Your phone will protect you only as much as the courts let it


Press here to turn over all your secrets1.

The other day Apple announced its latest iPhone which would come equipped with some sort of biometric fingerprint scanner [warning: autoplaying video], permitting users to unlock their phones with simply a touch.  iTouch, it’s called. Putting aside the obvious jokes, there was quite a bit of stir caused by this announcement on the internet, given the current spotlight on privacy invasions. This, some argued, was the end of everything: fingerprint on the iPhone means fingerprint to Apple, which means fingerprint to the Federal Government, which means fingerprint to NSA, which means…something. I don’t know what exactly.

It’s understandable. The NSA apparently can use the apps we put on our phones to hack into our phones or something. It’s a terrible invasion of privacy. Except the fingerprint as “Open Sesame!” is a bit flawed because Apple explicitly stated that the fingerprint was encrypted and stored only on the chip and not uploaded to the cloud or the internet or wherever. So the argument then becomes, if the government is going to hack into your phone to get your fingerprint, aren’t they in there already? What the hell do they want your fingerprint for?

Let us assume for some reason that they do get your fingerprint. What are they going to do with it? Put in an arrest warrant that your fingerprint matched one found at the scene of a crime? Aren’t they going to have to explain how they got your fingerprint? Either the government hacking into your phone is “legal” or not: the method by which they do it is irrelevant.

But there might be another problem associated with the fingerprint, writes Marcia Hoffman in Wired. While titled “Apple’s Fingerprint ID May Mean You Can’t Take The Fifth”2, the import of the article is clearly that this new fingerprint technology somehow reduces your privilege against self-incrimination if you choose to use it.

Because the constitutional protection of the Fifth Amendment, which guarantees that “no person shall be compelled in any criminal case to be a witness against himself,” may not apply when it comes to biometric-based fingerprints (things that reflect who we are) as opposed to memory-based passwords and PINs (things we need to know and remember).

To cut to the chase, the argument is thusly:

The fingerprint is not an act or a statement made verbally, forcing someone to reveal “contents of one’s mind”, therefore pursuant to Doe v. United States (II), it is not a “testimonial” statement that is incriminating and the act of forcing you to use your finger to open your phone is not privileged and you’re screwed. Damn you Apple, government stooge!

But, as most lawyers will tell you, there’s a big fat “maybe” attached to this argument she makes3. The ‘maybe’ is that it all depends on the facts and circumstances of the case. As Hoffman herself admits:

There are the password cases where a federal judge has ruled that an individual cannot be forced to turn over the password to decrypt files on one’s computer. Up until now, most people use 4-digit pin codes that can easily be hacked into by the Government.

But your fingerprint is different, she argues, because it isn’t something in your mind. It’s more like a key than a wall safe combination, relying on the argument of the court in Doe II.

But you can readily imagine a scenario where forcing you to use your fingerprint incriminates you: it ties you to the phone in question and it may lead police to information they didn’t know existed. See Doe I.

And then there’s the essential difference, at least in my mind4: the fingerprint is an inseparable part of my physical being, like my mind. The closest analogy I see in current practices is DNA comparison, which has been held to be non-testimonial. But DNA is not widely accepted as a method to lock and unlock private materials, except perhaps in science fiction.

A fingerprint, on the other hand, despite its unreliability can become widely used for just that. And then the argument can be made that it’s more akin to another scenario that’s prohibited: forcing you to participate in a criminal prosecution. Because there’s Rochin v. California, in which the Supreme Court held that it was a violation of Due Process to forcibly extract the contents of Rochin’s stomach and then used the pills found therein to prosecute him for possession of drugs.

There’s also the notion that there’s a reasonable expectation of privacy in the contents of one’s cell phone and that the government needs probable cause to seize and search it, however they unlock it.

And if all it takes for them is to get your phone unlocked – and they can hack into a passcode – then look about you. Your fingerprints are everywhere and you have no expectation of privacy in them. Don’t want to comply with being forced to turn over your fingerprint? Fine. They’ll just follow you and seize everything you touch and lift your print off that.

The problem with Hoffman’s piece is that it misplaces the problem with the Fifth Amendment privilege. It isn’t in the key or the fingerprint, it’s in the law that doesn’t care to protect us.

When I was your age, we had executions AT the fundraisers!

If there’s one thing Republicans love, it’s their executions. If there’s one thing they love more than executions, it’s money. If there’s one thing they love more than executions and money, it’s politics. If there’s one thin- fundraisers. That’s what I’m getting to.

So what happens when two public spectacles which exist only for the purpose of pandering to the lowest common denominator collide? Money wins.

Kids: money always wins.

And so Pam Bondi, Attorney effing General of the State of Florida got her buddy Rick “Let’s Speed Up Executions Because We’re Doing Such A Fine Job Of Making Sure We Always Have The Right Guy” Scott to nonchalantly postpone an execution scheduled to take place on Monday.

Because Bondi needed to get some money to keep her job.

After Scott last month rescheduled the execution for Sept. 10, the date of Bondi’s “hometown campaign kickoff” at her South Tampa home, Bondi’s office asked that it be postponed. The new date is Oct. 1.

Scott said Monday that he did not know the reason for the request, and he declined to answer when asked whether he considers a campaign fundraiser an appropriate reason to reschedule an execution.

Here, laid before you in the barest terms possible is your “victim’s rights”. Here is your “tough on crime” and “vengeance” and “justice” and all that supposedly makes it worth having a death penalty.

All of that. An inconvenience to a politician who wants money. Here it lies before you, exposed as nothing more than another tool to get your vote and your dollar.

Do half of these blood-thirsty politicians even care about the death penalty by itself? Or do they care more about it as an instrument that legitimizes their existence?

And, despite your best efforts to convince yourself otherwise, is there no part of you that cringes at the thought that a man’s life is being toyed with so?

Is the irony lost? We, who seek to punish those who kill to teach a lesson about the value of life do so without any notion of exhibiting that very value. Human life is precious and must be treated with respect, we say as we cavalierly bring a man to the precipice of the after-life and then yank him back at the last minute because something shiny caught our attention.

We kill to teach that killing is bad, but we do it with such haphazard and imprecise abandon that one is but forced to come away with the opinion that maybe this killing thing isn’t such a big deal at all.

I want no part of any of this and neither should you.

Judge Julie Lynch: apparently independent means media whore

Here’s one of my pet peeves in modern court room news reporting: Newspaper writes lengthy article about crimes alleged to have been committed, which are lifted straight from the police report or arrest warrant affidavit1 and then, without context, states that “the defendant pled not guilty in court”. Rage ensues in the comments, impugning the chastity of the defendant, his mother, the lawyer, the judge, Lady Justice and, of course, Barack Obama.

The reality, of course, is that everyone pleads not guilty on their first day of court for a variety of reasons, the most relevant of which is that it’s the first fucking day in court and no one in their right mind is going to plead guilty2. It’s just a formal way of starting the criminal process: a person pleads not guilty, is appointed a lawyer and gets a new court date. As routine as putting a car in first gear once you’ve started it.

Even with someone you “know” is guilty, there are things to do. Because this is an adversarial system and part of that is determining whether the prosecution can prove its case, what specific crimes it can prove and what the appropriate sentence should be. All of that requires at least some preparation, like, I don’t know, finding a reason for the defendant to not get the maximum sentence every time.

Think about it. If you were arrested and charged with something you actually did, should a judge just automatically impose the most severe punishment associated with that crime? Obviously not. And so everyone pleads not guilty, because determining what the punishment should be also takes some time and requires work. Everyone knows that. Except people who comment on newspaper articles online. And Judge Julie Lynch of Ohio.

Judge Julie Lynch of Ohio apparently has never stepped foot in an arraignment courtroom. She was somehow selected to preside over some sort of arraignment of Matthew Cordle who was indicted on Monday after having posted this video on Youtube confessing to killing someone during a drunk-driving accident in June. I haven’t seen it and I don’t want to, but you can. Apparently he confesses and more importantly states that he wants to take full responsibility for his actions. Good for him.

But first, he must be arraigned. And arraignments mean “not guilty” pleas. And “not guilty” somehow signifies to this erstwhile seasoned jurist that he’s not taking responsibility.

So she loses her shit. You can see her visibly shaking, addressing people presumably sitting in the jury box. She apologizes to them for this “waste of time” and rambles on about an “independent judiciary” and implies that the defendant is judge shopping.

If Judge Julie Lynch were my sentencing judge, I’d judge shop too. If there were any doubt that the defense attorney’s decision to plead not guilty and get a randomly assigned judge to pronounce the sentence the next day was the right one, it should be dispelled after observing her despicable behavior on the bench.

But that’s not all. She then gives an interview to Good Morning America. From the bench. While sitting there. In the courtroom. In a robe. Like right after. Flames…flames on the side of my face…

Someone needed to take her aside and remind her that she’s a judge, not Nancy Grace.

It’s entirely possible that the attorneys told her off the record that he was going to plead guilty and then changed their mind and switched at the last second. I get how that would annoy a judge.

But her response is disproportionate. Her response is that of someone who’s been denied the opportunity to put on a show for everyone in the country who’s watching on HLN and CNN and StupidTV. Her demeanor reeks of someone who doesn’t value her responsibilities and power and the need to maintain a judicial demeanor. She is someone who isn’t concerned with the appearance of the judicial system, but rather her appearance in the judicial system.

When you’re more preoccupied with the appearance of justice rather than the administration of it, it’s a safe bet that you don’t give a shit about anyone other than yourself.

That’s reason enough for me to stay away from Judge Julie Lynch.

H/T: Jeremy Donnelly


Adversarial means you can’t force me to help you

The criminal justice system has been called an adversarial system. The Mirriam-Webster Online Dictionary defines adversarial as:

of, relating to, or characteristic of an adversary or adversary procedures

and one of the example sentences it provides is:

an adversarial system of justice with prosecution and defense opposing each other

So what that means is that if you, the prosecution, file a motion seeking to have me disclose information that is confidential and is likely to incriminate my own client, I will refuse. If you, the judge, ask my client incriminating questions, I will intervene. You can choose to hold me in contempt, but you will end up looking like a bully.

If you decide that I must answer those questions, I may still refuse to do so and you can hold me in contempt1:

Terry Zimmerman, a longtime deputy public defender, was found on Wednesday to be in contempt of court for refusing to answer 11 questions related to Denise Goodwin’s murder case, despite a Superior Court judge’s ruling on the matter.

Zimmerman represented Goodwin who was accused of murdering an elderly gentleman allegedly in part because of his fortune. Goodwin was hired to care for Raburn, who has since disappeared and is presumed dead and whose assets have allegedly been drained by her. The bone of contention is this:

According to the judge’s written ruling, Zimmerman was appointed to handle Goodwin’s defense in September 2011. In April of last year, she filed with the court a large envelope containing a will, letters and other documents that purportedly belonged to Rabourn.

Those items were turned over to the prosecution. The District Attorney’s Office then filed a motion last month seeking testimony from Zimmerman about how she obtained the documents.

The judge ordered Zimmerman to disclose that and failing to do so, jailed. It’s a threat and a threat not to be taken lightly, but Zimmerman is in an adversarial relationship with the State.

There is only party whose job it is to do “justice”2 and that is not the defense attorney. It is my job to be an adversary. To put the State to the test and to examine its proof. Not to help it convict my clients.


A game of thrones

Andrew Cohen at The Atlantic wrote this must-read article yesterday on judicial elections, which remarkably includes a lengthy comment from Justice Don Willett of the Texas Supreme Court1, who himself is a master politician and has managed to get himself elected a number of times.

(Un)surprisingly, Justice Willett is no fan of judicial elections and has some harsh words to say about the process. The request for comment from him was prompted by this frightening ACS study [PDF] on “the effect of campaign contributions on judicial behavior”.

The bottom line, if you haven’t guessed already, is that judicial elections are bad because judges are more likely to vote for the interests that got them elected in the first place. You can read the study if you want all the numbers. They’re horrifying.

Judge Willet writes:

No doubt contributions play a huge role in determining political victors and victims, in judicial races no less than in other branches. My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.

But it works. That’s the game and he plays it. He wants to be on the biggest stage in Texas and he gets to do it by courting important people who spend money to get him elected. And then, well, why else are they burning cash supporting him? Whether he intentionally or subconsciously doesn’t vote in their favor is beside the point. Wouldn’t they be getting some return on their investment? Why else would they repeatedly spend money?

But really, sitting back and looking at the system right now is fucking depressing.

There’s no funding of indigent defense, no repercussions for abuse of prosecutorial authority, no ethics in elected public defender positions, jurors who want to convict to vindicate OJ and judges who admit to playing the game just to keep their jobs. And what does judicial selection bring? More of the same. While not necessarily as infected as judicial election, the selection process is also inherently biased. After all, governors and presidents select judges. And they select along mostly political lines, so conservatives pick judges who will tend to lean that way and vice-versa. Is it any wonder, then, that the Supreme Court’s approval rating – if such a thing is to be believed – is so…divided?

So we are faced with a system where every single puppet-master is inextricably tied to his or her ideology.

Meanwhile everyday people are subjected to the machinations of those with power or those who want power. But they’re too busy watching Game of Thrones, rather than realizing that they’re the very people their favorite characters are trampling underfoot.

[For further lamentations on the sad state of Texas judicial elections, see this timely post at Grits for Breakfast.]

Flick that as(s)h


No, this is not a post about twerking. Although the people in Illinois who recently passed a bill making it a felony to flick cigarette butts onto streets1 for the third time might reasonably be called “twerps”.

I’m sorry, you need me to say more? Okay. You know that old superstition, three on a match? Where the belief was that you should never light three cigarettes from the same match because it lets the enemy 1) become aware of, 2) sight, and 3) kill you? This is somewhat like that, except when you reach 3 in Illinois, you go to jail for 1-3 years with a felony record.

For flicking cigarette butts out windows.

Because apparently the State of Illinois has solved all of its other problems.

This bill was passed, adding “cigarettes” to the definition of “litter” in this statute, thereby making a third offense for littering a Felony.

For fun, here is everything that counts as litter:

“Litter” means any discarded, used or unconsumed substance or waste. “Litter” may include, but is not limited to, any garbage, trash, refuse, debris, rubbish, grass clippings or other lawn or garden waste, newspaper, magazines, glass, metal, plastic or paper containers or other packaging construction material, abandoned vehicle (as defined in the Illinois Vehicle Code), motor vehicle parts, furniture, oil, carcass of a dead animal, any nauseous or offensive matter of any kind, any object likely to injure any person or create a traffic hazard, potentially infectious medical waste as defined in Section 3.360 of the Environmental Protection Act, or anything else of an unsightly or unsanitary nature, which has been discarded, abandoned or otherwise disposed of improperly.

Remember this the next you’re quick to judge those “criminals”. I bet many of you already are and didn’t even know it.


Not how our system works, but how it behaves

That’s the parting comment with which Gerry Walker ends part 1 of his 2-part series (part 2 here) on his experience as a juror in a downtown New York County courthouse. The full quote:

That day, I received a crash course in not how our judicial system works (because honestly, after serving two weeks on a criminal trial jury I still don’t know), but rather in how it behaves. There are gangs in the courthouse, just like on the streets. There are strategies. There are plans. There are rules to keep others of all kinds in their place. And there are loopholes to those rules from which, if you’re smart and know how to play the game, and don’t mind losing a few friends and perhaps piece of your soul along with them, you could profit by squeezing through.

Gerry walked into the courthouse somewhat of an idealist and instead left fully aware the system works not on grand notions of truth and justice but rather on the individual perceptions and agendas of everyone with a dog in the fight – and mostly those who don’t have one: jurors.

It is rare for attorneys to get inside the minds of jurors so when one chooses to share his/her experiences with the world, it’s a learning moment and, in this case, a fantastic read.

The case was about a guy selling crack to an undercover officer and it seems by Walker’s account that there wasn’t proof beyond a reasonable doubt.

And then he went to deliberate and his life turned into a version of 12 Angry Men:

As was expected, much debate ensued between those with opposing views. I disagreed with the foreperson’s statements several times in the next hours and could see in her eyes that she did not like me. But that was cool. No one is required to like me. But then something happened that changed me for the rest of the trial. As one woman attempted to explain her reasoning behind voting ‘Not Guilty’, the foreperson, who frequently talked over others and finished their sentences (until I invited her to cease), threw her hands up and said:

“See? This is just how O.J. got off!”

And that was it. That’s when Walker realized that, in America, justice is a game. That no matter what the judge tells you and what you’re fed on the nightly news and through rags that you read, it’s about what you feel in your gut. People disregard jury instructions and vote their conscience based on their life experiences. That people are emotional and no matter how strongly we chastise them to leave those emotions behind, they simply can’t:

So in front of everyone, I asked her:

“Have you ever found yourself in a situation where if somebody else had walked onto the scene, you might have appeared to be doing something that could send you to jail?”

Because I, Gerald Thomas Walker, have. More than once. Where I’m from in inner-city Cleveland, it is quite easy to end up in suspect situations even when you’ve done nothing wrong. And as far as “reasonable doubt” is concerned, as humans we all harbor varying views of exactly what that is, based upon our life experiences, where we’re from and what we’ve been through, what we’ve seen and done, and what has been done to us. I was hoping that the other jurors would empathize with me here, and they did.

How about an excellent question for voir dire there?

The bottom line, as far as I can tell, is this: think like a juror. Think about who you want on your jury. Think about how evidence will affect jurors and how they will see things. Jurors aren’t the most sophisticated in the law, but they are adamant about what they know and what that means.

H/T: Rich Matthews via @JuryVox.