Author Archives: Gideon

The disparity in the criminal justice system isn’t wealth, it’s what we’re willing to stand up for

Oh justice, you sweet, schizophrenic [p]sychotic fiend. How mercurial are your ways; how confusing are your methods; how undecipherable are your goals. Yet there you stand – venerable, sexy and ultimately out-of-my-league.

For who else – and where else – would bring three stories so oddly juxtaposed? First, in Delaware, a judge sentenced a man identified as “a wealthy du Pont heir” to probation for fourth-degree rape1 reasoning that he “will not fare well” in a level 5 prison. According to the RawStory article (which leaves out significant relevant portions as seen below):

According to court records [Robert H. Richards IV] is listed at 6 feet, 4 inches tall and weighing between 250 and 276 pounds.

Court records do not cite any physical illnesses or disabilities.

Meanwhile, Digby is just as horrified as you are, but at this story of a severely mentally ill man in NY just convicted of a murder. This was his third trial. The first one was halted because he was crazy2 unstable. Don’t take my word for it: look at him.

He's the one who looks out of place. Photo belongs to NYT/Bryan R. Smith

He’s the one who looks out of place. Photo belongs to NYT/Bryan R. Smith

He brutally murdered one woman during a robbery gone bad and maimed another man. So what’s the issue?

Why warrants for everything is a good idea

My latest column for the CT Law Tribune is now available online and in print! I think. Anyway, it’s all about why we should really have search warrants for everything digital. It exhorts our courts (unlikely) and our legislature (slightly less unlikely) to mandate warrants for all searches of cell phones and digital/online data like emails and social media and to do away with the “search incident to arrest” exception to that warrant requirement.

What the column doesn’t address, because I didn’t have the time, was the fact that even when warrants are required they are overly broad. Meaning the government will look at everything in your phone and there’s nothing to tell them they can’t. If I’d had the time, I’d have expanded my column to include a section on making the plain view doctrine inapplicable to digital-era searches, just like Orin Kerr argues here [PDF]. But I didn’t so I didn’t and now I am.

Now stop wondering and go read.

Monday Morning Jumpstart

You beft watch it with that drunkenneff.

You beft watch it with that drunkenneff. Image via.

So I lied last week when I said that the jump start won’t be back for a while. Truth is I got busy. So instead of writing anything substantive, I’m gonna throw links at you and hope you don’t notice the emptiness of my soul.

 

Grand juries, search warrants, revenge porn – oh, my, or: today at the legislature

For a short session of the legislature, there sure have been a large number of criminal justice bills already raised and considered by some committees. Today is no different, with a large number of “groundbreaking” bills being considered by the Judiciary committee. The public defender’s office and the CT Criminal Defense Lawyers Association have submitted written testimony on some or all of these bills1. What follows is what my testimony would be if they’d let me into the Capitol after that one time with the monkey and the backscratcher.

The Investigative Subpoena One Person Grand Jury Reform Bill

S.B. No. 488 (RAISED) AN ACT CONCERNING GRAND JURY REFORM. (JUD)

A perennial favorite of prosecutors, this bill has made its way back to the legislature. Year after year they bring up this bill, seeking to give themselves the power to just subpoena whoever and whatever to their office to conduct their investigations. Year after year this bill is defeated. But you gotta hand it to them, they keep trying.

And this iteration is slightly different. Instead of seeking to give themselves the power, they vest it in a “one person grand jury” – the presiding judge of the judicial district courthouse.

The rest of the shit is the same. As I wrote extensively last year, their standard for issuing subpeonas is the lowest, most nebulous, undefined piece of nonsense I’ve ever seen: the interests of justice.

What does that mean? Nothing. It’s not a real thing. It’s a free pass. The bill explicitly removes a requirement of probable cause and replaces it with this interest of justice nonsense.

What’s worse is that there’s no limitation on when the investigative grand jury can be used. Under the law as it existed, the State’s Attorney had to make a showing that they’d made an effort using normal investigative tools. They have to show that their regular methods weren’t working and they needed this invasive tool to make one last ditch effort at cracking a case. If they hadn’t tried their normal methods, they had to include a statement saying why. In other words, accountability.

This proposal does away with that and replaces it with the sort of investigative subpoenas that are coercive and dangerous.

But go ahead, keep trusting the State to do its business in secret. That’s never backfired on us.

george-costanza-couch

The “revenge porn” bill

S.B. No. 489 (RAISED) AN ACT CONCERNING UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE OF ANOTHER PERSON. (JUD)

This is the bill that seeks to specifically criminalize the act of taking a nude photograph of a person who you were once intimate with and distributing that photograph on the internet without their permission.

Let’s be clear: it’s a totally douchey thing to do. It’s violative of someone’s trust and makes you out to be a complete asshole.

But is it a crime? Should it be a crime? Can it be a crime? These are the important questions.

As I understand it (and you really should read this post by Mark Bennett for a complete deconstruction of its unconstitutionality), a picture is speech. So when a picture is made public and the government seeks to put restrictions on it, it becomes a question of the Freedom of Speech which implicates the First Amendment.

As Mark explains, the bills don’t seek to criminalize all pictures posted, only pictures posted that meet certain criteria: nudity, non-consensual.

That’s a content-based restriction: you’re restricting speech based on the content of it. For example, in 2010 in U.S. v. Stevens, the Supreme Court refused to find that “crush videos”2 were illegal.

But let us assume, for the purposes of this post, that “revenge porn” should and can be criminalized.3 What would a bill look like? CT’s proposal is:

(a) A person is guilty of unlawful dissemination of an intimate image when, with the intent to harass, annoy, alarm or terrorize another person, such person electronically disseminates, without the consent of such other person, a photograph, film, videotape or other recorded image of (1) the genitals, pubic area or buttocks of such other person, or the breast of such other person who is female with less than a fully opaque covering of any portion of such breast below the top of the nipple, or (2) such other person engaged in sexual intercourse, as defined in section 53a-193 of the general statutes.

I’m just going to list the problems with this in bullet format, because it’ll be easier:

  • The “Intent to annoy” language. That’s exceedingly vague and a terribly low standard that’s so variable dependent on the person being so “annoyed”. Your face is annoying to me. Are you a criminal now?
  • “Electronically disseminates”. The bill seeks to criminalize electronic dissemination but nowhere defines that. What if I show the picture to my dying brother in the hospital room? What if I post it on a flyer on a lamppost outside my house?
  • “The genitals, pubic area or buttocks” apparently don’t need to be naked. So I can take a picture of your fat ass as you bend over to pick up a McFry and put it on the internet and now I have to go to jail because you have low self-esteem.
  • This might already exist. Here’s “Breach of Peace in the 2nd Degree“, which states, in relevant part: (a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person. Doesn’t that hit every note on the revenge porn bill? Why do we need a separate one again?4

The Search Warrant That Tracks Your Movement and Gets Your Email and Social Media

H.B. No. 5587 (RAISED) AN ACT CONCERNING SEARCH WARRANTS. (JUD)

It’s innocuously named, but it covers a wide swathe and is important also for what it doesn’t cover. Primarily, the bill purports to bring into line our statutes to comply with two cases: U.S. v. Jones (the GPS case) and State v. Esarey (a case about out of state warrants for email). Also, this bill has nothing to do with the scope of search warrants for the search of your cell phone. That’s the subject of an upcoming column.

As for the GPS. the bill states that police can seek a warrant if they believe that “probable cause to believe that a criminal offense has been, is being, or will be committed and that the use of a tracking device will yield evidence of the commission of that offense”.

So almost immediately we hit upon the first problem: how will a tracking device provide evidence of a crime that has already been committed? Because the warrant seeks to authorize the attachment of a device that tracks the movement of a person or object. So unless that movement in the future (for up to 30 days – another problem with the length of time) corroborates a crime in the past, I see that portion as problematic.

Next, the scope. As it currently stands, there is no limitation on the scope of the data collected and what it can be used for. For example, if the warrant states that the data is being sought to prosecute a high-level drug trafficker and the data shows that the suspect was at the residence of his girlfriend, who has a protective order against him, can the information be used to prosecute him for that? Just like warrants for the searches of homes are very specific as to what can be sought and seized, so should any warrant for this “tracking data”.

If not, doesn’t it become closer to those general warrants the founding fathers of our country so hated?

Speaking of general warrants, the other part of the bill that seeks to address State v. Esarey also succumbs to the same problem. The section incorporates the warrant requirement discussed above and applies it to out of state providers of data “or business entity that provides electronic communication services or remote computing services to the public”. In other words, your email providers and Facebook and Twitter.

Now imagine that: the police believe that you are about to commit a crime, so they get a judge to issue a warrant for your emails. As we’ve already discussed above, with a lack of particularity requirement in the statute, they get everything. EVERYTHING. All your emails.

Who’s to say they can’t read your emails and go on fishing expeditions to find other things that may be evidence of other crimes? Who’s to say they can read your emails and try to find crimes to fit what they see?

Worse, notice isn’t immediate, so you can’t move to quash the subpoena in time or file a motion seeking to limit its scope. The statute says that they have to let you know within 48 hours, but the company has only 5 days to provide all that data. There’s no provision that says they have to turn over the data unless there’s a motion to quash filed.

The Wiretapping/Eavesdropping Bills

S.B. No. 487 (RAISED) AN ACT CONCERNING THE RECORDING OF TELEPHONIC COMMUNICATIONS. (JUD)

This is one strange bill. Not by itself. By itself it’s a “revision” to the eavesdropping statute. It states that no one shall record a private telephonic conversation without alerting the other party in various ways and obtaining that party’s consent. It then lays out various exceptions, including ones for law enforcement and:

(4) Any party who records a telephonic communication, provided the intent of the recording is to memorialize evidence of a crime before, during or after the fact and the unaltered and undisclosed recording must have been submitted to law enforcement within a reasonable amount of time;

One of the exceptions is also the corporation that provides these telephone services as defined in C.G.S. 53a-187(a)(1). This is important when you combine this bill with the next; it becomes a little confusing as to its purpose.

H.B. No. 5585 (RAISED) AN ACT CONCERNING SURVEILLANCE OF CELL PHONE COMMUNICATION BY LAW ENFORCEMENT OFFICIALS. (JUD)

Remember that 53a-187 I just cited above? This one makes changes to that bill. And the change is good, but it’s still a bit confusing in context. The change essentially is that the exception to unlawful wiretapping doesn’t apply to law enforcement acting in the scope of their duties. “Scope of their duties” is amended to now include:

when such official (1) has probable cause to believe that the cellular radio telephone has been used in furtherance of the commission of a crime and has obtained a search warrant that authorizes wiretapping of the cellular radio telephone, or (2) is otherwise authorized by state or federal law to engage in wiretapping of the cellular radio telephone.

There is, of course, already a whole set of wiretapping statutes (54-41a-41u) which aren’t mentioned anywhere.

So I’m confused. Why did we need the previous bill? What does this do? What do any of them do to the actual wiretapping statute?

More importantly, why was this necessary? What are we trying to fix? Is there a problem of law enforcement listening to conversations without warrants and/or PC and if so, why haven’t we heard about it?

Now you know. Call your legislator.

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Monday Morning Jumpstart

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That’s right. It’s back. For this week. See you in a month. Now, here’s something to read while you drink coffee.

In disregarding FOIA laws, CT lege has assistance from police departments

For a State that bills itself the Constitution state, Connecticut sure is running into a lot of problems with the First Amendment and Freedom of Information Laws, which seek to make government transparent.

First, the legislature, in a midnight session behind closed doors severely restricted FOI access in the wake of the Sandy Hook shooting. Then there were the disingenuous arguments by the state’s attorney to keep 911 calls private, and finally a new task force that’s further scaling back the FOIA public access provisions.

But yesterday, a tremendous investigative reporting project by the New Haven Register and associated newspapers concluded that most police departments in Connecticut are doing a terrible job of complying with FOIA laws by failing to release information to the public:

Under state Freedom of Information law, the record of arrest is public information. This means the name and address of the person arrested, the date, time and place of the arrest and the offense, and at least one of the following designated by the law enforcement agency: the arrest report, the incident report, news release or other similar report of an arrest.

The law also calls police records public records, with some exemptions: the identity of informants, signed statements of witnesses, information which would be prejudicial to a law enforcement action, investigatory techniques not known to the general public, juvenile arrest records, the identity of a sexual assault victim and uncorroborated allegations.

So, of all of these, what were they able to get?

State police troops typically got a B– range by providing arrest logs, but refusing to give detailed reports out. Troop G, however, didn’t even give an arrest log during a compliance check, so it was the only state police troop to get an F.  “That’s impossible,” state police spokesman Lt. J. Paul Vance said, when told our reporter got no information at Troop G. “Arrest logs and press releases are available to anyone in the lobby.”

Twenty-six departments got an A– rating, for both providing an arrest log and an in-depth report, though these sometimes asked for our identity, or don’t provide information online.  Overall, about 25 percent of police departments got a score in the A range.

Another 61 departments or troops, or about 59 percent of them, got a rating in the B range. These departments typically gave an arrest log, but weren’t forthcoming with in-depth reports.

Seven departments scored in the C range, such as Bristol, where they claimed FOI law prohibits them from releasing police reports on arrests until a case is adjudicated in court.  We gave out two D grades and six F grades.

Therefore, 15 percent of departments or troops scored a C+ or under.

Why, exactly, is this important, you ask? Because this is watching those that purport to protect us and have the power to change our lives drastically. Everything that police departments do should be open to public scrutiny so we can determine whether they are, indeed, serving the public or engaged in racially discriminatory tactics.

Wednesday is link dump day

Mo’ Wednesday, Mo’ Links!

  • The city of Waterloo, Iowa has an expanded rental inspection program that requires landlords to open their tenants’ apartments to HA officials, in complete disregard for the Fourth Amendment.
  • London’s massive CCTV network, blanketing every part of the city, solved only one crime last year.
  • A NYT op-ed against mandatory-minimum sentences for gun offenses.
  • Marco Randazza has a must read piece at his blog on Section 230 that provides immunity to people like me from comments left by idiots like you.
  • Dan Klau at Appealingly Brief writes about whether Michael Skakel is a public figure.
  • The DOJ is seeking to prevent [PDF] Dzokhar Tsarnaev from viewing autopsy photos in his case.
  • There still are plans for a national license-plate tracking database.
  • Eugene Volokh has this interesting post on the First Amendment right to access judicial proceedings.
  • Australia’s Attorney General wants a new law that forces people suspected of computer crimes to turn over passwords and decryption keys.
  • Scott Greenfield writes about the study by Judge Mark W. Bennett on allocution by defendants and what it should look like. As you can guess, it ain’t pretty.
  • Garrett Epps at The Atlantic tells people to back up off of Justice Ginsburg and let her retire whenever the hell she damn well wants to.
  • MoJo has this piece on a new report that documents 650 instances of professional misconduct by DOJ prosecutors, judges and other officials in a 12-year period.
  • The AP has this article on the AZ case of death row convict Richard Hurles, his claim of bias against the judge who presided over his case and the fourteen times that SCOTUS has continued deciding whether to accept it.
  • A federal judge in Los Angeles has blasted the ATF for their fake sting operations that entrap lots of people.
  • Somewhat tongue in cheek, this piece at The Atlantic wonders where the logical conclusion of the Snowden opposition lies: keeping the Fourth Amendment secret.
  • Federal drug prosecutions have fallen to 14 year lows.
  • As Radley Balko writes, there’s an absurd bill in Kansas that would make it a felony to make a false report of police misconduct. Guess who gets to decide if a report of police misconduct is true or false.
  • Meanwhile, the legislature in CT is considering a bill that would strengthen the rights of citizens to file complaints against police officers and get departments to take the complaints seriously.