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Elsewhere, But Interesting

California Legislature Requires Warrant for Cell Phone Searches

Overturning a California Supreme Court decision to the contrary, the California Legislature has required police to get warrants supported by probable cause to search people’s cell phones. During an automobile stop, police can easily search most vehicles based on the legally diminished privacy interest in these stops. Because of the mobility of automobiles and open nature of a passenger compartment, police have a variety of tools that can get them into the car. This includes protective searches, searches incident to an arrest, inventory searches, and “protective frisks.”

Our smart phones carry all sorts of personal information. In many ways, the thoughts in these devices are more personal than the thoughts an individual wrote in their diary (an area of law where the US Supreme Court had historically afforded significant privacy interests. Should the police be able to browse through these to their heart’s content? A number of software companies are offering tools that allow even the ordinary traffic cop to easily break through passwords on these phones search these portable computers to their hearts content. The California legislation is an important piece of legislation which the MIchigan Legislature should emulate with one exception. The statutory search incident to an arrest exception will encourage pretext arrests and makes no sense. Once the individual is in custody, there is no impediment to getting the warrant.

West Memphis Three to Be Freed, But State May Avoid Liability.

CNN is reporting that a deal has been struck to release the “West Memphis Three.” In 1993, these three men (Damien Echols, Jessie Misskelley, Jr., and Jason Baldwin) were convicted of murdering three boys from West Mephis Arkansas. The three will be allowed to maintain their innocence, but are being required to concede that they were prosecuted in good faith by the State. While I am not an Arkansas attorney, this moves seems to be designed to cut off monetary liability for the state.

There is something is something wrong with a system which refuses to compensate individuals for wrongful incarceration, regardless of fault. They have lost everything and will have to restart their lives penniless. Innocence should be enough. Our system should not require a dual showing of actual innocence and affirmative misconduct on the part of an individual player.

Support Animals for Crime Victims?

This weekend, there have been articles appearing in the Philadelphia Inquirer and the New York Times about a new trend to provide alleged child sexual abuse victims “service animals” while they testify on the stand. These animals are being offered under the guise that it reduces the emotional impact of the testimony, but prosecutors are candidly admitting that the animals increase the number of convictions that are being obtained. The issue is whether they create sympathy for the victim. No one likes be cross-examined. It is tough, but the strain of being on the stand often makes people slip and make stupid admissions. Should the witness stand be a comfortable place? Even for a child, I question whether this is correct. The testimony that we are getting has been the result of multiple interviews, work with social workers, and is already been “massaged and air brushed.” Is this one step too far?

Virginia Bar Says that Prosecutor Cannot Demand Waiver of IAC or Post-Conviction Challenges as a Condition of a Plea Agreement

The Virginia State Bar recently issued a Legal Ethics Opinion (LEO 1857) that addresses these issues by declaring it unethical for a defense attorney to recommend these provisions, and made it unethical for a prosecutor to require waivers of post-conviction challenges (e.g. 6.500 motions) or waivers of ineffective assistance of counsel challenges as a condition of a plea agreement.

California Considering a Ban on Jailhouse Informant Testimony

Jailhouse informant testimony is one of the leading causes of wrongful convictions. These individuals are often career criminals who testify that the accused admitted to a crime in jail. The informant then gets his/her sentence reduced. Prosecutors and police love these statements because they help lock in convictions when the evidence is week. According to the Los Angeles Times, California Governor Jerry Brown has a bill on his desk which would bar the admission of such testimony. The caveat is that the ban would only apply when there is no other evidence. If there is even one piece of flimsy corroborating evidence, the statement will come in. The bill is a start, but it doesn’t go far enough. Unfortunately, police and prosecutors are even fighting this minor reform claiming that it goes “too far.” For more information about the problems with jailhouse informant testimony, take a look at this 2003 American Bar Association article and this San Jose Mercury News article.

Ohio Supreme Court Strikes Down Their Adam Walsh Act

Yesterday, a highly talented group of lawyers managed to get the Ohio Supreme Court to declare its Adam Walsh Act unconstitutional. State v Williams, 2011 Ohio 3374. This group includes some unlikely friends. Several rape crisis centers filed a Friend of the Court brief supporting the Defendant. Both the Cleveland Rape Crisis Center and the Texas Association Against Sexual Assault filed a brief supporting the Defendant. They noted that the Adam Walsh Law was a law spread by fear and did not help any valid public purpose. Their brief is a wealth of information about why these laws don’t work and people need to read it. Less surprisingly, the Ohio ACLU Fund filed a friend of the court brief arguing the matter under ex post facto principles.

While I have focused on the amicus, the
Office of the Ohio Public Defender also filed an excellent brief arguing why an offense driven classification scheme is punitive. The OOPD argued that the more rigid the classification system is, the more punitive it is. The Williams Court agreed. While Ohio Courts have upheld predecessor laws, the Court found that the new law passed the boundaries in becoming punitive.

The Court, however, based its decision on a provision contained in the Ohio Constitution (Ohio Const Art II, Sec. 28) which bars the passage of retroactive laws.

That provision provides:

“The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.”

The Court noted that the new law extended the duration of registration obligations, imposed a duty on an individual to register with multiple law enforcement agencies, and removed the ability to judicially challenge registration obligations. Because the Ohio Supreme Court based the ruling on the Ohio Constitution, there should be no further appeals in this matter.

After reading the ruling, I pulled down a copy of Michigan Compiled Laws and started thumbing through Section IV of the Michigan Constitution trying to find a similar provision. Section IV is our counterpart of Ohio Constitution Article II – it deals with limitations on legislative powers. I couldn’t find anything. I also couldn’t find anything in Michigan Constitution’s Article III dealing with the general operations of government. Section I of our Constitution contains a general ex post facto (“No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted”) which might provide the basis for a similar challenge.

The ex post facto limitation has been applied fairly similarly in Michigan. There are also due process cases which contain some language supporting a challenge. In
Metro Homes v City of Warren the Court stated that retroactive legislation, which impairs vested rights is a due process violation. In 1992, the Michigan Court of Appeals reaffirmed this principle in Tax Payers United v Detroit. Like ex post facto challenges, the argument will boil down to whether the new law is punitive. In 1988, the Michigan Supreme Court stated in Romein v General Motors: "A remedial or procedural statute may operate retrospectively if it does not `take away vested rights.'" Cases interpreting Michigan’s old SORA law were as clear as mud on this point. The cases whether registration consequences were punitive or remedial were inconsistent. Believe it or not, this actually puts us ahead of Ohio which had uniformly upheld their old law. Notwithstanding this, the Ohio Supreme Court found that the increased reporting requirements, the broad public dissemination of large quantities of otherwise private information, and the expanded restrictions on former offenders pushed the law into the punitive category.

While we have a very conservative Court in Michigan, the Ohio decision gives me hope.

Do Citizens Have a First Amendment Right Advocate Jury Nullification?

A recent New York indictment brings to a head the thorny issue of jury nullification. Jury nullification has existed since the earliest days of juries. Because a US jury’s acquittal is final, a prosecution has no way to appeal an acquittal that is granted which is contrary to the facts or the law. Attorneys dance around this issue. We cannot overtly argue for jury nullification, but know in sympathetic cases, a jury may ignore the literal elements of the offense and acquit because they sympathize with the Defendant.

Retired Pennsylvania State University chemistry professor was indicted for jury tampering for passing out leaflets on the courthouse steps urging prospective jurors to do precisely that. As this
New York Times article points out, this case will test the limits of the First Amendment. get

Can a State Eliminate the Intent Requirement for Drug Delivery Laws?

There is an interesting fight brewing in Florida about whether a State can constitutionally eliminate the intent requirement from drug laws and make it a crime to unknowingly deliver a controlled substance. Florida has tried. If a Fed Ex delivery person unknowingly delivers a package containing drugs to home, he is guilty of a serious felony. The National Association of Criminal Defense Attorneys is lead amicus in a challenge to this practice. In addition to standard authority, the NACDL makes an interesting international law argument that intent is required under the law of nations.

11th Circuit Upholds Restitution Award to Child Depicted in Pornography for Injuries that Happened Many Years Before the Defendant Downloaded the Porn

Child pornography remains in distribution for many years after the horrid photos are taken. In some cases, you’ll see photos taken from the 1970s placing the “child” in their 40s or 50s. When an individual is arrested for a child pornography violation, The National Center for Missing and Exploited Children (“NCMEC”) compares images and identifies the children depicted within. The NCMEC then notifies an identified victim every time someone is arrested who is found to possess his or her image. At Sentencing, the Government will then introduce victim impact statements from these “victims” together with very high restitution requests. In fact there are several law firms around the country which specialize in representing these victims and in seeking six figure restitution requests from anyone who posesses their image. Some of this was covered in a recent New York Times article. All of this is part of a Department of Justice backed strategy. The theory is that these actions will make the internet a safer place for children. The Berkman Center at Harvard Law School calls the threat “overblown.”

Some courts have been resistant to these claims, but the Eleventh Circuit seems to have embraced them. In
United States v McDaniel, Eleventh Circuit No. 15038, the Court stated that the child “Vicky” was a victim. Even though her father created the pornography, she was harmed by every individual who disseminated it. The Court accepted her expert testimony that she was suffering from post-traumatic stress from these injuries. The Court however, upheld the reduction in damages by the District Court because the federal restitution statute requires ‘proximate cause’ between the Defendant’s actions and the harm. The Court followed the lead of three other circuits in reaching this result. United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999) (determining the defendant engaged in “conduct [that] was the proximate cause of the victim’s losses” and therefore was liable to pay restitution under section 2259); United States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999) (explaining that section 2259 “incorporates a requirement of proximate causation” and therefore “a causal connection between the offense of conviction and the victim’s harm”); In re Amy, 591 F.3d 792, 794 (5th Cir. 2009) (“Section 2259(b)(3) therefore arguably requires the government to establish that recoverable damages must proximately result from the ‘offense.’

Convicted Sex Offender Challenges Lifetime Ban on Social Media Sites

Today’s Sex Offender Research Blog has an interesting story about a North Carolina Sex Offender who is challenging a lifetime ban on accessing Facebook, Myspace, and other social media sites. In addition to banning sex offenders from going to schools and other places where children congregate. North Carolina law bans sex offenders from joining or using social media sites that also admit children. Last year, the attorney representing the challengers succeeded in striking down a North Carolina law which created a 300 foot buffer between sex offenders and places where children congregated. As applied, this law stopped sex offenders from going to church.

CNN Runs Report on North Carolina Forensic Scandal

CNN is running some interesting reports on the North Carolina Forensics Lab. The latest report deals with the lab’s withholding of exculpatory (Brady) evidence in more than 200 cases. These stories will be covered Sunday night at 8pm (January 30, 2010) on CNN’s Rogue Justice.

Do We Have a Reasonable Expectation of Privacy in Our Mobile Data?

Smartphones and mobile devices are becoming increasingly popular. Many people keep their emails, documents, and other private information on their Blackberries, iPhones, and iPads. Police officers are aware of this and want to pry.

Two disturbing developments call to the front stage the question of privacy. The first is the California Supreme Court’s ruling in
People v Diaz, California Supreme Court No. S166600 which declined to find any enhanced privacy interest in these devices. In Diaz, the Court ruled that the police could seize and search through these devices as part of an ordinary arrest. Presumably, this includes an ordinary traffic arrest.

Several years ago, the Michigan Court of Appeals ruled the same thing with respect to laptop computers.
People v Dagwan, 269 Mich App 338, 711 NW2d 386 (2006). There, the Court said that searching a laptop was ordinarily within the scope of a consent search. E.g. when an officer asks if he should look around the car, you are consenting to him booting up and looking at your emails.

As bad as this ruling is, a company specializing in password breaking software (Data Access) has decided to capitalize on this ruling by releasing a hand held password breaking tool that field officers can use to break into people’s
secured smartphones. Their press release overtly capitalizes on the Diaz ruling. This raises a disturbing problem for individuals who carry confidential data for a living. Is it ethical to carry privileged communication on your Blackberry or iPhone?

The California Bar Association just released an
ethics opinion suggesting that we (meaning lawyers) may need to leave these devices at home in order to protect client privacy. While this was not what they intended, they said that lawyers have to take steps to protect client privacy and be aware of the technology which makes our client’s data vulnerable. Now that we know that police can use a pretextual speeding ticket to pry into our client’s data, this may be the net result. Many years ago in Whren v United States, 517 US 806 (1996), the United States Supreme Court upheld the use of pretext based traffic stops. The combination of these rulings could be scary.

For a nice analysis about why courts are getting it wrong when they fail to recognize the unique privacy interests in electronic devices, see M.
Leach, Flyers Beware: The NInth Circuit Decision in United States v Arnold, Granted Customs Agents Access Into Your Laptops, 26 Cooley L Rev 307 (2009)
(requires fee to access article).

Pennsylvania Auditor General Calls for Reducing Prison Populations

Yesterday, I posted on New York Governor Cuomo’s decision to downsize New York’s prison population for economic reasons. Pennsylvania’s Republic Auditor General called for precisely the same thing. The Pennsylvania Proposal would call for more community based programs and moving many non-violent offenders to these less expensive treatment based programs.

Is it Ok to Read the Next Table's E-mails?

There is an interesting discussion on the CSO website about whether it is legal to sniff the next table’s packets next time you are out to a Starbucks. The Court’s may have shot themselves in the foot on this one.

In November of last year, a program was released called Firesheep which allows someone on the same network to intercept Facebook feeds and even impersonate that person online. The program works by monitoring the packets on an unsecure network. While instinctually you want to prosecute the creep that does this, Courts may have given them a free pass.

Privacy law and search and seizure law normally require a putative snoop to invade an area or place which a person enjoys a reasonable expectation of privacy that society is prepared to enjoy. The problem comes that when a court wants to help a police officer out on a bad search, they declare there is no reasonable expectation because the person did not take adequate measures to protect the privacy interest. The rub comes in that since invasion of privacy law has the exact same test, the same court is ill prepared to apply a different test without looking like a complete hypocrite. Since Courts have generally found that there is no privacy interest in an unprotected computer network (again to help the police), they have inadvertently also helped the hacker.

There is an old truism that “bad facts make bad law.” Well meaning, but results oriented judges, may have dug themselves into a hole on this issue.

Feds May Increase Amount of Good Time Federal Prisoners Receive

Yesterday’s Wall Street Journal carried an article about proposed budget cutting measures which President Obama will be considering. Amongst those proposals was a proposal to increase the amount of good time federal prisoners receive by roughly 47 to 54 days per year. While the increase is not huge, it may provide the political cover needed for the Michigan Legislature to reintroduce some form of good time in our system.

New York Governor Cuomo Says that Prisons Should Not be Used as a "Jobs Program" for Depressed Parts of the State.

New York (like Michigan) had a prison expansion based on its tough drug laws (now tempered). To house the individuals ensnared under these mandatory sentences, New York built many prisons in the Upstate region of New York. As mining was dwindling in this region, this served as a way to bring jobs to an economically depressed part of the State.

Like Michigan, New York has an out-of-control budget which it needs to reign in. Like Michigan, its Department of Corrections consumes the largest part of the State budget. New York has therefore decided to undertake a program similar to the Granholm administration and close prisons and focus on more community based treatment. New York Communities are fighting back arguing that people need to be incarcerated so that other people can have jobs. Governor Cuomo said:

"An incarceration program is not an employment program," Cuomo insisted. "If people need jobs, let's get people jobs. Don't put other people in prison to give some people jobs. Don't put other people in juvenile justice facilities to give some people jobs. That's not what this state is all about. And that has to end this session."

North Country Public Radio in New York has an excellent segment on this issue which was rebroadcast yesterday on Michigan Public Radio. The story could just as easily be about Michigan. Closing prisons takes courage. This is particularly true when Michigan Attorney General Schuette campaigned for office promising to reopen these prisons. Hopefully the “accountant” in Governor Snyder will agree with Governor Cuomo. Colleges and Universities, small business leaders, and many other organizations have all urged Governor Snyder to continue with this approach lobbying under the label of the “Corrections Reform Coalition.” An article in MLive suggests that Governor Snyder may continue with many of Governor Granholm’s reforms

Illinois Still Waiting on Death Penalty Decision

Illinois Governor Quinn has in front of him the monumental bill which would abolish the death penalty in Illinois. Despite passing both houses, the Governor wishes to hear from the public before making this decision. After a ten year moratorium and doubts about actual innocence regarding more than half the people on Illinois’s death row, you would think that this would not be a difficult decision. Unfortunately, despite all the research too many Americans still believe in the death penalty.

Is Texas About to Execute Another Innocent Defendant?

Today’s New York Post contained a troubling story involving an a demonstrably false allegation of rape. Biurny Peguero Gonzalez repeatedly told police, prosecutors, the grand jury, and the petite jury that she had been raped by William McCaffrey. The jury believed Ms. Gonzalez and convicted the defendant. Mr.McCaffrey served more than four years in prison before exonerated by DNA test. At that point, Ms. Gonzalez coached on by her priest recanted her testimony and admitted she was never raped. What is sickening about the case is her underlying reason for the false allegation of sexual abuse. Ms. Gonzales was out with friends and temporarily left with the Mr. McCaffrey. Her friends were upset with her for leaving. In order to garner her sympathy, she invented the story that she was raped. At the original trial, she testified that she was 110% sure that the police have the right defendant and that he had raped her. Like many allegations of sexual abuse, the state had relied on her contemporaneous and distressed outburst over it to demonstrate that it was not a fabrication. While I recognize the danger of anecdotal evidence, the Gonzalez case demonstrates just how difficult it is to tell a genuine allegation of sexual abuse from a false one. It also paints a troubling picture about how easily some people won't make up such a damning lie. Click here to read the New York Post story.


New York Test Case Highlights Deplorable Nature of Appointed Counsel System

Today’s New York Times contains an interesting article concerning the deplorable state of court-appointed counsel in New York State and the lawsuit brought by people challenging the court appointed counsel system. Kimberly Hurell-Harring was represented by court appointed counsel in Washington County, New York.

She was charged with smuggling a small amount of marijuana into a prison for her husband (an inmate at the facility). The court appointed counsel was a local favorite and the low ball bidder on the public defender contract. Counsel had multiple reprimands, suffered from depression, and was in trouble with the bar on other matters of neglect. He pled his client guilty to a non-existent felony. Tipped off about the case, the New York Civil Liberties Union sent an observer into the courthouse and watched. They reported that the attorney had virtually no contact with his client who rushed the case through. Ms. Hurell-Harring is the lead plaintiff in a civil suit challenging whether New York is providing adequate counsel to its indigent defendants and challenging the decision to leave the appointed counsel system in the hands of various counties. Except for the name of the suit, this could be Michigan. A similar suit is pending in the Michigan Courts and is currently on appeal to the Michigan Court of Appeals. Except for the names of the parties, the facts are virtually the same. The ruling in this case could have a dramatic effect on Michigan law.

New York Perjury Conviction Demonstrates How Easily Some People Will Falsely Claim “Rape.”

Today’s New York Post contained a troubling story involving an a demonstrably false allegation of rape. Biurny Peguero Gonzalez repeatedly told police, prosecutors, the grand jury, and the petite jury that she had been raped by William McCaffrey. The jury believed Ms. Gonzalez and convicted the defendant. Mr.McCaffrey served more than four years in prison before exonerated by DNA test. At that point, Ms. Gonzalez coached on by her priest recanted her testimony and admitted she was never raped. What is sickening about the case is her underlying reason for the false allegation of sexual abuse. Ms. Gonzales was out with friends and temporarily left with the Mr. McCaffrey. Her friends were upset with her for leaving. In order to garner her sympathy, she invented the story that she was raped. At the original trial, she testified that she was 110% sure that the police have the right defendant and that he had raped her. Like many allegations of sexual abuse, the state had relied on her contemporaneous and distressed outburst over it to demonstrate that it was not a fabrication. While I recognize the danger of anecdotal evidence, the Gonzalez case demonstrates just how difficult it is to tell a genuine allegation of sexual abuse from a false one. It also paints a troubling picture about how easily some people won't make up such a damning lie. Click here to read the New York Post story.


Idaho Supreme Court Overturns Ban on Sex Offender Father Contacting His Own Children

A frequent condition of sex offender paroles is that an individual cannot have any contact with any minor children. The Idaho Supreme Court recently reversed such a condition to the extent that it barred a parent from associating with his own children. Relying on the Washington Court of Appeals ruling in State v. Letourneau, 997 P.2d 436, 441 (Wash. Ct. App. 2000), the Court found that such a ruling infringed on the defendant’s constitutional right to family integrity and otherwise constituted an abuse of discretion. State v Cobbler, Idaho Supreme Court No. 34308.

Ohio Supreme Court Rules that Police Cannot Search Personal Electronics as Part of a "Search Incident to an Arrest"

On December 15, 2009, the Ohio Supreme Court ruled (4-3) that the police could not search a person’s personal electronics as part of a search incident to an arrest. State v Smith, Ohio Supreme Court No. 2008-1781. Read More...

The Truth is Not Negotiable: Court Dismisses Broadcom Prosecution Based on Prosecution Intimidation of Witnesses

U.S. District Judge Cormac Carney dismissed the charges against Broadcom’s former finance chief William Reuhle and threw out the charges against former CEO and co-founder Henry Nicholas. Ruehle and Nicholas were indicted last year for retroactively deciding the dates when Broadcom employees received their stock-option grants to increase the employees’ profits. Irvine, California-based Broadcom had to reduce reported earnings by $2.22 billion from 1998 to 2005 for underreported compensation expenses, the largest backdating- related restatement for any company. Judge Carney found the lead prosecutor, Andrew Stolper, leaked information about former Broadcom Chairman Henry Samueli’s purported lack of cooperation with the investigation to newspapers in order to force him to plead guilty. The prosecutor also tried to influence the testimony of Broadcom’s former general counsel David Dull after the judge had granted him immunity, Carney said. In addition, the judge said, Stolper caused Broadcom’s former head of human resources, Nancy Tullos, to lose her job at a different company as part of an effort to get her to cooperate with the investigation. Tullos, who pleaded guilty to obstruction of justice, was a key government witness at the trial. To read the Bloomberg summary of the ruling, click here. To read the transcript of the proceedings, click here. Read More...

Innocence Project Wins Release of Man After 35 Years Wrongful Confinement

James Bain spent 35 years in jail after being found guilty of kidnapping and raping a nine-year-old boy in 1974. He was released from prison yesterday based on evidence conclusively showing his innocence. The Innocence Project of Florida helped co-ordinate Mr Bain's release. It says that he was imprisoned for far longer than any of the other 246 inmates exonerated by DNA evidence across the US. Based largely on the work of the Florida Innocence Project, a DNA test established his actual innocence to the offense. A second test requested by the prosecution confirmed the results of the first test.

First Case of Fake Fingerprints Confirmed

Yesterday, I attempted to play “sports commentator” and said that Florida v. Powell. After watching another quarter in the case (oral arguments), I still think it is too close to call. According to SCOTUS blog, it still sounds like a coin toss. Read More...

Amanda Knox: "Justice Served" or "The Italian Job?"

Amanda Knox, the Seattle college student, was convicted of murdering her British roommate in an Italian courtroom. This case doesn’t begin to describe the word “high profile.” The media circus surrounding this prosecution makes the first O.J. Simpson trial seem tame in comparison. The question in my mind is whether the Italy hybrid jury (six laypersons plus two judges) reached the verdict correct. As an attorney who litigates many wrongful conviction cases, I have serious doubts about this case. Read More...

Ohio Governor Strickland Grants 78 Commutations

According to Professor Berman’s Blog, Ohio’s Governor Ted Strickland granted 78 commutations this Thanksgiving. Conversely, President Obama only pardoned a turkey. Click here to read the Columbus Dispatch’s article on the subject. Click here to read about’s President Obama’s disappointing clemency history.

Second Circuit Denies Lynne Stewart's Request for Stay

Lynne Stewart is a civil rights attorney who isn't scared to handle controversial cases. Her representation of radical cleric Sheikh Omar Abdel-Rahman, resulted in a prison sentence for her violation of the Bureau of Prisons restrictions on her ability to disseminate any information learned during her meetings with the defendant. Based on her heretofore exemplary conduct as a defense attorney, she received a sentence of twenty-eight months. Four years after the appeal was filed, the Second Circuit ordered her sentenced increased and, more surprisingly, her right to appellate bond terminated despite the strong dissent of the one of the panelists. On November 19, 2009, the Second Circuit denied Ms. Stewart’s motion for a stay of surrender order. (Click here to read the motion filed in the District Court one day before on the same subject; the Second Circuit Motion is not currently available). On November 20, 2009, Ms. Stewart voluntarily surrendered herself to the U.S. Marshalls. A motion for reconsideration of the denial was filed on November 20, 2009 and remains undecided as of Thanksgiving.


UK Police Arresting Suspects to Get DNA in System

Yesterday’s Guardian newspaper reported that UK police officers were routinely arresting suspects just to get their DNA in the UK’s national DNA database. The UK was one of the first countries to engage in comprehensive DNA collection. Many states (including Michigan) have copied many aspects of the UK program. Read More...

Should a Warrant Be Required for GPS Monitoring of a Suspect?

Today’s New York Times had an interesting editorial about a case involving the Fourth Amendment and whether technical advances can obviate Fourth Amendment privacy interests. The question presented was whether police police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The New York Times believes that that a warrant should be required.

Does the Second Amendment Guarantee Domestic Abusers the Right to Own Firearms? (Updated)

The United States Court of Appeals for the Seventh Circuit in Chicago has overturned the conviction of a Wisconsin man barred from owning firearms because of his criminal record, ruling the lifetime prohibition may violate Americans' Second Amendment rights and calling into question the future of a 13-year old gun control law. United States v. Skoien, Seventh Circuit No. 08-3770. (Originally Published 10-21; Updated 10-23).

Is KSM’s Conviction a Done Deal?

Yesterday’s Wall Street Journal’s Legal Blog had an interesting analysis on whether Khalid Sheikh Mohammad’s conviction was a foregone conclusion. The analysis stated that while the defense attorneys could file some interesting motions, in the end there was nothing that would seriously jeopardize the Government’s case.

Israeli Researchers Prove that DNA Evidence Can Be Faked

American Bar Association President Carolyn B. Lamm Nov. 16 said the U.S. Supreme Court's recent opinion in Bobby v. Van Hook, Supreme Court No. 09-144 (U.S. 2009)(previously covered on this blog here), should not be read as minimizing the significance courts, attorneys, and legislators should attach to the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. See also this ABA summary of Van Hook.

Second Circuit Ups Lynne Stewart's Sentence and Orders Her Detained

Lynne Stewart is a civil rights attorney who isn't scared to handle controversial cases. Her representation of radical cleric Sheikh Omar Abdel-Rahman, resulted in a prison sentence for her violation of the Bureau of Prisons restrictions on her ability to disseminate any information learned during her meetings with the defendant. Based on her heretofore exemplary conduct as a defense attorney, she received a sentence of twenty-eight months. Ms. Stewart was represented on appeal by a number of top volunteer attorneys who believed the prosecution was politically motivated including the legendary Duke Law School Professor Michael Tigar and Joshua Dratel. Four years after the appeal was filed, the Second Circuit ordered her sentenced increased and, more surprisingly, her right to appellate bond terminated despite the strong dissent of the one of the panelists. Like dissenting Judge Calabressi, one has to wonder if the subsequent events of 9/11 influenced the harsh results of this Court's ruling. Concurring Judge Walker essentially ordered 70 year old Lynn Stewart to serve a 360 month sentence. United States v Stewart, Second Circuit No. 06-5015. Click here to read the New York Times article on the ruling. Click here to read the New York Times story.

NACDL Supports Decision to Try Terror Suspects in New York City

The National Association of Criminal Defense Lawyers has called the decision to try the terror suspects inside in a civilian court in New York City a victory for civil rights. On Friday, it released an extensive press release calling this a “victory” for the constitution.

Delaware Supreme Court Rules that a Pardon Removes SORA Registry Obligations

Reversing the decision of the lower court, the Delaware Supreme Court ruled that an individual’s rehabilative pardon was grounds for removal from the state court sex offender registry. Heath v State, Delaware Supreme Court No. 2008-550

Kentucky AG Seeks Temporary Enforcement of Its Jessica's Law Pending State's Cert Petition to SCOTUS

In October, the Kentucky Supreme Court ruled that a state law prohibiting sex offenders from living near schools, playgrounds, and day care centers could not be applied retroactively, to those convicted before the enactment of the law. On Monday, the Court rejected a request to stay the ruling. Kentucky Attorney General Jack Conway asked that the ruling be stayed, but that request was rejected in a brief order from the Kentucky Supreme Court on Monday. The Attorney General’s spokesperson (Allison Martin) stated that he will renew his request with the high court.
The 2006 law subjected all convicted sex offenders to residency restrictions, while a prior law applied restrictions to offenders who were on probation or parole. It also increased the minimum distance that offenders must live from schools and day care centers, and added playgrounds to the list. The Kentucky Attorney General’s Office has appealed the ruling to the United States Supreme Court and has sought a stay of the Kentucky ruling pending their certiorari petition. Click here for the ky baker ruling

California Supreme Court to Review Jessica's Law

California (like many states) passed its own variant of Jessica’s Law which prohibited convicted sex offenders from living close to parks, schools, and other places which people believe children are likely to congregate. California granted an exception to the law to people who already lived near such places, but any subsequent arrest for any offense required the offender to move. J.S. was convicted of sexually assaulting a fifteen year when he was sixteen. For years J.S. continued to live with his mother. Then he received a ticket for driving the wrong way down a street, which was technically a misdemeanor under California law. This required him to move from the home he was living in for years. Jessica’s law is being challenged on constitutional grounds. Some former supporters of the law have changed their position because the law has made sex offenders homeless, more transient, and therefore potentially more dangerous. Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts To read the Silicon Valley (formerly San Jose) Mercury News story on this case, click here. To read the Contra Costa Times summary of the case, click here.

Illinois Prosecutor's Office Continues Attack on Northwestern Innocence Project

This past Wednesday, the U.S. Supreme Court heard oral arguments in Wood v. Allen, trying to come up with a working definition of AEDPA deference in habeas corpus cases.Petitioner’s trial teams had three attorneys (one of which had less experience than the others). This lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. It is unclear from the oral arguments what standard the Court will ultimately adopt. It appears that he entire Court was very concerned about articulating a standard that would not further complicate habeas proceedings.  What standard they will ultimately choose, however, was in no way clear.


More Innocence Project Bashing

Last month, we reported that the prosecutors were going after the Northwestern Innocence Project at the Medill School of Journalism at Northwestern University. The prosecutors were claiming that students biased in favor of finding claims of innocence based on grade pressures. The students vigorously deny this. Based on their claims, the prosecution has sought broad based discovery into numerous aspects of the student’s lives. The prosecution have asked for Northwestern University to provide the students grades and emails. Northwestern University is fighting the request. A hearing is scheduled for Tuesday. This story was covered by CNN, the New York Times,and the Chicago Tribune

Is There a Constitutional Right Not to Be Framed?

Yesterday’s Washington Post reported that an Iowa Prosecutor filed a brief in the United States Supreme Court arguing that the constitution does not prohibit framing an innocent man and that prosecutors should be immune from suits by the victim of such framing. Pottawatamie County v. McGhee, Supreme Court No. 08-1065.

Arizona Considering Privating Most of Its Prisons

Saturday’s New York Times reports that Arizona is considering privatizing nine of its ten prisons. While states have privatized some of its prisons, this will be the first time that a state considers such a wide spread attempt at privatization.

Prosecutors Go After Northwestern Innocence Project

Sunday’s New York Times has an interesting article about state prosecutors trying to turn the tables on the Medill Innocence Project at Northwestern University. The students of that project provided investigation that is being used in a motion for new trial in the Cook County Circuit Court pertaining to the thirty year murder conviction of Anthony McKinney. The prosecution were provided the affidavits, video tapes of the statements of the witnesses, and their written statements. The state, however, wanted more. They have subpoenaed all the students e-mails, notes, and internal memorandums.

Drafter of AEDPA Tells New York Times that the Court's Are Reading it Too Harshly

With the execution of Troy Davis looming in Georgia, he found a strange ally in former Republican Representative Robert Barr. In an Op-Ed piece in today’s New York Times, Mr. Barr stated that federal courts have abdicated too much of their sovereignty in refusing to consider this claim.

There is compelling evidence that death row inmate Troy Davis may be innocent, but federal and state courts have consistently refused to hear the evidence. Mr. Davis has exhausted all conventionlal challenges to his conviction, Mr. Davis has resorted to an original writ of habeas corpus in the United States Supreme Court. If that petition fails, Mr. Davis will be executed. In refusing to hear Mr. Davis’s appeals, courts have relied on provisions contained in the 1996 Anti-Terrorism Act (“AEDPA”) and held that they are barred from hearing the petition. Mr. Barr argues that the courts have misread the law. For more information on Mr. Davis’s case, please see his website which contains many of the opinions and a nice time line of the case.


New Mexico Repeals the Death Penalty

I just got back from the National Association of Criminal Defense Attorneys seminar in Santa Fe New Mexico and what perfect timing. We didn’t know it at the time that the conference was planned, but New Mexico abolished the death penalty just before we came and we got to join in the celebrations. The repeal is not perfect. It is not retroactive and is statutory (rather than constitutional), but Yipee!. For more on the abrogation, check out this New York Times article.

Can Police Search Handhelds as Part of a Search Incident to an Arrest?

British Sex Offenders Win Human Rights Claim

Los Angeles Crime Labs

Second Circuit Limits Police Officer Expert Testimony

Ohio Court Limits Use of EgT Test

New York Federal Court Limits Ballistics Testimony

Eleventh Circuit Says it is OK to Taze a Motorist Who Refuses to Sign a Traffic Ticket

Nevada Federal District Court Declares Adam Walsh Act Unconstitutional

As was noted by the by a Las Vegas New Channel, US District Judge Mahan has declared unconstitutional Nevada’s Adam Walsh Act. In order to gain federal grant funding, Nevada modified its registration laws to require numerous individuals previously thought not to be a risk of reoffending to register. Last Friday, a Federal District Judge found this law violated due process.
President Bush signed the federal Adam Walsh Act in 2006 to expand the National Sex Offender Registry and to create national standards for ranking sex offenders. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006). The law established three tiers, rankings based on the crime the offender committed.
Section 111 of the Adam Walsh Act specifically sets out expanded definitions that include registration and notification which were considerably broader than the versions previously used in Nevada. Under this section, a sex offender is “an individual who was convicted of a sex offense.” A sex offense is a criminal offense that has an “element involving a sexual act or sexual contact with another.”
The new provisions physically resemble the three tier system previously used in Nevada, but the federal law is considerably more exapnsive. A tier three sex offender is punishable by more than one year in prison. The individual must have attempted, conspired, or actually committed a sexual abuse or aggravated sexual abuse, an abusive sexual contact against a minor who has not attained the age of thirteen years, or a more severe offense. A tier three offense may also be committed if the offense involves kidnapping of a minor that is not one's own child or if the offense occurs after the offender is a tier two sex offender.
Second tier sex offenders are those who do not fit into tier three, but may still be punishable by more than one year in prison. Tier two includes offenses against a minor, or conspiracy to commit such offenses against a minor, such as: (1) sex trafficking; (2) coercion and enticement; (3) transportation with the intent to engage in criminal sexual activity; and (4) abusive sexual conduct. A tier two offense may also involve: (1) use of a minor in a sexual performance; (2) solicitation of a minor to practice prostitution; or (3) production or distribution of child pornography. [FN72] An offense can also qualify as a tier two if any of these offenses occur after the offender is already a tier one offender. The first tier includes any sex offender who does not squarely fit into categories two or three. Tier one offenders are considered at low risk to reoffend and are not seen as dangerous.
The expansion of the sex offense definition includes any “[1] criminal offense that has an element involving a sexual act or sexual contact with another; [and 2] a criminal offense that is a specified offense against a minor ....” An offense that is consensual is not a sex offense unless the adult victim is under the custodial care of the offender, the victim is not an adult and the offender is more than four years older than the victim, or the victim is under the age of thirteen.
A juvenile is considered to be “convicted” of a sex offense when the juvenile “is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse ... or was an attempt or conspiracy to commit such an offense.”
Nevada used a scheme that required only the most dangerous offenders to appear on the public registry. Under the old law, you could only see offenders ranked two or three. After Adam Walsh, virtually all offenders were on the public registry. The Court found that this retrospective change in the law violated due process.

Virginia Supreme Court Finds Constitutional Right to Spam

We all hate those pesky e-mails we get hawking copy watches, Viagra, and get rich quick schemes. They often come from forged e-mail addresses, sent from hijacked machines, containing forged i.p. addresses. After deleting two hundred such pieces of e-mail in a single day, even this ACLU liberal type wants to say that there is no First Amendment right to spam, but think about it. Our founding fathers often wrote under aliases, leafleted to unwanting recipients, and had a message that half the country (the loyalists) found deeply offensive, and even blasphemous. Are spammers really different from the Hare Krishna that ten years ago we worked so hard to avoid on a city street? Yesterday, the Virginia Supreme Court said “no” reversing its own six month old ruling to the contrary. Jaynes v Commonwealth, Virginia Supreme Court No. 06-2388.

Jeremey Jaynes was convicted in 2004 of sending over 50,000e-mails through America Online servers in Loudoun, Virginia. The e-mails were sent from Mr. Jayne’s computers in his home in Raleigh North Carolina. According to the Supreme Court’s ruling, these emails “intentionally falsified the header information and sender domain names before transmitting the e-mails to the recipients.” The decision also noted that the subscriber lists that Mr. Jaynes was using had been stolen from AOL by a corrupt employee. Mr. Jaynes was the first person tried under a 2003 Virginia anti-spam law. A Loudoun Circuit Court judge sentenced Mr. Jaynes to nine years in prison.

Justice G. Steven Agee (now on the U.S. Court of Appeals for the 4th Circuit) wrote the unanimous opinion for the court. "The right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment,' "By prohibiting false routing information in the dissemination of e-mails," the court ruled, Virginia's anti-spam law "infringes on that protected right."

Justice Agee noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by 'Publius' would violate the [Virginia] statute." Publius was the pen name for James Madison, Alexander Hamilton and John Jay.

The court determined that the law does not limit its restrictions on spam to commercial or fraudulent e-mail or to such unprotected speech as obscenity or defamation. Many other states and the federal government drafted anti-spam laws after Virginia, but often specifically restricted the regulations to commercial e-mails, the court found. The ruling affects only the Virginia statute.

In addition to the First Amendment ruling, the Virginia Supreme Court’s ruling has several interesting discussions which make the decision a must read for any criminal practitioner. The first question is jurisdiction in internet crime cases. Mr. Jaynes resided in North Carolina and most of the e-mails he sent were destined for third states or foreign countries, but the use of AOL’s servers in Virginia was sufficient to confer appelllate jurisdiction. Also interesting is the way that the Court distinguished Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). The Commonwealth had lifted a passage that supported the narrow standing rule that they were arguing (that Mr. Haynes could only challenge the law as applied). The Court looked at the Commonwealth’s brief to the U.S. Supreme Court and its oral arguments in the Supreme Court to find that this passage was being read out of context. The Court noted the concessions that Virginia had made and refused to read the Court’s opinion in the manner that Virginia was now arguing

The Federal CAN Spam Act is restricted to commercial speeches and could be distinguished on those grounds. The Virginia Attorney General has vowed to appeal the ruling to the US Supreme Court.

Gitmo Prisoners Seek Sanctions

According to SCOTUS blog, lawyers for Guantanamo Bay detainees on Tuesday asked a U.S. District judge to impose severe sanctions for delays that the attorneys said were of the government’s own making — delays that are already slowing down court review of military detentions. Even as that maneuver unfolded, the government asked another District judge to give it more time and new filing deadlines in other detainee cases — a move likely to meet the same resistance.

7th Circuit Says Vienna Convention Argument is Still Valid

Article 36 of the Vienna Convention on Consular Relations requires the United States to inform a foreign national of his/her right to consular access (to talk to his home country’s embassy or consulate) upon arrest. Vienna Convention on Consular Relations, art. 36, April 24, 1962, 21 U.S.T. 77, 596 U.N.T.S. 261. In Sanchez-Lllamas v. Oregon, 548 U.S. 331, 336 (2006), the United States Supreme Court ruled that a violation of Article 36 did not require suppression of evidence. See also Medellin v. Texas, 552 U.S. __, 128 S. Ct. 1346, 1355, 170 L.Ed.2d (2008). Despite repeated orders from the International Court of Justice, Texas executed two suspects earlier this year where the evidence was clear that the convictions were based on confessions obtained in violation of the suspects rights to diplomatic access. Based on Sanchez-Llamas and these developments, many member of the bar (including this one) believed that this issue was not going to prevail in any domestic court.

On September 8, 2008, a Seventh Circuit panel ruled to the contrary in a published decision. In Osagadie v United States, Seventh Circuit No. 07-113, the Court recognized the continuing viability of the Article 36 issue. The Court first recognized the importance of Article 36:

The adoption of the Vienna Convention by the international community was “the single most important event in the entire history of the consular institution.” LUKE T. LEE, CONSULAR LAW AND PRACTICE 26 (2d ed. 1991). When the United States ratified the treaty in 1969, it became the “supreme Law of the Land.” U.S. CONST. art. VI, cl. 2.

The Court then went onto stress the importance of the treaty:

Foreign nationals who are detained within the United States find themselves in a very vulnerable position. Separated from their families and far from their homelands, they suddenly find themselves swept into a foreign legal system. Language barriers, cultural barriers, lack of resources, isolation and unfamiliarity with local law create “an aura of chaos” around the foreign detainees, which can lead them to make serious legal missteps. Linda A. Malone, From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty, 13 WM. & MARY BILL RTS. J. 363, 392-93 (2004). In these situations, the consulate can serve as a “cultural bridge” between the foreign detainee and the legal machinery of the receiving state. William J. Aceves, Murphy v. Netherland, 92 AM. J. INT’L L. 87, 89-90 (1998).

The Court went onto note while there is some overlap with the function of a lawyer, the overlap is not complete. There are somethings that an embassy or a consulate are uniquely qualified to do:

Of course, we assume that lawyers here are equipped to deal with language barriers; we also assume they are familiar with the law. Sometimes, however, the assistance of an attorney cannot entirely replace the unique assistance that can be provided by the consulate. The consulate can provide not only an explanation of the receiving state’s legal system but an explanation of how that system differs from the sending state’s system. See Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 GEO. IMMIGR. L. J. 185, 195 (1999). This assistance can be invaluable because cultural misunderstandings can lead a detainee to make serious legal mistakes, particularly where a detainee’s cultural background informs the way he interacts with law enforcement officials and judges.

The Court noted that Sanchez-Llamas was a good example of the help that a consulate can provide:

Sanchez-Llamas 2 provides a striking example. In Sanchez-Llamas, Bustillo’s defense was that another man, “Sirena,” had committed the crime. Sirena, however, had fled back to Honduras; he was nowhere to be found. “Bustillo did not learn of his right to contact the Honduran consulate until after conviction, at which time the consulate located additional evidence supporting this theory, including a critical taped confession by Sirena.”

Thus far, the Court’s opinion matches the position articulated by dissents and the International Court of Justice. Now here is where the decision gets interesting. The Court stated that Sanchez-Llamas stated that the Government was required to provide a remedy for a violation and the remedy was to internalize this violation into our domestic law. While violation of a Vienna Convention Claim would not be a self-standing violation of the Constitution or federal law requiring suppression of a confession, it could be a Fifth Amendment or a Sixth Amendment violation.


W]e must address the Government’s argument that Sanchez-Llamas forecloses foreign nationals from bringing ineffective assistance of counsel claims based on Article 36 violations. A close reading of Sanchez-Llamas suggests otherwise. While the Court rejected the argument that the treaty itself required suppression as a remedy, the Court stressed that there were other means of “vindicating Vienna Convention rights.” Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct. 2669. Specifically, the Court stated that a defendant could raise an Article 36 violation as a part of a broader constitutional challenge, such as a challenge to the voluntariness of a statement under the Fifth Amendment. Id., 126 S. Ct. 2669; see also United States v. Ortiz, 315 F.3d 873, 886 (8th Cir. 2002). More importantly, the Court suggested that the Sixth Amendment could also serve as a vehicle for vindicating Article 36 rights. In a telling passage, the Court noted that an attorney’s failure to raise an Article 36 violation would not be “cause” for overriding a state’s procedural default rules, unless “the attorney’s overall representation falls below what is required by the Sixth Amendment.” Sanchez-Llamas, 548 U.S. at 357 & n.6, 126 S. Ct. 2669 (emphasis added).

Osagiede is a testament to the value of persistence. Mr. Osagiede prevailed on an argument that most lawyers would have rejected.

South Carolina Imposes Sixth Amendment Duty on Defense Counsel to Investigate

Last week, I reported on the Sixth Circuit decision in VanHook v Anderson recognizing that post-Strickland decisions from the United States Supreme Court have tightened the duty of investigation required by defense counsel. Today the South Carolina Supreme Court reached essentially the same position in Council v State.

Eleventh Circuit Says that Crack Amendments to Federal Sentencing Guidelines Are Not Retroactive

According to Doug Berman’s Sentencing Law and Policy Blog, the United States Court of Appeals for the Eleventh Circuit has held that the Amendment 706 to the Federal Sentencing guidelines is not retroactive. US v. Moore, No. 08-11230 (11th Cir. Sept. 5, 2008). The key paragraph of the decision is as follows:

In this consolidated appeal, Gary Moore, Ralph Edward Wester, Theodora Lawton, Clarence Collins, and Keith Maurice McFadden (“defendants”) appeal separate district court decisions denying their motions for reduced sentences under 18 U.S.C. § 3582(c)(2). The defendants’ motions were all based on Amendment 706 to the Sentencing Guidelines, which, together with Amendment 713, retroactively reduced the base offense levels applicable to crack cocaine offenses.  The district courts denied their motions on the ground that, because the defendants were sentenced as career offenders under U.S.S.G. § 4B1.1, Amendment 706 did not have the effect of lowering their applicable guideline ranges. We affirm.

California Supreme Court Frees Lifer Where They Was No Valid Reason for Governor to Veto Parole

The Post-Conviction Justice Project at USC Law recently prevailed in a defining case for the California parole system for long-time client Sandra Davis-Lawrence The students argued and the California Supreme Court agreed -- that a life-term prisoner is entitled to be granted parole once the prisoner no longer poses a danger to the community. The court rejected the governor’s reversal of the parole commission’s grant of parole based solely on the circumstances of Sandra Davis-Lawrence’s 1971 commitment offense (first-degree murder), holding that the reversal violated her due process rights. The 4 to 3 ruling provides meaningful judicial review of parole decisions by the Board of Parole Hearings and the governor, and could affect nearly 1,000 parole cases now on appeal. Lawyers on both sides said it was the first time in recent history that the state’s highest court has ruled in favor of a prisoner in a parole case.

  • The Post-Conviction Justice Project at USC Law recently prevailed in a defining case for the California parole system for long-time client Sandra Davis-Lawrence The students argued and the California Supreme Court agreed -- that a life-term prisoner is entitled to be granted parole once the prisoner no longer poses a danger to the community. The court rejected the governor’s reversal of the parole commission’s grant of parole based solely on the circumstances of Sandra Davis-Lawrence’s 1971 commitment offense (first-degree murder), holding that the reversal violated her due process rights. The 4 to 3 ruling provides meaningful judicial review of parole decisions by the Board of Parole Hearings and the governor, and could affect nearly 1,000 parole cases now on appeal. Lawyers on both sides said it was the first time in recent history that the state’s highest court has ruled in favor of a prisoner in a parole case.

The Wifi Sharing Defense

According to Torrent Talk, Danish and German Courts have accepted the wifi sharing defense. This defense says that because of the huge amount of illegal wifi piggybacking that goes (people using other people’s wifi connections without permission), proof that someone’s ip address was used in the commission of a crime is not proof that the individual committed the crime.

The Ultimate Conflict of Interest

According to Thursday’s New York Times, the Texas Attorney General has joined the defense request for an investigation into an affair between the prosecutor and the judge in a death penalty trial. Texas Governor Perry has taken the unusual step of staying the execution until this matter is investigated. Also joining in the Defendant’s cry for a full investigation is former FBI Direction (and federal judge) William Sessions.

Megan's Lists Expand to Drug Offenders in TN & KS

According to the Tennessean, Tennessee and Kansas have created sex offender style registries for persons convicted of possessing methamphetamine. When will the craziness stop? There is no showing that these registries stop recidivism and there is strong evidence of exactly the opposite -- they directly impede a person’s ability to resume a normal life.