prosecutor, Is a Disgrace.

Posted in Law: Criminal Law, Miami | 6 Comments

How Snowden Might Hurt Privacy

In addition to the good things Edward Snowden did by alerting us to the reality of NSA surveillance, there is one way in which I think his revelations may hurt privacy. This is not to say that on balance his revelations were unjustified, just that there’s a complexity about the long-run consequence of his disclosure that we should keep an eye on.

Before Snowden, the fact of NSA’s collection was a very highly protected secret. Consequently, there was only limited data sharing with law enforcement, and then only on condition that the fact of the NSA’s role never show up in court. Now that the cover is blown, so to speak, we should expect not only covert inter-agency data sharing to increase, but also a prohibition on letting it into court. Maybe not open court, but perhaps in a closed hearing, or secret brief. Likely beneficiaries are the DEA, the FBI, and maybe even some local cops in big target cities like New York or DC?

So, perversely, I expect Snowden’s revelations to have a limited negative consequence for privacy to balance against however we measure the positives.

Note: I could have sworn I posted something about this previously, but EPIC‘s Marc Rotenberg said he hadn’t seen it, and I couldn’t find it, so this one’s for you Marc.

Posted in Civil Liberties, Law: Criminal Law | Leave a comment

None Dare Call it Perjury?

FBI analysts gave consistently false testimony for 20 years, leading to hundreds of convictions, including at least 32 defendants sentenced to death. “Of those, 14 have been executed or died in prison.”

Yet the Washington Post manages to write an entire article about this conspiracy to pervert the course of justice without using the words “perjury” or “conspiracy”. Seems we’re calling it “flawed testimony” this year: FBI admits flaws in hair analysis over decades.

The issue is the (lack of) scientific validity and certainty of supposedly incriminating forensic evidence such as the comparison of hair samples and bite marks:

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

The findings likely scratch the surface. The FBI said as of mid-April that reviews of about 350 trial testimonies and 900 lab reports are nearly complete, with about 1,200 cases remaining.

The bureau said it is difficult to check cases before 1985, when files were computerized. It has been unable to review 700 cases because police or prosecutors did not respond to requests for information.

Also, the same FBI examiners whose work is under review taught 500 to 1,000 state and local crime lab analysts to testify in the same ways.

I suppose it is possible that in some cases the FBI examiners didn’t understand that they had been trained to lie, and in those cases it was merely a (in some cases literally fatal) denial of due process rather than perjury, due to a lack of mens rea. But surely at least some of the examiners, or the trainers, have to have known what they were doing?

Anyway, according to 18 U.S.C. § 3282, the statute of limitations for perjury is five years, and the most recent of these cases is 16 years old, so I guess everyone at the FBI is safe.

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