Gideon
This user hasn't shared any biographical information
Homepage: http://apublicdefender.com
Posts by Gideon
The Fourth Amendment takes the red pill
Aug 28th
And down the rabbit hole we go, with United States v. Comprehensive Drug Testing (aka the MLB steroid case). The decision brings fourth amendment and technology into version 2.0, otherwise called the digital age by essentially doing away with the plain view exception. This was issued a few days ago, but I’ve held off on posting about it mainly so I can get a sense of what the dense decision is all about. Instead, I just found myself reading the insightful posts and comments at Volokh, so that’s where I’ll direct you as well, after providing Judge Kozinski’s distillation of the holding:
When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:
1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.
2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.
3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.
4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.
5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.
Here is the entire chain of posts and I’d make sure to read the comments too. And for those of you who didn’t get the title of this post, here’s the video. The 9th Circuit is Morpheus, the Fourth Amendment is Neo and US v. CDT is the red pill. Or something like that.
[youtube]http://www.youtube.com/watch?v=te6qG4yn-Ps[/youtube]
Mom, am I really 5?
Aug 26th
Just saying, that by my very rough estimation, this blog (and its predecessor versions) is about 5 years old. Man, do I have a lot of free time.
Just saying…
What I want to know is
Aug 26th
How someone gets convicted of anything based on these facts:
On March 19, 2005, the victim had fallen asleep on the living room couch in her mother’s home. Her mother awoke her and instructed her to go upstairs to bed so that the defendant could sleep on the couch. The victim went upstairs but later went to the basement to smoke a cigarette. The defendant came to the basement, sat beside the victim on a couch and also smoked a cigarette. The victim and the defendant played a card game, and the defendant offered the victim a glass of beer, which she refused. The defendant also asked the victim if she wanted to take the drug ecstasy, which the defendant did not have in his possession, but attempted unsuccessfully to get via the telephone.
The defendant noticed a ‘‘hickey’’ on the victim’s neck and asked how she got it. The victim responded that her boyfriend had given it to her. The defendant touched the ‘‘hickey’’ and looked at the victim in a manner that she considered weird. The defendant kissed the ‘‘hickey,’’ released the victim’s bra, touched her breasts and placed his mouth on them. The defendant talked to the victim about her being his wife, marriage, children and getting a place together. The defendant also removed the victim’s pants and asked the victim for a condom, which she did not have and refused to get from upstairs. The victim asked the defendant what he was doing. The defendant assured her that it was all right, as she was his wife. The defendant removed a tampon from the victim and performed cunnilingus.
Although the victim resisted the defendant’s advances, she did not fight or try her hardest to stop him. She did not call for her mother, who was upstairs sleeping. The defendant’s sexual assault lasted approximately one-half hour. The victim then put on her clothing, went upstairs to her older sister’s bedroom and fell asleep.
Texas kills…..an innocent man? (updated)
Aug 25th
The first half of the title of this post (shamelessly plagiarized from our good friends at CapDefWeekly) should come as no surprise to anyone. Texas is a powerhouse when it comes to executions, rapidly putting people to death.
The second half of the title should also come as no surprise, though. And there’s a new report to back it up [here's a link to the actual report]. The man in question is Cameron Todd Willingham, convicted of setting fire to his house that killed his children in 1991. The new report states that Texas fire marshals had no basis to conclude that the fire was set intentionally and in all likelihood was an accident. Willingham was executed in 2004, maintaining his innocence to the end.
Among [Craig] Beyler’s key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams’ house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham’s injuries could not have been caused as he said they were.
The state fire marshal on the case, Beyler concluded in his report, had “limited understanding” of fire science. The fire marshal “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” he wrote.
The marshal’s findings, he added, “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”
And it isn’t Beyler alone. Nine of the nation’s top fire scientists reviewed the Willingham case and concluded that “the original investigators relied on outdated theories and folklore to justify the determination of arson.”
And that’s not all. There was some other evidence of his guilt: jailhouse snitch testimony. That doyen of reliable information. To paraphrase Radley Balko, junk science and a jailhouse snitch do not a reliable conviction make.
Good job Texas. Good job death penalty advocates.
This and that…and that too
Aug 24th
Links to stuff I don’t care to make into full-fledged posts:
- State to use stimulus for DNA testing: maybe now we’ll have to wait only 3 months for results.
- Study to measure effectiveness of restraining orders.
- Crime cameras on their way?
- More stories on the cost of seeking the death penalty.
- Violence is declining. What are we doing right (but don’t tell the Heritage Foundation fellows)?
Enjoy
Get off my lawn and into my jail, damn meddling kids
Aug 24th
I’m a little late in “reporting” on this, but it’s worth pointing out. The esteemed Heritage Foundation has issued a new report/study/propaganda piece/Robert Ludlum laugh-a-thon titled “Adult Times for Adult Crimes: Life Without Parole for Juvenile Killers and Violent Teens”. That title is just as long and unwieldy as some of my titles, which tells you much about the substance (hint: it’s useless).
There’s so much rhetoric in this report that misses the point of not sentencing kids to life in prison that it makes my head spin (and as a by-product, makes the report very difficult to take seriously).
Here’s a sample:
Crazy? Jail’s the place for you
Aug 23rd
This post has been a long time in the making. Over the past few months, I’ve had to deal with clients – and have observed other lawyers dealing with their clients – who have severe mental health problems. And each one of us can tell you that there’s nothing more difficult – or more heartwrenching – than coming to an appropriate resolution of a criminal case involving a defendant with mental health problems.
Not only does one have the normal problems of communicating with a person who may be hearing voices, or who may believe that he is an FBI recruit who has to save the world while the Russians are tracking him with embedded micro-chips, but one also struggles with the failings of a system that has no room for clients like that.
While I usually decry the heartlessness of prosecutors and judges on this blog, I have to say my experiences in this area have been to the contrary. While they don’t get in the way, they do join the defeaning chorus that reminds us of the futility of our efforts.
Does the automobile exception permit search of a laptop?
Aug 21st
Orin Kerr leads a discussion at Volokh.
Thursday is one day after link dump day
Aug 20th
I have tried to think of something to write about – honestly – but most of the topics out there right now are just meh, so I’m gonna take the easy way out and give you some links to click on. Some of these are stories you’ve heard about ad nauseum already and some you’ve only heard of a few times. But here they are anyway. Hey. Don’t take that attitude with me. At least I’m posting again. Ingrate.
- The Evidence Prof has a new paper on the potentially unintended consequence of Arizona v. Gant, funnily titled “Stranger than Dictum:…“
- Mike at C&F points to a fun opinion by Judge Alex “so what if I look at porn” Kozinski.
- Illinois passed a bill banning sex offenders from the whole wide world wide webs.
- There’s a blog about snitches. But don’ tell anyone.
- There’s that whole let’s see if Troy Davis might be innocent thing. Resulting from which is the bitchslap of Nino by Dershowitz.
- Apparently, Archie turned out to be nothing more than a gold digger.
- Plaxico “I’m so cool I shoot myself” Burress is now officially a member of the Cleveland Browns (or is that the Cincinnati Bungles?).
That’s all for now.
Ooo, look: a sex offender (is doing what he should)
Aug 18th
It seems as though Connecticut’s problems with its probate courts have been solved and they’re running all hunky-dory. How else can one explain the unsolicited comments by two probate judges (remember, these aren’t actual judges. In fact, they aren’t even lawyers. So I can’t dust off that old “what do you call a lawyer with an IQ of 50″ chestnut) that sex offenders are entering their building.
Except, um, their building also hosts a damn probation office where they are reporting.
Probate Judges Frank Forgione and John Keyes say sex offenders are among the clients visiting the Adult Probation Office at the State Street building.
Forgione says probation officials told him they’re making every effort to ensure children are not in danger. But the New Haven Register reports there were no guards at the probation office door or the front lobby of the building Friday afternoon.
So here’s a new rule, in this age of unbelievably stupid hysteria surrounding sex offenders: they should be banned from all places a child may conceivably go, no matter how ridiculous or far-fetched it may sound. This way, sex offenders will be banned from everywhere, including courts, jails, a street and your mind.
Don’t even go there.
We interrupt your regularly scheduled…
Aug 10th
…radio silence to bring you this update:
In the defense interview the prosecutor and the victim advocate decided to place Stilson on top of the table during the interview. It was such a surprise to the child (and the defense attorney) to see Stilson snoozing on the table that the child came out from under the table and everyone petted him during the interview. Under these circumstances the child did a much better job describing what had occurred and it was a fairly pleasant experience for everyone.
It is also less likely that a defense attorney would engage in aggressive questioning when a dog is seated or lying in between the attorney and the witness.
If the witness and facility dog have not had a previous experience together, be sure to arrange for them to have at least 45 minutes to interact and play with one another before the interview begins.
Yeah.
Dear Governor Rell: death penalty’s broke and we can’t fix it
May 22nd
Dear Governor Rell,
Hi, it’s me, Gideon. This is my second attempt at a letter to you. The last one was somewhat trivial by comparision. I hope you take the time to read this, though, as I’m sure the last one ended up quickly at the bottom of your rubbish bin.
Governor, there is a piece of paper on your desk. A piece of paper that has the power to restore humanity and dignity to our State. A piece of paper that will say to the world: “We are no longer barbaric, we are no longer uncivilized, we are no longer cruel”. A piece of paper that has the chance to shape your legacy and the legacy of our Constitution State. A piece of paper that will close an ugly chapter that is the death penalty in our State.
recent comments