jumpstart

This is certainly an odd week to be hosting the MLK Day edition of Blawg Review and almost all of it has to do with the events in Arizona, late last week. There will be much written tomorrow, juxtaposing the powerful non-violent philosophy employed by Dr. King with the all-too-violent assault on democracy in Tuscon. I will attempt to supplement this post throughout the day tomorrow as posts are written and published. A reminder, as in years past (#91, #143, #247), that it is incredibly difficult to find a unifying theme for a Blawg Review such as this, so the topics and posts below aren’t specifically linked to any neat idea, but merely a clustering to bring a semblance of coherence to my usual ramblings.

Being fully cognizant of Dr. King’s approach to life and his likely frowning upon my taking joy in the misery of others, I’ll give you the first link of this edition of BR before I get to Dr. King and his legacy:

Tom DeLay, welcome to the receiving end of your policies:

The system has eaten one of it’s own. The Hammer got 3 to do, and 5 for 10. The same tuff on crime ethos that Tom championed for years has finally bitten him in the ass. Here’s newly minted felon, Tom DeLay, on crime

Robert Guest, proceeding to list all the “smart on crime” bills and initiatives DeLay voted against. Okay, now that I’ve gotten that out of my system, onto the serious stuff.

From the “We Really Should Pay Attention to Dr. King’s Message Again” category:

Violence as a strategy for social change in America is nonexistent. All the sound and fury seems but the posturing of cowards whose bold talk produces no action and signifies nothing.

Dr. King, writing in 1966. Never have those words seemed more relevant than this week. All of you know the story by now, so I won’t bore you with details, but maybe the close temporal proximity of these two events is just what the country needs to get a grip on its increasingly vitriolic hyperbole in political debate.

But more than mourning the loss of the abstract concept of civil discourse, it would serve us well to mourn the loss of six lives, among them a promising 9 year old and a reputable public servant. Chief Justice John Roberts issued this statement:

Chief Judge John Roll was a wise jurist who selflessly served Arizona and the nation with great distinction, as attorney and judge, for more than 35 years…Chief Judge Roll’s death is a somber reminder of the importance of the rule of law and the sacrifices of those who work to secure it.

Judge Roll, an advocate for greater resources for the courts, had been the subject of threats in the past, a trend that seems to be rising. Although not a traditional “blawg”, Garrett Epps, writing at the Atlantic, has this terrific post on the Giffords shooting and the impact that SCOTUS’ decisions in Heller and McDonald have had on further enshrining guns and gun culture into our society:

I’m not saying, either, that the Court should “change” the Second Amendment if the Justices think it has bad consequences; I am saying that in every new legal question, every new claim for definition of a constitutional right, there is and must be a heavy dose of practical analysis as well as historical learning and textual parsing. There were no Glocks and no 33-round magazines in 1789; there were few crowded cities, no drug problems, and no massive firearms industry pumping out new weapons. Applying the “right to bear arms” to these new weapons and new situations really does require careful balancing.

This may be wishful thinking. My salient intellectual flaw is optimism; I like to think that judges, even those I disagree with, are in fact judges, who recognize that law must be applied to facts. It may be that this Court includes ideologues who, like the Bourbons of France, have learned nothing and forgotten nothing. But there may not be five of them.

I also like to think that constitutional law can recognize the special place of guns in American history while also making it less likely that judges, legislators, and nine-year-old girls will be gunned down if they go to the supermarket. Every extension of gun rights by the Court–and every thump of the formalist tub about the fundamental right to a Speedloader–convinces people more fully that it’s normal and sustainable to live a society where the strange guy in the taxi is carrying a Glock and 90 bullets.

The evidence is pretty clear that it is not.

It seems that the shooting has also spurred an interesting debate on the role of the First Amendment and there, it seems, has been some talk on how to curb vitriolic speech. Eoin O’Dell has a collection of the coverage and offers his own thoughts. Interestingly enough, during that bizarre show on the floor of the house where the Constitution was read – for hours – it was Rep. Giffords who read out portions of the First Amendment (and do you know how much restraint it took not to make a Sad Boehner joke?):

On a similar note, Rick Horowitz writes today about freedom and why that’s not what’s killing people. Speaking of freedom, John Green, father of slain 9-year old Christina Green, has this exceptional quote, via Popehat who recognizes the strength of character of Mr. Green:

This shouldn’t happen in this country, or anywhere else, but in a free society, we’re going to be subject to people like this. I prefer this to the alternative.

It seems, though, that while Mr. Green and many others get the concept of freedom in order to maintain a strong society, the government does not. Remember the Patriot Act? It’s still out there, steelin yor liberteez, and it has come time for yet another perfunctory extension without any debate, national or otherwise.

Of course, since this is a blog about criminal law, I would be remiss to not end this section with a note about Loughner’s lawyer, Judy Clarke. Eric Turkewitz mentioned her in his post on the heroes of the Arizona massacre, reminding us to celebrate the defense lawyer:

Why celebrate the defense lawyer? Because here is a person that will:
* Represent a hated individual;
* Receive death threats from other wackos out there;
* Be outgunned by the Department of Justice;
* And move from a private practice in Southern California to Arizona in order to do it, and do it for public dollars as opposed to more lucrative private ones.

Here’s a detailed bio of Judy Clarke and here’s another. Jon Katz writes about Judy Clarke and calls her his “personal hero”.

And while we’re on the broad subject of a free and open society, let us not forget Julian Assange and the ongoing Wikileaks saga. Earlier this week, a Wikileaks volunteer was detained at an American airport, attempting to re-enter the country after a vacation. He tweeted his experience, and this one in particular made me smirk:

probably because they've never seen one before

Twitter, incidentally, had been the recipient of subpoenas ordering the release of information related to the accounts of Wikileaks supporters and Julian Assange. As this Wired piece cleverly states, Twitter beta-tested a new feature without telling anyone: a spine. That’s because the subpoena was accompanied by an apparently standard gag order, preventing Twitter from revealing the fact of the subpoena even to those who account information was sought:

To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets their data was being requested, giving them time to try and quash the order themselves.

Scott Greenfield took note, writing favorably about the actions of Twitter’s legal counsel, Alexander Macgillivray:

There isn’t a criminal law specialist at major law firm in this country who would have advised this fledgling behemoth to fight the government.  There isn’t a former associate fed into the corporate counsel system who would have stood tall.  Despite the inability to offer straight advice at almost any other juncture, on their they would universally agree:  Don’t piss off the government to save someone else’s butt.  Not one.  Well, maybe one.

Alexander Macgillivray must not have gotten the memo.  Instead of stepping onto the slippery slope of government obsequiousness and risk aversion,   What was he thinking?  Princeton and Harvard Law educated, with some Silicon Valley law firm time behind him before he jumped to Google, then Twitter, one might expect him to toe the line, know his place, advise his enterprise to not make waves.

Instead, he took a stand and protected the privacy of twitter users.

Glenn Greenwald has more, including a copy of the order. Finally, Antonin Pribetic wrote an excellent post on the thorny issue of just who has personal jurisdiction over Julian Assange and also in the same post has a great roundup of the latest legal angles in the Assange saga.

From the “I don’t think you understand who Dr. King was” category: this week Jeh C. Johnson, the Defense Department’s general counsel had this to say:

I believe that if Dr. King were alive today, he would recognize that we live in a complicated world, and that our nation’s military should not and cannot lay down its arms and leave the American people vulnerable to terrorist attack.

Yep, that’s exactly what he said in this speech:

If we assume that life is worth living and that man has a right to survive, then we must find an alternative to war. In a day when vehicles hurtle through outer space and guided ballistic missiles carve highways of death through the stratosphere, no nation can claim victory in war. A so-called limited war will leave little more than a calamitous legacy of human suffering, political turmoil, and spiritual disillusionment. A world war – God forbid! – will leave only smoldering ashes as a mute testimony of a human race whose folly led inexorably to ultimate death.

Yes. One is just like the other. And because no post here at “APD” would be complete without many, many videos, here’s the powerful voice of Dr. King:

From the “These Were Your Rights; Remember Them Well” category: Radley Balko has this write up on oral argument [Orin Kerr provides his thoughts here] before SCOTUS in Kentucky v. King, a case that will further erode decide the scope of the “exigent circumstances” exception to the Fourth Amendment. CrimLaw has this listing of all the pending criminal justice related cases in the Supreme Court and boy are there a lot of rights hanging in the balance.

David “Hollywood” Feige linked to this NYT story about the tortured (and profitable) bail process in New York, which often leads to the exact opposite of what bail is supposed to do: disenfranchising the poor further and leading them to be locked up, rather than free:

Vague laws and insufficient oversight have allowed some bondsmen in New York to return defendants to jail for questionable or unspecified reasons, and then withhold thousands of dollars to which they may not be entitled, according to lawyers, judges, state regulators and even some bondsmen.

Those cases turn the system on its head: Those who are supposed to give poor defendants a shot at freedom while their cases are pending are instead the ones locking them up and disenfranchising them further.

The Agitator, again, writing about the story of a botched DEA raid in the Hudson Valley, where the federal agents broke into and terrorized the occupants of the wrong home. This wasn’t a “may we enter your home and poke around?” raid. This was a “we’re going to make your 8th grade daughter vomit and faint” raid:

The officers were screaming for someone named Michael, McKay said. When he tried to explain that no one named Michael lived at the house, McKay said the police pulled him outside his home in his underwear in the freezing cold.

McKay said officers yanked his eighth-grade daughter out of her bed at gunpoint. The girl later vomited, fainted and had an asthma attack.

Don’t you feel safe now?

Scott Greenfield writes about a decision by the Texas Court of Criminal Appeals that effectively ends litigation on the constitutionality of the death penalty:

In the case of John Edward Green, in whose name all of this is happening for the benefit of the rest of us as well as him, a trial will be had.  During the trial, issues may be raised about the quality and validity of the evidence being used to convict him.  Those issues will be constrained by the concepts of materiality and relevance.  That’s how evidence works.

Should Green be convicted of murder, the death penalty will be the focus of punishment.  By then, however, the questions of whether a person can be constitutionally put to death based on crap evidence will be moot because he’s already been convicted of the crime.

The Texas Court of Appeals says that the issues that were being raised and presented to Judge Fine could be resolved at “the appropriate time.”  They say this knowing that there will never be an appropriate time.  Case closed.

This is not Mark Bennett. Neither is this MLK, Jr.

From the “While We’re on Texas” category: the big story setting the blawgosphere ablaze this week was started by Mark “Texas Tornado” Bennett, writing about a change proposed by the Texas Bar that would make flat fees refundable to clients:

The State Bar’s position—or, more accurately (as I shall discuss tomorrow) the position of some nonpracticing ethics experts, which they haven’t yet managed to get any court to sign off on—is that a) until representation is complete, a fee may be refundable; b) if a fee may be refundable, it is unearned; and c) if a fee is unearned or may be refundable, it belongs to the client.

In order for the State Bar to be right about generations of Texas criminal-defense lawyers acting unethically, they must be right on all three propositions. If any of the three is untrue, the State Bar’s position fails. They are wrong on all three propositions.

He concludes with these chilling words:

Society needs criminal-defense lawyers. Forbidding flat fees in Texas criminal cases will be the beginning of the end of the criminal-defense bar: when the private criminal-defense bar is eviscerated, the existence of any criminal-defense bar will “depend on the largesse of the government. The day they cut off the fee spigot, there will be no more criminal defense lawyers.“

That quote is from this post written by Greenfield:

No decent criminal defense lawyer can live with himself if he’s not doing right by his client.  We fight because it’s a fight that needs to be made.  We compromise because it’s in the client’s best interest.  We can do this because money isn’t in issue; we are not in a conflict with our client.  This will change.

Just at the moment in their life when they need us most, legal fees will prove an impenetrable divide between lawyer and client.  They owe it and they don’t have it.  We are forced to choose whether to work for free or hurt a client.  This is an untenable situation.  This situation cannot happen without undermining our purpose for being lawyers.  Worse still, they don’t necessarily mean to stiff us on the fee, yet you can’t get blood from a rock.  The lawyer gets screwed and has to eat the loss.

With that as a future, who would want to practice criminal defense?

Paul Kennedy, also a Texas criminal law practitioner, joins Bennett in lamenting this proposed rule change:

We don’t bill by the hour. We bill for our service. A prospective client either agrees to pay our fee or they find someone else who will charge less. I charge a flat fee for DWI defense. While I have a good idea of what needs to be done on the case, I don’t know going in how much time I’m going to have to spend working on it. How much discovery is there going to be? Witness interviews? Pretrial motions? It’s not practical on a criminal case to call your client up and tell them they need to bring in more money because the case has gotten more complicated than you first estimated. Most of our clients don’t have the money.

We are also bound by our ethical obligations to provide a vigorous defense. But what if a client can’t ante up halfway through a case? It would put both the attorney and the client in untenable positions.The basis of a criminal representation is the relationship between the attorney and the client — let financial issues get in the middle of that relationship and something’s got to break.

Brian Tannebaum, writing from the cozy confines of Florida, reminds us that we all need to be paying attention:

I am a Bar-type. I mill around those Bar committees in my khakis and blue shirts (no-tie) while the masses of civil lawyers in suits with briefcases tagged with their initials in gold who “tolerate” us, cast us off as part of the problem in the profession – disregarding that their precious billable hour is the definition of fraud. I am a Bar-type, I pay my own way to meeting after meeting, speaking up when I hear our criminal defense bar maligned, and constantly trying to convince my colleagues there is a good answer to “why do you go to all these meetings?” They all think I’m doing it for my resume, or some judicial aspiration, and are still wondering why after 16 years, neither has been true.

Until the criminal defense bar infiltrates state bars, gets on every committee, and participates at the same table as the manicured civil bar, we will continue to beg for our constitutionally mandated existence.

apparently this is real

From the “While We’re On Lawyers” category: Lawyers, law schools and the legal profession have been much in the news in the past week, starting with the sad-yet-comical story in the NYT about the grads who have $250,000 in debt and are unable to get a job at the local McDonald’s. Jamison Koehler writes this magnum opus on the subject, which I can best classify as tl;dr. This was quickly followed by the news that the ABA is considering making the LSAT optional. Writes The Legal Satyricon:

Ultimately, the LSAT will still be the best predictor of law school aptitude, even if an objectively bad one, but allow schools to admit more subjectively interesting candidates without this admissions priority being reflected in its LSAT or GPA reporting.  The same kind of Worldcom-style accounting that controls employment reporting for law schools will come to its admissions statistics as well.  Beyond defeating the utility of sites like lawschoolnumbers.com, this decision would make admissions a black box process at schools that choose to go along with it.

By obfuscating student quality, the employment prospects all but 5-10 elite schools would suffer, as employers would not be sure just what quality of students they were getting.  While a law school has time to pay its recent graduates $8/hour to sift through applicants who couldn’t be bothered to take the LSAT and find the touchiest, feeliest application of them all, a law firm does not have that luxury.  Nor does it want to.  The best thing a lawyer can have is information, and for law schools to deprive employers of that vital resource is a disservice to its students.  Nobody, rationally, would buy something of unknown contents or quality.

The Legal Ethics Forum has more, as does the Law Librarian Blog.

okay, I couldn't resist

From the “These Didn’t Fit Within My Loosely Defined Categories” category:

• Ohio man charged with having sex with a corpse that he didn’t realize was actually a corpse.
• The Amy Chua brouhaha.
• SCOTUS “punts” on issue of unanimous juries.
• Paul B. Kennedy writes about putting an end to criminalizing school discipline.
• Gamso weaves together disparate threads to write about the Constitution, race and Huckleberry Finn.
• Mirriam “the best criminal law blogger in the country” Seddiq writes about a VA Supreme Court decision effectively invalidating Padilla v. Kentucky.
• Of particular interest to criminal defense practitioners should be the cert grants in these two ineffective assistance of counsel cases.

From the “Because Everyone Should See This Once” category:

From the “Because We Can’t End On Such Silliness” category:

MLK, Jr. day posts from around the ‘sphere:

• I’ll add them as and when you write them.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

You know the drill:

• A 6-minute verdict in a capital felony trial.
• Ex-offenders want a seat at the funding table.
• 9th circuit okays use of taser on pregnant woman.
• MD venireperson brings lawyer to “failure to appear” hearing.
• 10 rules for dealing with the police.
• Judge Jack Weinstein is at it again. This time, electronic monitoring is unconstitutional.
• An OLR report on the number of people currently incarcerated in CT for non-violent crimes [about 63% of the prison population].
• Every time a killer is sentenced to die, a school closes.
• David Mamet gives tips on how to engage your jury (sort of).
• SCOTUS hears oral argument today on the manifest necessity of double jeopardy. (More here.)

Now, back to work you lot.

“I have decided to stick with love. Hate is too great a burden to bear.”

Welcome to the Martin Luther King, Jr. Day edition of Blawg Review. This is the third Blawg Review hosted by those of us in the public defense field (BR #91 and BR#143 being the others). It is an honor to represent the essence of Dr. King’s message on this day, even in the insular world of blawgs and blawging.

There is no discernible method to this week’s Blawg Review madness. As is the case with these specific themed editions, it is difficult to fit the square peg of varied blawg posts into the round hole of the topic. So the posts are sort of loosely grouped around some worthy quotes of Dr. King, but don’t look for guidance as to their unifying theme in the quotes themselves. Instead, read the Review as a free flowing conversation I’m having with myself (and you). It’ll make the experience less painful.

Before we get to the meat of the Review, a few stories revolving around Dr. King and his memory:

James Bain spent 35 years in Florida’s prisons for a crime. A crime he did not commit. And now, he has been invited to ring the Liberty Bell in Philadelphia on Martin Luther King Day:

“It’s fitting that he has been chosen to ring the Liberty Bell,” said Seth Miller, executive director of the Innocence Project of Florida. “For 35 years of wrongful incarceration, Jamie exhibited the strength and perseverance that is the embodiment of the struggle for liberty which was central to Dr. Martin Luther King Jr.’s mission.”

Speaking of Dr. King himself, it is no secret that aside from being one of the nation’s foremost “freedom fighters”, he was also viewed very suspiciously by many: white supremacists, segregationists and even the FBI.

J. Edgar Hoover was damn near obsessed with Dr. King. The FBI is reputed to have a  massive dossier on Dr. King, only 200 or so pages of which are public. Now, Sen. Kerry of MA is spearheading efforts to make public the remaining 16,000 or so pages on Dr. King in the FBI files:

The bill calls for creating a Martin Luther King Records Collection at the National Archives that would include all government records related to King. The bill also would create a five-member independent review board that would identify and make public all documents from agencies including the FBI.

As always, I will update this post throughout the day on Monday to reflect the many MLK related posts around the blawgosphere, so keep coming back! If Twitter’s your thing, you can get in on the act there, too.

“Life’s most persistent and urgent question is, ‘What are you doing for others?”

help as you can

This powerful quote attributed to Dr. King is versatile and can serve many purposes. It can remind us to be better people, to engage in public service and to help others who are not as fortunate. Never has that been more important than this week, with the devastation in Haiti. With so many dead and so many more lives destroyed, we must put into action Dr. King’s quote in its most literal sense and do something for those in Haiti.

As with most readers of Blawg Review, we here at this blawg are lawyers and so don’t possess those skills that are immediately necessary in a relief effort like that currently underway. But there are still things that are needed, and needed now, as the lack of resources and relief is already leading to violence. Google has set up this page with information about the relief effort, ways to help and donate and other tools. Take a minute out of your day and do something for someone else.

“Of all the forms of inequality, injustice in health care is the most shocking and inhumane”

The topic that has dominated the national consciousness for the last few months has been health care reform. Universal health-care, single-payer, opt-in, opt-out, triple lindy, oh my. The long, tortured saga of HCR took an interesting turn this week with the suddenly tight congressional race in Mass to pick a successor for Ted Kennedy. Martha Coakley, the Democrat and AG of Mass., is suddenly facing stiff competition from Scott Brown, a Republican. By some accounts, a Republican win would result in a loss of one Dem seat, reducing their number to 59 and thus spelling a death-knell for HCR. Others, however, don’t see it this way.

What the story has done, however, has brought some national attention to Coakley’s record as a prosecutor, specifically in her dealing with the Amirault/Fells Acre sex abuse cases. Balko writes again, mystified by the justifications offered in support of Coakley’s witch hunts. Walter Olson provides us with a video of John Stossel investigating the Fells Acre prosecutions and convictions (be sure to see Stossel’s reaction at the 6:07 mark):

Speaking of Attorneys General, whimsical CT law blogger Ryan McKeen stirred up a hornet’s nest this week when he asked if current Secretary of State and Gubernatorial Attorney General candidate Susan Bysiewicz was actually qualified for the position (the answer: it depends). In a rather refreshing and surprising move, SOTS Bysiewicz chose to respond with a post on Ryan’s blog.

“Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity”

We live in the Facebook and Twitter era, where everything is open and everything you write could, ostensibly, belong to everyone but you. Some, like Twitter, go about it openly, and others, like Facebook, sneak it up on you like the mother-in-law that arrives for a week and stays forever.

So when Facebook CEO Mark Zuckerberg tries to backtrack and plead that Facebook is merely keeping up with the times rather than forging a path ahead on the dilution of privacy, it is only natural for people to snicker.

Homelessness is another issue that deserves attention in this country. What with the economy in the crapper, growing numbers of people going in and out of jail and a distinct lack of resources for those who need them, the population of those who call the streets their home is rising. This week brings us two distinct takes on the problem of homelessness.

First you get to hear a podcast by Bob Ambrogi and J. Craig Williams as they interview the founder of the Homeless Court Program and executive director of the National Law Center on Homelessness and Poverty. Second, we have proposed legislation in Florida, via the 13th juror, that seeks to make attacks against the homeless a hate crime:

Senate and House committees approved legislation that would make prejudice-driven attacks against the homeless a hate crime, meaning longer jail sentences for offenders. The issue will get more consideration during the legislative session, which starts March 2.

Florida has led the nation for four consecutive years in violent attacks against the homeless with 30 such incidents in 2008.

Brian Cuban has an interesting and lengthy post discussing whether the obviously stupid comment above is actually protected by the First Amendment and reminds us all (specially the younger among us) of the dangers of posting thoughtless comments on the everlasting internets:

This is certainly hate speech.  Did Rachel break any laws?  Interesting question. If Rachel had simply tweeted to the Twitter universe I would argue that no laws were broken and she had 1st Amendment protection for her speech.

Rachel however tweeted to another individual with a Twitter account. This adds a different type of context and new questions.  Was there any further act between Rachel and this person in furtherance of her desire to “Kill Jews” such as meeting to discuss it?  If the answer is yes,  there is an argument that laws regarding solicitation and conspiracy would come into play.  Did the individual respond with any tweet?  I do not know. What if this individual tweeted back, “Lets do it! Meet you in 5 Minutes!” ( I have no reason to believe this person tweeted anything back at all-it is a hypothetical).

What if the desire to “Kill Jews” was re-tweeted to someone who took Rachel seriously and actually committed a murder?  These are the problems of “Hate 2.0? that have not yet been addressed by our courts.  The  new laws of “imminence” in a viral world.

Some of the curmudgeonly among us are still struggling to adapt to this new-fangled internet and cell phone technology. Some have already recognized the dangers of texting, sexting and drive (not all at the same time and certainly not the latter two) and are mounting a mad MADD-esque campaign against it.

Still others are fighting that old technology: bad humor, and many, many more just don’t know a good joke when they see it. It seems that any combination of the words “bomb” and “plane” is enough to get you in a lot of trouble, especially if you’re on a plane, regardless if those words are surrounded by others like “Gilligan’s Island”, “Lovey”, and a very interesting question about why headhunters don’t eat members of their own family.

Taking sincere ignorance and conscientious stupidity to an entirely new level are two stories: a new “blasphemy law” in Ireland, which makes it a crime to, well, blaspheme; and the dogged pursuit by prosecutors of journalism students assisting in innocence investigations in Chicago.

Of particular importance to the conscientiously stupid among us who choose to operate blogs is this post at Internet Cases on a recent “Ripoff Report” case:

Even though Section 230 didn’t form the basis of the court’s decision in favor of Ripoff Report, the notion of a website operator “acting in concert” with its users is intriguing. Clearly the policy of Section 230 is to place some distance, legally speaking, between site operator and producer of user-generated content. And the whole idea behind the requirement in copyright law that infringement must arise from a volitional act and not an automatic action of the system is a first cousin to this issue. See, e.g., Religious Tech. Center v. Netcom, 907 F.Supp. 1361, 1370 (N.D. Cal. 1995) (“[T]here should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party”).

For the web to continue to develop, we are going to need this continued protection of the intermediary.

In that vein, the Electronic Frontier Foundation offers a list of a dozen important trends in law, technology and business that might play a significant role in shaping online rights in 2010 and Eric Goldman offers a backward looking list of most important developments of the past year. While we’re on lists, don’t miss Lowering the Bar’s annual honors.

Another area of law that is underdeveloped, but will need some quick articulation is the intersection of the 4th Amendment and virtual file storage (aka “cloud computing”):

Coulliard wraps up with a suggested framework for applying the Fourth Amendment to “the cloud” that is very much in line with my own thinking. Treat digital assets on third-party sites not as transactions (like phone numbers dialed), but in the same way you would treat physical assets kept in an apartment or storage locker:

[T]he service provider has a copy of the keys to a user’s cloud “storage unit,” much like a landlord or storage locker owner has keys to a tenant’s space, a bank has the keys to a safe deposit box, and a postal carrier has the keys to a mailbox. Yet that does not give law enforcement the authority to use those third parties as a means to enter a private space.

The same rationale should apply to the cloud. In some circumstances, such as search engine queries, the third party is clearly an interested party to the communication. But when content data, passwords, or URLs are maintained by a service provider in a relationship more akin to that of landlord-tenant, such as private Google accounts, any such data that the provider is not directly interested in should not be understood to be open to search via consent or a waiver of Fourth Amendment protection.

Of all the stupidity on display for us, nothing is more infuriating than the arrogant stupidity of cops who protect their own. A damning report from New York alleges that cops gave their fellow “brothers” big breaks in DUI cases, even supposedly “botching” the investigations:

Attorney Harold Dee, a former New York City traffic judge, suggested that police intentionally botch their cases against fellow cops.

“They’re all in the brotherhood, so I don’t imagine all of the prosecuting cops are going to show up,” Dee said. “It’s the famous blue wall. If they do show up, they’re going to ‘dump,’ say, ‘I didn’t see this or that.’ “

And finally, an in-depth explanation of why Jon Stewart failed to dent John Yoo’s armor this past week (video here).

“I submit that an individual who breaks the law that conscience tells him is unjust and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law”

a profile in courage

The Supreme Court has been in the news a lot this week, here in these United States. Starting on Monday with a thrillingly academic sidetrack on the meaning of the word “orthogonal” during oral argument in a case revisiting Melendez-Diaz, to Tuesday’s riveting argument and subsequent analysis of the right of the Federal government to civilly commit “high-risk” sex offenders past the expiration of their sentence in US v. Comstock, attention on the Court reached a fever pitch on Thursday first with its affirming a ban on the broadcast of the “Prop 8″ trial in California and then its spontaneous written opinion on that subject.

Orin Kerr notes an odd similarity between the two cases Ted Olson and David Boies have simultaneously been involved in. The blawgosphere was atwitter with commentary on the broadcasting itself and then on the opinion of SCOTUS.

Elsewhere, the Third Circuit rejected an “internet ban” as a condition of a sex offender’s probation; a Texas forensic psychologist artificially inflated inmates’ IQ scores to make them eligible for the death penalty; there is a growing (heh, get it?) momentum toward marijuana sanity; Jeff Gamso (whose is the absolute must-read blog of the last 6 months) writes poetically about the bullshit science that infests our courts and leads to dubious convictions; and Mark Edwards at Co-Op explores the idea of acceptable deviance – in other words the gap between the law and norms:

Roscoe Pound observed more than a century ago that in “all cases of divergence between the standard of common law and the standard of the public, it goes without saying that the latter will prevail in the end.”  I suppose if one sentence could sum up my research agenda, that would be it (let us not pause to consider that my research agenda is therefore over one hundred years old).  Interestingly, it’s not necessary that the law change under those circumstances; rather, enforcement practices come, eventually, to reflect the standard of the public — what we usually now call norms.  I’ve called those gaps between law and norms ‘parameters of acceptable deviance’ or PADs.  Behavior within them is formally illegal but socially acceptable, and generally does trigger either a formal enforcement response or social sanctions.  Behavior outside of them may be either formally legal or illegal.  Behavior that is both formally illegal and socially unacceptable usually triggers a formal enforcement response; behavior that is formally legal but socially unacceptable usually triggers social sanctions.

The inimitable CharonQC wrote from the other side of the pond about the first non-jury trial in the UK in 400 years and then wasted half an hour out of his day to do a podcast with yours truly. Also from the original motherland, a report recommending sweeping reforms to their incarceration policy. Finally, in keeping with Dr. King’s motto of passive resistance and non-violence, here are some tips on how to get jurors to like you and in the “little ditty” department, here’s one from a “recovering lawyer” in honor of Conan O’Brien.

If you want more, check out Colin Samuels’ weekly Round Tuit collection of posts from around the ‘sphere (from which I’ve shamelessly lifted some links).

“Cowardice asks the question, ‘Is it safe?’ Expediency asks the question, ‘Is it politic?’ But conscience asks the question, ‘Is it right?’ And there comes a time when one must take a position that is neither safe, nor politic, nor popular but because conscience tells one it is right.”

Here is a collection of MLK posts from around the blawgosphere:

• Praising and thanking Martin Luther King, Jr. by Jon Katz (Underdog blog)
• Blawg Review on MLK Day
• Happy Martin Luther King day! at Above the Law
• Dallas law firm keeps MLK’s dream alive with annual oratory competition
• For Doctor King at The Dream Antilles
• Injustice Anywhere: MLK and criminal justice at Change.org
• I am in Birmingham because injustice is here at Concurring Opinions
• African-Americans and crime after MLK at Women in Crime ink

“Injustice anywhere is a threat to justice everywhere”

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

« Hide It

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

I wish the snow would melt, but doesn’t look like it’s going to happen for another two days or so. That means Gideon is lethargic and when Gideon is lethargic, Gideon makes lists.

Here, enjoy these fine posts from around the blogosphere:

Just a few things you should read this morning:

• In light of my recent post about the plight of pd systems, Scott writes a stirring tribute to the public defender and hidden in that is a call to arms for every other lawyer. More on that, and my own thoughts, later.
• The Courant reports on this new ACLU study which finds that – surprise! – minority kids are arrested more than white kids. Definitely some more on this later.
• On the DNA front: 6 exonerations in NE and unreported DNA in a Baltimore case casts doubt on conviction
• The Lori Drew trial has taken some odd turns: yes suicide, no suicide, yes!

That’s it. Now get to work!

photo credit: freakgirl

It’s Jumpstart time! There have been a bunch of stories over the past week I’ve wanted to write about, but haven’t had the time, so here they are, plus the usual suspects:

• NPR did a three part series on Angola and the convictions of Woodfox and Wallace. Must read/listen.
• The Judicial Branch website has updated its page of “common legal words” with links to forms and instructions.
• Making law is interpreting law.
• From Deliberations, who is qualified for death?
• Will prostitution become legal in SanFran?
• Do cops always side with businesses over customers?
• CDW’s weekly edition is here.

And my feed reader has died, so this is all you’ll get. Remember to vote tomorrow and vote NO on question 1 in CT.