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#Law School and #Friendship
I met with a law school buddy yesterday. She’s taking over a case for me, bailing me out in the process. We talked about the old times (1996-1999 in Chicago) and how for me law school was the “college experience” I never had as an undergraduate. It was the only time in my life where I really drank alcohol and partied hard, but I loved the law school experience, even when I was stone cold sober. Overall, the practice of law has been a disappointment for me, but I can remedy that if I can get myself a teaching position. In any case, I miss Chicago, and I miss my friends. I hope Amy isn’t the only one I get to see again. People like Amy made law school the best years of my life. This is not an overstatement. I was never happier, and for someone who has suffered from depression, that’s a profound statement. I owe her for more than just taking this case off my hands.
By the way, if you need a criminal defense attorney in Virginia, let me know. I’ll point you to Amy. She’s awesome.
Follow me @RobertEBodine
Another Reason to Understand Your Social Media Privacy Settings
H/t to @PropertyAtty for this post.
If you’re one of those people (i.e., if you’re a human being) that just glosses over the privacy settings for your social media platform, you might want to read US v. Meregildo, 11 Cr. 576 (WHP) (S.D.N.Y., Aug 10, 2012). Judge William H. Pauley III refused to suppress the government’s evidence obtained through viewing a Facebook profile. The “Memorandum & Order” is only four pages long (page five is a one-sentence conclusion), so you should click on the link above and read it.
Facts
The defendant, Melvin Colon, had a Facebook account, and he didn’t enable strict privacy settings. The result was that all of Colon’s “Facebook ‘friends’ [could] view a list of all of [Colon’s] other Facebook ‘friends,’ as well as messages and photographs that Colon and others posted to Colon’s profile.” One of Colon’s Facebook friends (“witness”) decided to cooperate with the police and allow them to view the contents of the witness’s account, which included a lot of information from Colon’s account due to Colon’s settings. As a result, the police learned that “Colon posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Colon’s gang.” This formed the basis of probable cause, and a magistrate granted the search warrant.
The Court’s Analysis
The court noted that while people have a reasonable expectation of privacy in their home computers, they lose it when they transmit information over the Internet or by e-mail (citing United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004); Guest v. Leis, 255 F.3d 325,333 (6th Cir. 2001)). If Colon had adjusted his privacy settings to restrict public access to the information, he might have had an argument under the Fourth Amendment (i.e., a “reasonable expectation of privacy), but because he “disseminate[d] his postings and information to the public, they are not protected by the Fourth Amendment.”
My Analysis
Presumably because of the use of technology, the court analogized this to allowing the government to listen in on a phone conversation when the person on the other end of the telephone line consents to the call, which was allowed in United States v. Barone, 913 F.2d 46,49 (2d Cir. 1990), but in my opinion, that’s not even the strongest analogy available because the audio from phone calls aren’t available to the entire public. This is probably an even easier case than that (though I haven’t read Barone in about a decade). Posting publicly to Facebook is more like placing an announcement on an electronic billboard on interstate highway I-95. It’s using technology, and it’s a public announcement. To be honest, though, I feel the use of technology is a red herring here anyway, as this is really no different than the police simply talking to the witness and asking, “What do you know?” If the witness has incriminating information, then the police are just doing good police work to get it. Regardless of where the best analogy lies, the point is that this is an easy case.
There are two important caveats to this analysis. First, this was a district court case in New York and thus doesn’t apply to you unless you live in that district. However, I fully expect this to be how most courts rule on this issue, and even if you don’t agree with that prediction, you must recognize that there’s a danger that your district court judge will rule this way. Second, it’s important to note that the Court recognized there could exist theoretical fact patterns that made the government’s actions illegal. The point was simply that law enforcement going through public Facebook data shared on the internet voluntarily is not, in and of itself, inappropriate.
What Should We Have Learned?
For me, the moral of this story is broader than criminal law. Neither the judicial courts nor the court of public opinion will allow you to be as lazy or stupid as you think you have a right to be. If you don’t read the fine print or take the time to protect your information, you have no right to complain when it’s made public. If you insist on engaging in social media, you have two choices, and both require a modest work ethic and moderate amount of intelligence:
- Restrict access to your Facebook information to people you’ve already “friended,” and “friend” (as a verb) only people you actually know; or
- Watch what you post (i.e., always asked yourself whether what you’re posting could be embarrassing, controversial, or incriminating), and use “lists” to restrict certain information to a limited viewing audience.
If that’s too hard, delete your account(s) or accept the consequences. Ignore Meregildo at your own peril.
Follow me on Twitter @RobertEBodine
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A Small Bit of Perspective on the Past 24 Hours
This was an interesting Sunday night/Monday morning we had today. We learned that on Sunday at about 10:30 am CT, 7 people died in a shooting at a place of worship in Wisconsin, showing not only how little some of us think of the right to religious worship, but also how little some of us think of human life. Later that night on HBO’s new show, the Newsroom, those that watched relived how we felt when the President announced the death of Osama bin Laden. Monday morning, the Curiosity landed on Mars.
Do you think we’re going to make it?
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Individualistic Political Policy: We Are Neither Germany nor Japan
These people know their jobs.
As I’ve pointed out in a prior post, I don’t discuss the right to keep and bear arms publicly. I’ve been published on the subject (76 CHI-KENT L. REV. 2 (2000)), and while my views have become even more complex, if you want to know where I stand, that will have to do. Nevertheless, the Aurora tragedy has the political talking heads making an argument that’s always bothered me: “Because [some country] has had success with [some policy], we would too.”
Nonsense. Whether any policy is going to work is complicated because both our society, and the issues it faces, are complex. Assuming that the best policy can be determined by superficial evidence shows a lack of respect for that complexity, as well as a lack of respect for the work of every sociologist and psychologist that uses actual science to analyze such phenomenon. However, it isn’t just that the issues a complicated, or that society has a lot of factions. There are deep-rooted cultural differences between people of different cultures, some of which actually affect the way we think. As much as we view ourselves in America as divided, at its deepest levels, our political philosophies are much closer in thinking to one another than to many of these other countries whose policies we want to adopt.
This last point on cultural differences is my focus in this article.
German Landlords Are Crazy
My older brother’s second assignment in the U.S. Army was in West Germany. (For the kiddies, Germany was actually two countries between World War 2 and my time as an undergraduate student.) Only one of the stories he brought back resonated with me. He rented a room in a single family home in what appeared to be a typical American suburban community, though it was an authentic German community (as opposed to some American enclave in Germany). Every Wednesday morning, his landlord would pop his head out the front door, look up the street, look down the street, and then come back inside. Though he found this strange, my brother didn’t find it strange enough to ask why. During his last week in Germany, he went into work late enough to find out, finally, what was happening.
The landlord was checking to see if everyone else on the street had put out their garbage. After checking several times, everyone got in sync. Within (an estimated) two minutes of the first person putting out their garbage, everyone on the block had put out their garbage. This was done about an hour or so before the garbage truck came to collect the garbage. Moreover, looking up and down the block, as well as across the street, the garbage cans were lined up precisely with one another.
Neither the timing nor the precision of placement were required by German law. Their laws weren’t much different than ours in this regard. You couldn’t put out your garbage before sunset the night before, and you had to have your garbage cans within 6 to 18 inches (or so) from the street to avoid blocking the street. Putting the garbage out simultaneously and with such order was a condition imposed on the people by themselves, and they didn’t get together and have a meeting to decide it. It’s what they did because it’s how they think, so it just happened organically.
Eastern Culture
A recent study provides further proof of a cultural phenomenon that’s been considered dogmatic in the field of psychology for some time now: “Western culture emphasizes the individual and focuses on the forefront, and that East Asian culture de-emphasizes the self and is more cognizant of context.” The study compared Facebook profile photos of people from western and eastern cultures and found that western profile photos (like mine, actually) were often head shots, but in most cases emphasized the person over the background. Moreover, there was a greater tendency for the person to be smiling (again, like mine) or making a goofy face. The opposite was true for profile pictures of people from eastern cultures, where the person was often no more important to the scene than a chair that was just as much in the background.
This is measuring individuality vs. collectivism, and I remind you that this study did nothing more than confirm that the widely-accepted theory applied to online identity. It’s well-known that these differences clearly exist.
Here’s another story on the subject, and here’s a link to the study’s abstract.
But What About England?
Find the British Teeth. Image c/o BBC News
England is a western society, aren’t they? They’re democratic, and they have a decent sense of individuality, right? Can we model ourselves after them?
They have a queen, and under the Firearms Act of 1968, their cops usually aren’t granted permits to carry firearms. How would that last one work in Detroit?
Americans Don’t Think Like That
Can you imagine people arranging their garbage cans so precisely and within 120 seconds of one another? I couldn’t care less what you did with your garbage, but if hell froze over and I actually bothered to care for a second, I’d probably go out of my way to keep my garbage cans unaligned and bring them out at a different time. It’s typical for Americans to prize our individuality so highly as to affect even the smallest of life’s experiences. Technically, Germany, Japan, and the other countries cited are democracies, but you wouldn’t know it by watching them work and listening to them speak. To us, they look like insect colonies, seemingly doing things for the sake of just doing them, as if they’re all aware of secret laws and just haven’t told us.
Please note that this isn’t a value-judgment on my part. It’s merely an observation, and it’s tough to make. I have a high-and-mighty view of how important the American ideal for individuality is, but what this demonstrates is that democracy and totalitarianism don’t necessarily depend on individuality. That’s a tough pill to swallow at times, but I make no apologies for the fact that I feel so strongly about my individuality. It can make things hard, but it’s become a necessary aspect of my life because of the 44 years of experiences I’ve had that have made me the person I am.
Where Does That Leave Us?
. . . and therefore, I’ll be damned if you’re going to take that away from me without a fight . . . at the ballot box. I’m not threatening anyone.
Dammit, people! Just compare Texas to Connecticut and tell me that we aren’t extremely individualistic in this country. If policies in Texas don’t work in Connecticut (and vice versa), don’t you think that going to the other side of the world to see what they do is a bit reckless?
I submit to you that because all of us, consciously or subconsciously, think this way (granted, to varying degrees), we wouldn’t necessarily enjoy the same benefits of policies that might work wonderfully overseas. A change might not make things better (i.e., “crooks will always find a way to do [something horrible]”), and might actually make things worse by frustrating the hell out of us. To make a prediction one way or the other requires a professional analysis that most of us can’t perform. Stop trying.
Remember a common theme I have for my writing: It’s not enough to be right for the wrong reasons. You have to be right for the right reasons. If you want to do the job of a sociologist, spend a few years to become one. Otherwise, let them do their job. Hopefully the politicians will place science over politics, which brings me to another common theme of mine:
We’re screwed.
(Though that’s only because we reward politicians for playing politics. Our fate is still technically in our own hands.)
Follow me @RobertEBodine
Surprise! Floyd Mayweather, Jr. Is Looking For Special Treatment
“But I’m famous? Doesn’t that count for something?”
Lord, I hope not.
ESPN reported yesterday that Floyd Mayweather, Jr. was seeking early release from prison. Specifically, they report that Mayweather’s attorneys have filed
an emergency motion asking the court to move Mayweather into the general jail population — something that jail officials had avoided out of fear for the celebrity’s safety — or put him in house arrest for the rest of his three-month sentence.
The court knows that the offering the option of moving Mayweather into general population is an empty gesture, because the likely result of doing so would subject the state to a huge lawsuit. The ESPN report goes on to note that Mayweather’s attorney, Richard Wright,
said he’d be willing to have the boxer serve the sentence in an apartment or somewhere less luxurious than Mayweather’s posh Las Vegas-area home. But prosecutor Lisa Luzaich said softening the sentence would be just another accommodation, similar to when Mayweather’s jail surrender date was postponed for months after sentencing so he could fight Miguel Cotto in May.
Mayweather’s strongest argument in favor of early release appears to be that serving out the remainder of his term could threaten his career by limiting his access to proper exercise and nutrition. I sincerely hope that Justice of the Peace Melissa Saragosa doesn’t accept this argument. Many people lose their livelihood because they go to jail. I admit that Mayweather’s job is much more sensitive to even short jail sentences, being that he’s an elite athlete, but the solution isn’t disparate treatment. The solution is not committing the crime. For the same reason his job is so sensitive to jail sentences, he has a higher burden of behaving himself. He’s a public figure, and if you want a job in the public spotlight, you have to answer to the public, whether or not they’re being reasonable. He received a 90-day sentence despite having the means to employ top-notched attorneys, which suggests he’d be facing a longer sentence if he could afford only what most of us can.
I hope he serves the full term, and if that costs him his career, it’s his own damn fault.
Follow me on Twitter @RobertEBodine
Follow Floyd Mayweather, Jr. on Twitter @FloydMayweather
H/T @MMADork
A True Hero: The Coffee Shop Manager from Pulp Fiction
Here’s something non-controversial. Hopefully, you’ll enjoy it, but don’t get used to it. I love to make people fight.
Last week, I saw Pulp Fiction for what seems like the 20th time, and as always, the scene that hit me emotionally was the last scene in the movie. I posted my feelings on the scene to a Facebook thread, and decided it was appropriate to make an entire blog post on it. Be warned that I use statistics from sources that aren’t always reliable, and some are reliable but reflect current circumstances rather than those of the movie’s time period. As these stats are used to make convenient assumptions about a fictional character, I offer no apologies. Just roll with it.
“Coffee Shop“
In the first and last scenes, Ringo (Tim Roth) and Yolanda (Amanda Plummer) rob a diner. The first time I saw the movie, at this point (i.e., up to the final scene) I’m thinking that this has been a mildly entertaining movie, though not as big a deal as everyone has told me it was. Then this scene hits. As the robbery develops, the Coffee Shop Owner (Robert Ruth) comes out and tries to deal with the robbery. He has only a couple of lines, but these lines tore into me as relatively few movie characters can do. Click here to read his lines and the surrounding dialogue. It’s not-safe-for-work, so … I don’t know; don’t read it out loud if you’re at work or around kids.
PUMPKIN: You Mexicans in the kitchen, get out here! Asta luego!
Three COOKS and two BUSBOYS come out of the kitchen.
PUMPKIN: On the floor or I’ll cook you ass, comprende?
They comprende. The portly MANAGER speaks up.
MANAGER: I’m the manager here, there’s no problem, no problem at all –
Pumpkin head his way.
PUMPKIN: You’re gonna give me a problem?
He reaches him and sticks the barrel of his gun hard in the Manager’s neck.
PUMPKIN: What? You said you’re gonna give me a problem?
MANAGER: No, I’m not. I’m not gonna give you any problem!
PUMPKIN: I don’t know, Honey Bunny. He looks like the hero type to me!
HONEY BUNNY: Don’t take any chances. Execute him!
The Patrons SCREAM. Jules watches all this silently, his hand tightly gripping the .45 Automatic under the table.
MANAGER: Please don’t! I’m not a hero. [EDIT: This is a lie.] I’m just a coffee shop manager. Take anything you want.
PUMPKIN: Tell everyone to cooperate and it’ll be all over.
MANAGER: Everybody just be calm and cooperate with them and this will be all over soon!
PUMPKIN: Well done, now git your fuckin’ ass on the ground.
So let’s summarize what happened. The robbers cleaned out the back areas and didn’t find the manager. To my recollection, he wasn’t always in the scene, which seems reasonable because he seemed to speak up as soon as he appeared. Assuming there’s a back door, he could have escaped and called the police, which would give him a decent excuse for running away from the scene. He didn’t do that, though. Instead, after likely calling 911, he exposed himself to the robbers, taking the risk that he also could be shot. In fact, he tried to place the focus – and thus, risk – squarely on himself.
Side note: The Coffee Shop Manager is standing up when he first appears on screen, and it appears he could have entered from the back of the store before speaking up. I’m assuming that’s what happened, and considering that his delay in speaking would be out-of-character from his dialogue and choices he otherwise made, I’m operating under those assumptions above. If I’m wrong, that’s a failure of filmmaking, so please leave me to my interpretation, whether true or not. Similarly, I once told my Star Wars fanatic cousin, @KesselJunkie, that I interpreted the Emperor’s disfigurement as existing prior to his fight with Mace Windu. What happened was he was weakened, and the veil of the Dark Side dropped, exposing his true appearance, which had been warped by the Dark Side long ago. At that point in the story, there was no longer a need to waste energy on that veil, so he never restored it. I couldn’t care less whether George Lucas agrees. That’s the truth for me. Non-nerds, just ignore that other example.
So who is this manager? Out of convenience, we’ll assume that he makes $52,102 (if the link doesn’t work, you may verify via a simple search on salary.com), which is today’s average for Los Angeles and excludes managers of “fine dining restaurants.” We’ll also assume that he’s in a stereotypical nuclear family, and thus has a wife and 1.2 kids at home.
What are his responsibilities? As a typical restaurant manager, he has to have a reasonably pleasant personality and patience in the face of unruly customers. Some people have these traits naturally, so that’s probably not that big a deal. He also has to be an amateur accountant, taking care of the books for the store. We’re not talking about solving differential equations here, so again, maybe this isn’t a big deal. Things get a little trickier when you consider that he has to have the knowledge of a lawyer (average salary in Los Angeles, CA of $92,899) focusing in human resources matters, but as I like to say, I have an undergraduate degree in physics. I’ve studied rocket science. In most cases, the law isn’t rocket science (exception: patenting a bigger better space rocket). So, maybe he doesn’t deserve anymore than his $52,102 salary, as many people could do that job even if they didn’t have a college degree.
According to this scene, though, we see some other skills this manager must have. He must be calm in the face of danger. He must be a psychologist (average salary in Los Angeles, CA of $90,739), being able to diffuse a potentially life-threatening situation despite his own fear. He must be an EMT (average salary in Los Angeles, CA of $33,074), because if someone gets shot, and no one else steps up to the plate to help out, he has to keep the person alive long enough for help to arrive, presumably with nothing more than a first aid kit. What if he can’t stand the sight of blood? Tough luck. It’s his job, so he has to man up and do it. Of course, he’ll probably get a plaque or something.
Still, perhaps his average salary is appropriate. Despite common American complaints about income disparity between executives and the ordinary workers, if that’s what the market bears, then that’s what it bears, and we’ll conveniently accept that. However, under the circumstances, it seems unfair to look down on this hard-working guy for being “just a restaurant worker,” but that’s what I see from most people I meet. Most people look down on those that serve them in this regard, or perhaps even worse, ignore them altogether.
And these are the people the Coffee Shop Manger is trying to save at his own tremendous risk!
I find this to be absolutely appalling treatment of this one guy, and I just can’t get past it. He’s the one and only hero in this entire movie, and one of only a few people not belonging in jail.
Some Other Good People (or at Least Not-Bad)
Pulp Fiction was a movie about a lot of bad people doing bad things to each other. While the crimes of some are more serious than the crimes of others, leaving you to prefer one over the other, in the end, no one should care if any of these guys get their comeuppance. However, there are certainly some good people in the movie, or at least people we don’t have any reason to assume are bad, and aren’t annoying (e.g., Kathy Griffin’s over-assuming Hit-and-run Witness). Butch’s mom (Brenda Hillhouse), the female cab driver, and Butch’s girlfriend, Fabienne (Maria de Medeiros), who just wants some blueberry pancakes, seem to be decent people who didn’t annoy me at all.
Of all of these other “not bad” characters, the only ones that are caught in the crossfire of the bad characters are the diner’s patrons and the Shot Woman, who was shot by Marcellus Wallace (Ving Rhames) after trying to help at the scene. For those characters, however, there wasn’t any drama to it. Instead, it was just on-screen movie violence that, at this point, is tuned out by the average viewer. That is, we just ignore a woman getting shot in the leg, saying, “Oh, so someone got shot, huh? That’s nice.” It’s often about shock value, so even, where here, it’s a reasonable part of the story, we largely ignore it.
We can’t ignore the Coffee Shop Owner’s predicament because it’s not about shock value; it’s about drama. His predicament is handled almost completely through dialogue, and it’s front and center. It requires good acting to convey his fear and courage at the same time.
And he did it with only a few lines.
There’s one other difference between the Coffee Shop Manager and these other characters. Despite his one lie in his dialogue claiming he wasn’t a hero, only the Coffee Shop Manager was a true hero. While the Shot Lady should be commended for her willingness to help, and the result was tragic, at that point in the scene, she didn’t feel she was in any danger. She had no reason to believe Marcellus was going to be such an asshole (and let’s face it; he didn’t have any reason to shoot her). That makes her a good Samaritan and a victim. The Coffee Shop Manager, on the other hand, threw himself into ongoing danger to save people, many of whom probably didn’t respect him, knowing full well that his wife and 1.2 kids, who probably depend on his salary, would be in a very bad place if he were killed. He continued to handle the situation even after Yolanda suggests that Ringo execute him. The Coffee Shop Manager was a hero.
It’s so frustrating to see a good person treated this way.
Am I Insane?
I don’t know why this one character had so much of an impact on me. Is it because of who I am as a person, or is it because of some good acting or good filmmaking. If it’s the filmmaking, I’m surprised because, on the whole, I found the movie so-so. (My friend, Erik, pointed out, though, that even giving such a minor character that many important lines is the mark of good filmmaking, and on that I agree. I’d also say that good dramatic filmmaking requires that you empathize or sympathize with the characters, which occurred for me only in this one scene.) One thing I would like everyone to take from these thoughts is that everyone who’s working hard for a living deserves your respect. I don’t care what they do, and neither should you.
If you want to watch the scene, one viewer’s re-edit of it is below. Robert Ruth enters at about 5:50. Again, this is not-safe-for-work.
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People v. James Kent: A Lesson in Jumping to Conclusions
I used to try to teach people to look before they leap on social and political issues. No one ever listens, so I’ve stopped. However, maybe this time it might stick. Recently, in People v. James Kent, New York State Court of Appeals No. 70, the highest court in New York determined that a cached image of child pornography did not constitute possession of child pornography. (Note: That is, the cached image in this particular case didn’t constitute possession of child pornography.) As far as I’m concerned, this case was properly decided under New York law, and New York law is reasonably solid on the subject, but at the very least, the case is a reasonable approach to technology law. Unfortunately, most people are outraged, as if this is clearly a bad decision. Let’s examine this case to see why they’re jumping the gun.
What the Case Didn’t Say
Right off the bat let me make it clear that the case did not legalize child pornography, and you’re stupid – not merely ignorant, but stupid – if you think it did. Even without reading the case, you should assume that New York wouldn’t legalize child pornography. I know everyone likes drama, but please, don’t be an idiot.
So What Did the Case Say?
The Facts
The defendant was James Kent, a professor of public administration at a Dutchess County college. While attempting to deal with a problem with the defendant’s computer, a tech support employee found thumbnails of “scantily clad, prepubescent girls in provocative poses.” These images were held in a “cache,” which is an area on a hard drive that stores temporary files. The use of the cache is automatic; the computer user rarely interacts with it, and many computer users don’t know it exists. A few “messages” (emails, I presume) stored on the hard drive backed up the defendant’s story that the images were connected to a research project, and the defendant was very much concerned about the illegality of his activity.
I bet you love it when I quote cases.
“[The d]efendant was indicted on two counts of Promoting a Sexual Performance by a Child (Penal Law § 263.15) and 141 counts of Possessing a Sexual Performance by a Child (Penal Law §263.16). Counts 1 and 142 related, respectively, to defendant’s alleged procurement and possession of [an adult-child interaction] webpage; counts 2 and 143 related, respectively, to defendant’s alleged procurement and possession of [a child pornography] video; counts 3 through 141 charged defendant with possession of the .jpg images recovered from the unallocated space of the hard drive.”
“Unallocated space” refers to areas of the hard drive containing deleted files. When files are “deleted,” they often still remain on the hard drive. What are actually deleted are the pointers to those files. Thus, those images represent files the user can no longer access, but are still on there, waiting to be overwritten by new files.
The Court Cases
After a six-day trial, the Defendant was sentenced to concurrent prison terms of one to three years. The Appellate Division affirmed, but the Court of Appeals reversed the convictions on counts 1 and 142 (i.e., defendant’s alleged procurement and possession of an adult-child interaction webpage).
The Decision
The Court of Appeals first pointed out that the relevant statute was 30 years old and doesn’t properly address the use of the Internet in child pornography. That doesn’t mean that a court can’t apply the law to the Internet, but it does present some difficulties. In this case, the statute was held to cover most of the aspects of counts 1 and 142 (e.g., definition of an “image,” definition of “sexual conduct”), but where it ran into problems is in the definition of “procure.” Specifically, the Court of Appeals held that 1) merely accessing and displaying a webpage is not “procurement” under the statute, and 2) in order for images in the cache to constitute promotion or possession of child pornography, the defendant must be aware that the files are there; however, their presence could be used as evidence that the images were previously viewed by the defendant, but possession required more activity (e.g., “printing, downloading, or saving”).
That’s a bit muddled, so let’s clear it up a bit. The Court of Appeals pointed out that, unlike the Appellate Division and the holdings in other states, the Federal Courts had it right. Possession can’t be founded on the existence of cached files unless the defendant knew about the cache because, in order to possess something (legally), you must know it exists. In order to exist in the cache, those files must, at some point, have been viewed on the screen; however, the Court noted that this doesn’t mean the defendant had actual control over the images appearing on the screen.
For example, what about pop-up ads? If you visit a website, and a pop-up ad containing child pornography comes up on your screen, assuming you’re not a piece of garbage, you’re going to delete it immediately. The image would then go to your cache, and if you weren’t aware of the existence of the image at that point, how would it be fair for you to be convicted of child pornography? What if all of this occurs as you’re walking away from your computer to hit the fridge? The fact that you didn’t delete the image for a few minutes would also be explainable (i.e., it doesn’t prove you were ogling the image for several minutes). Then, there’s the concern that it wasn’t even you that did it, but instead was your friend playing a stupid trick on you, or your kid accidentally surfing to the wrong site. If, on the other hand, you saved the image or printed it to a printer, that would strengthen the evidence of your guilt (thought he concern of other people using the computer still exists for unsecured computers). This is what the Court of Appeals was saying. Whether you ultimately agree with it or not, it’s at least a reasonable approach to the law, isn’t it?
On top of all of this, the Court noted that the laws of New York simply don’t include the means to accept a different rule. It’s important to note that the legislature, not the judiciary, makes laws. There is something called “common law” that’s an exception to that rule, but a judicial decision can never (legally) contradict a law that covers the subject matter. Here, the legislature has acted, and the law as written doesn’t support a conviction for possession. In fact, it never has, and it’s rare for mere viewing of child pornography is criminal. There are far too many situations in which you might view it by accident or by force for such a broadly-worded law to be just. This brings up another point: Constitutional concerns might require the New York law to be written the way it is, and for states that have adopted a contrary rule, they may find their law’s days numbered.
As a side note, there are two concurrences in this case. These are opinions written by a justice that agree with the outcome, but not the reasoning, of the majority of the justices. In Justice Smith’s concurrence, an argument was made that the majority’s rationale was too strict. In other words, Justice Smith viewed the conviction on those two counts as even more flimsy than the majority. I’ll leave it to you to read that (and the other) concurrence if you so choose.
So, He Gets Off?
(Tee- hee. See what I did there?)
No, he doesn’t. Of the 143 counts against him, 141 were upheld! (This is “legalizing child pornography”?!) The Court of Appeals simply returned the case for resentencing. The punishment for the 2 counts in question will be disregarded, but the punishment for the other 141 counts will still be applied. This guy is going to jail, and unless I’m mistaken this won’t affect the total time he serves (i.e., 3 years), but according to the wording of the case, he will definitely serve at least one year. The Court of Appeals is the highest court in New York, so unless the governor commits political suicide and pardons the guy, he’s serving his time. (If you want to complain about something, complain about the length of the sentence. It seems a bit light, but even that assumption might be jumping the gun. There are, after all, longer sentences for other child pornography-related crimes.)
Amazing, isn’t it? You’re all claiming that child pornography has now been legalized, but the defendant’s jail sentence remains unaffected. What’s wrong with this picture?
Some Sound for Your Deaf Ears
So, what have you learned? Probably nothing. What you should have learned, though, is that jumping to conclusions without research almost always results in poor assumptions and unfair statements. Here’s a case that supposedly legalizes child pornography, yet in fact provides a fairly reasonable holding. Quite a swing on the scale of right v. wrong, eh?
Start caring about the truth, and look before you leap.
Postscript #1
This blog entry was inspired, in part, by a Twitter conversation with @KesselJunkie. He raised a couple of issues I want to address. First, the legal ramifications of caching have been addressed in other areas. Specifically, defendants were sued for copyright infringement because of caching. It’s been fairly well-settled since my law school days (1996-2000) that caching doesn’t result in copyright infringement. Ergo, these principles actually have, in a roundabout way, been applied to the music industry, so this doesn’t contradict those rulings, either literally or figuratively. Second, there have been many cases recently where the federal legislature has written bad laws based on their ignorance of the technology in play. (I’m looking at you, SOPA.) This is not one of those cases. I found no glaring, technological misconceptions in Justice Ciparick’s majority opinion. If you did, please share them in the comments.
Postscript #2
I also blog on sports matters, and in particular on mixed martial arts (i.e., MMA), an industry that is overwhelmed with fake journalists (“MMAJ”) operating out of their parents’ basements yet cited by ESPN, NBC Sports, etc. Needless to say, these MMAJ aren’t immune to the same disregard for facts and research as the rest of society, and the result are claims of, “So MMA is illegal in New York, but child pornography isn’t?” This example was also a source for inspiration for this blog entry. Maybe your jumping the gun has no consequences (note: actually, it probably does at the voting booth), but if you ever get a job in which they do, you may find that your old habits die hard.
The Casey Anthony Trial: Wanting Your Cake and Eating It, Too
She’s blind so she won’t be offended by your smug sense of entitlement and split your skull with her sword.
I’m not a criminal defense attorney, and I’m over 10 years removed from law school when I had ready access to the statistic I’m going to reference. Things have probably changed, but not that much. Still, the caveat is important, so there; I made it.
Everyone complains, and rightly so, when we hear about an innocent person spending even a month in prison for a crime he or she didn’t commit. We demand all sorts of protective procedures in place to minimize, if not eliminate, such occurrences. We have a privilege against self-incrimination, protection from unreasonable searches and seizures, and even prohibitions against cruel punishments even after we’re found guilty “beyond a reasonable doubt.”
I agree with that high a standard. In fact, I love it. I love knowing I won’t go to jail for a crime I didn’t commit. I also love knowing that I won’t be beheaded if I decide to jaywalk some day. The result is that, relatively speaking, virtually no one faces such dangers. Wrongful convictions represent a very small percentage of the convictions that occur, and almost all of those wrongful convictions took place a long time ago. As we progress as a society — legally, socially, and technologically — that number is approaching zero. Yet, we still snobbishly complain that it isn’t at zero yet. Again, I agree with this attitude and expectation of perfection despite how unrealistic it is. The day we stop striving for it is the day we accept totalitarianism into our lives.
However, in line with our American sense of entitlement, we seem unwilling to accept the consequences of that standard. Case and point: The Casey Anthony trial.
I haven’t followed the trial, but from what I’m hearing, she’s almost certainly guilty, just like O. J. Simpson in the 90′s. Nevertheless, she walked, and justice will never really be had for her child. This is a direct consequence of the procedures that you so eagerly demand. You simply can’t have one without the other.
For those that claim that the prison system is loaded with people that aren’t actually guilty, I point them to the fact that 95% of the people that are in prison plead guilty to get there (as I said, an old statistic that may have changed). They admitted they were guilty in exchange for receiving a lighter jail sentence than their actual crime demanded. That is, at least 95% of those that are in prison are getting off easier than they should. Again, this is a consequence of the difficulty associated with getting a conviction. Prosecutors would be more than happy not to offer any deals if they thought they could actually get convictions via a jury trial. The remaining 5% must be exceptionally clear cases of crimes for them to even have had to go to trial, and still there are plenty that are found not guilty (about 20% in federal cases; no idea about state cases).
As I told my cousin, Kessel Junkie, I have no problem with his paternally-induced sense of anger he feels right now. I’m not a father, and I’m not happy that yet another murderer goes free. However, when we cool down from this initial anger, we need to stop being such elitists who think we’re entitled to a perfect world. Either accept a totalitarian state or get over the consequences of not having one. Rights don’t exist for when times are easy. They exist for when times are hard. This is one of the hard times.
Sir William Blackstone: “It is better that ten guilty persons escape than that one innocent suffer. Get over it, bitches.” (This is a direct quote.)
Follow me on Twitter @RobertEBodine
Follow John, the Jedi Padawan, on Twitter @KesselJunkie
Real Civil Libertarians Don’t Defend the Reading of Miranda Rights; At Least, Not Anymore
Do I Look That Bad to You?
Today marks the 45th anniversary of Miranda v. Arizona, the 1966 case that ostensibly gives us the requirement of the reading of rights to suspects when taken into custody. This case represents what’s wrong with politics, and demonstrates what happens when politics infects our legal system (or any other system) . It also shows how assumptions become “facts” over time. In short, the fact that this requirement persists is the result of nothing more than hurt feelings, stubbornness, intellectual laziness, and political expediency. So, where do I begin?
The Case: Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966)
I’ll keep this short. If you want to know more, or verify what I’ve written, you can read the Miranda decision here.
Very early in the decision, Chief Justice Warren summarizes the holding in four long, boring sentences.
[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.
(emphasis added). Here’s a summary of that summary, cramming the sentences together without changing their meaning:
The prosecution may not use statements by a suspect, whether they claim to be innocent or guilty, if the statements were obtained through questioning by law enforcement of the suspect while he was in custody. There are probably lots of good ways to accomplish this, but until the legislatures come up with their own ways, you’ll have to read them their rights.
The court goes on to say that, if the suspect agrees to talk, that’s fine, but he must have waived his right “voluntarily, knowingly, and intelligently.” That is, he may not be forced to confess, and he must realize he’s confessing. On top of all of this, he can change his mind at any time. If he asks for an attorney, or says he doesn’t want to be interrogated, all questioning must stop until he voluntarily, knowingly, and intelligently waives his rights again.
Before I continue, when you oversimplify, you run the risk of grossly mischaracterizing the law, and I’m sure some lawyers in the audience will point out intricacies of the law (e.g., the exceptions) not relevant to the point I’m making. However, I don’t want you to fall asleep, so I’m not going to go through the ins and outs of this case and all the cases that followed it. I can make my actual point without addressing 45 years of jurisprudence. The highlighted lines are all that matters. Stay focused.
The Problem
What’s the problem that Miranda was trying to address? There’s a Fifth Amendment privilege against self-incrimination. To be clear, that means that one of our most basic rights is the right not to have to act as a witness against yourself in a criminal trial. If you want to keep your mouth shut, you may. Of course, sometimes people want to confess because they can’t live with their guilt. Other people do just fine with the guilt and clam up. The problem is that innocent people can be tortured or tricked into confessing to a crime they didn’t commit. The American system of justice is based on the adage, “It’s better that 100 guilty go free than 1 innocent go to jail.” Therefore, it doesn’t matter how few confessing suspects were actually innocents that were tortured or tricked. If only one was, it’s one too many, so we are all permitted not to speak.
To make sure the right has “teeth,” we need to be able to tell these people apart from one another. In other words, we need a test of whether confessions are made, as the Court said, voluntarily, knowingly, and intelligently. So, how do we do that?
A test! I demand a test!
Reading the Case: Everyone Screws Up
Absolutely everyone misread this case (except me apparently). The case didn’t say you had to read them their rights. The case said there had to be some procedure performed by law enforcement personnel that reliably assures us that the confession was voluntary.
This is no small point. As we lawyers often say (in every other context), the court is not “institutionally competent” to write laws. That is, they aren’t good at it because they don’t have the necessary tools. Chief Justice Warren was pulling this reading rights out of his ass. His source of information was about 60 minutes of oral argument and a few 50-page papers all provided by people with a selfish interest in the outcome. That’s no way to write a law, and he knew that. Congress, on the other hand, can take its own sweet time, calling numerous expert witnesses, listening to hours of testimony in various committees, etc. to determine what procedure is the best to use. All the Court could do is what its language suggests it did: derive a Constitutional principle through interpretation of the Constitution. Reducing that principle into law is the job of the legislature.
What I’m saying with those last two sentences is that the actual holding of the case is that the Fifth Amendment requires a mandatory, regular procedure performed by law enforcement personnel that assures a confession is voluntary. What it does not say is that the reading of rights is the one and only appropriate “regular procedure” to accomplish that end. In fact, the reading of rights is probably not even close to the best option because it was written by a judge, not a legislative body.
Reread that last paragraph if you didn’t understand it. I’ll wait . . . . Okay? Moving on.
Let’s drop the legalese for a second and see if what I’m saying passes the smell test. Everyone hears the reading of rights on television nearly every day. At this point, you can probably recite it. I was raised Roman Catholic, and I’ve said more Hail Mary’s as a kid than I can remember, and like every other human being on the planet, the recitation was capable of becoming mindless to me. That is, I was capable of saying the words without contemplating their actual meaning, which is exactly what happened because, being a kid, I didn’t care what they meant. (By the time I was an adult, I lost my faith, so I stopped saying them. I’m sure there are plenty of adults that contemplate the words. That’s not the point.) This is what’s happened to the Miranda rights. Many people that can recite them still don’t understand them because it’s become more of a musical hook than a Constitutional protection.
So it’s a bad idea to read the same words over and over again to people. Is there another solution? How about video recordings? Video has become relatively cheap and easy to make. In fact, many jurisdictions use digital or analog cameras anyway (ironically, to help get a conviction). If we see the entire duration of a suspect’s custody right before our eyes, isn’t that a better indicator of a legitimate confession than reading them an often-repeated phrase that they might not understand? This could be cost prohibitive in some areas, and unavailable under certain circumstances, but it certainly should be viewed as an adequate replacement for the reading of rights if a state wanted to use it, or if under a certain set of circumstances, a a police officer used it.
If you don’t like that solution, how about letting the legislatures come up with one? They’re in a better position to do so than I am in my blog. That’s their job. To date, they haven’t done that. They just went with the Miranda warnings to make things easier.
Stop treating the reading of rights as sacred. Chief Justice Warren wouldn’t want that.
Taking Offense: The Legislature Screws Up
Let’s return to my history lesson. This really angered Congress. They saw this as an inappropriate invasion on their turf. In response, they passed 18 USC § 3501, which placed the finding of “voluntary” solely in the hand of the trial judge. It provided five factors for making that decision (two of them representing the reading of Miranda rights), but not requiring all of them. Thus, it was possible for a confession to be admissible even though law enforcement wasn’t using a mandatory law enforcement procedure to assure the confession was voluntary. Not only does this violate the true holding of Miranda, and by extension the Fifth Amendment, but the one aspect of the case with which they agreed is the one aspect they could and should have rejected. Specifically, the one optional procedure they included was the inferior reading of rights, without providing any alternatives.
Why is the mandatory law enforcement procedure important? Without it, a judge can say, “Well, I guess the cop is telling the truth.” I assure you, as someone who’s litigated cases, that’s a bad idea. Every single judge in every single criminal case always asks the same question: “Why would this police officer risk his career by lying to this court about the defendant’s alleged illegal activity?” The answer, Your Honor, is that the cop knows you’re going to ask that stupid question, which indicates that you refuse to accept the possibility he’s lying. As every first year law student learns, deterrence occurs only when punishment is not only severe but also certain. That is, the harshest punishment in the world won’t deter a crime at all if the criminal knows he won’t get caught. Perjury is a serious crime, but if the judge refuses to believe you’d lie, you’ll claim to be the princess of Canada.
Although he can’t officially back that up with paperwork.
But hey, there are political egos on the line here. We have to maintain our priorities, right?
Lazy Bastards: The Presidents Screw up
Ever wonder why there are laws on the books that say silly things like you can’t hunt on Sundays, except for raccoons, which can be hunted until 2 am on Sunday morning? Here’s one reason that stuff happens.
What happened after Congress went crazy over the Miranda decision? Nothing. Absolutely nothing. The Executive Branch of government – the President and his Department of Justice – refused to enforce the law for about thirty years. They decided it was unconstitutional. That’s not their place to do so. They don’t get to determine whether the laws are good or bad. They may decide whether a particular application of the law is unconstitutional, but they may not ignore those laws wholesale. They must enforce them. The DOJs for several presidents, both Republican and Democrat, invaded on the judicial branch’s turf and decided which laws they’d enforce and which they wouldn’t, completely ignoring 18 USC § 3501.
The result of this misconduct was a law sitting on the books far longer than it should have.
As an aside, this is why I tweeted last February that I was upset that the Obama administration decided not to enforce the Defense of Marriage Act. I agree that this act is unconstitutional (reasonable minds can disagree, so please don’t derail the comments), but the Executive Branch doesn’t have the right to ignore it. (EDIT, 5/16/2012: In fact, Andrew Johnson was impeached for this dereliction of duty.) Moreover, as I’ve shown above, that merely keeps an unconstitutional law on the books, which could come back to haunt its opponents years later. On the plus side, I had a nice exchange with @cadorette on the subject, even though I couldn’t properly explain myself in 140 character bursts. 
Making Matters Worse: The Supreme Court Screws up
Chuck Dickerson robbed a bank. In 2000, the Supreme Court decided his case in Dickerson v. United States. Chief Justice Rehnquist writing for the majority argued that Congress couldn’t overturn the Miranda “reading of rights” requirement because it was specifically demanded by the Constitution. Justice Scalia argued in dissent that the reading of rights was merely an example of a procedural safeguard, but not a specific requirement of the Miranda holding. Hooray! Someone gets it, right? Wrong. He’s defending a law that doesn’t provide for any mandatory procedural safeguards by law enforcement.
I would also have held the statute unconstitutional, but it’s frustrating to me that Chief Justice Rehnquist seemed to miss the point. It wasn’t wrong because the reading of rights wasn’t required; it was wrong because the only law enforcement procedure listed was optional.
Where We Are Now
We’ve seen the legislative, executive, and judicial branches of government all screw up in the interest of political expediency and satisfying grossly inflated egos. Now we’re stuck with what is almost certainly a worthless procedure, and neither Congress nor the state legislatures want the hassle of trying to fight to come up with a better way to set criminals free … errr, I mean protect civil rights. That’s not good politics. Good politics is giving people what they want, not what they need.
A real civil libertarian doesn’t defend the reading of Miranda rights; at least, not anymore.
Aside: Traffic Stops
If you’ve ever been stopped by a cop, you know that the first thing they ask you is, “Do you know why I stopped you?” In case you haven’t figured it out yet, that’s because they’re trying to get you to self incriminate. A traffic stop isn’t considered “custody” for Fifth Amendment purposes, so your response can be used against you even if your rights haven’t been read. The next time that happens, just answer, “No.” If you have witnesses in the car, don’t offer any information other than what’s on your license, registration, and insurance card, all three of which the officer is permitted to request (some jurisdictions don’t require the insurance card). That is, give him what he’s entitled to get, but not one piece of information more. Careful, though; without witnesses, the officer can make up what he wants, and the court will believe him. Most don’t; some do. Don’t take chances of inflaming the officer if you don’t have witnesses.
Food for thought.
$afety Fir$t: Traffic Cameras and You
Note: This is a repost and edit of an entry I wrote for my prior blog, Are You Kidding Me?.
I have a pet peeve that I must get off my chest: Traffic cameras. They drive me nuts. But before I lay into them, let me give you some background.
I have a long-standing pet peeve: Sham enforcement of traffic laws. It’s clearly not about safety; it’s about raising revenue for the state. Essentially, it’s a tax wrapped up in a dishonest justification. And that would be fine (and Constitutional) if there weren’t punishment attached to the fine. For some of them, you could have your license revoked, your record tarnished (higher insurance rates, anyone?), and even have to serve jail time.
Now, some of you might be thinking, “But Rob, it’s about safety.”
No, it isn’t. If it were about safety, traffic laws wouldn’t be enforced randomly. If it were about safety, people would be stopped for crossing over solid white lines and running stop signs, relatively low-cost violations, instead of “speeding.” I put speeding in quotes because if the speed limit for I-95 in southern Virginia is less than 90 mph, than the speed limit isn’t about safety. It’s about $afety.
Your response might be, “But Rob, I was driving in the 1920’s, and in my day . . . .”
Well, stop right there old timer. If you were driving in those days, you were used to cars with suspension systems (among other things) that are vastly inferior to what’s built today. The technology is different, and it makes driving easier. Ever drive, or even ride in, a Porsche? The ride is so smooth that 60 mph feels like 20 mph. Literally. I though we were going 20 mph, and the driver pointed out that we were just over 60mph. However, even in my 2002 Mustang, I can safely drive 81 mph (easily) on I-95 in southern Virginia on a clear day. Well, guess what? According to § 46.2-862, that’s reckless driving, which according to § 46.2-868, is a Class 1 misdemeanor, a criminal offense punishable by up to one year in jail and a $2500 fine (§ 18.2-11). (Your state’s laws are probably similar.) I won’t get a year in jail for my first offense, but am I really a criminal?
Okay, so that brings me to traffic cameras. Most cameras designed to catch speeders are in areas where the limit clearly shouldn’t be 90 mph, and red light cameras are trying to stop a real danger. Sounds great, huh? Well, I’m suspicious, so let’s dig deeper.
You should know about this little thing called “service of process,” which seems to be lacking in these cases. Pay careful attention to what I’ve said there: “service of process.” I didn’t say “due process,” which is a different idea. Lawmakers have “set up a strawman” (an argument no one disagrees with, so that it’ll seem they won something) by claiming guys like me are yelling, “due process violation.” Ignore that. Despite hearing many people defend against the argument for lack of due process, I’ve never heard a single person ever make it. (EDIT: Found one. See link below from the Washington Times.) We’re talking service of process (EDIT: Or at least I am. ).
So what is it? If you’re sued by someone or accused of a crime, you must be “served.” This has nothing to do with dancing in South Park, Colorado. It means there must be a reliable way the other party gives you notice of the law suit. Otherwise, I could sue you, never tell you about it, and win by default because you never showed up even if my law suit was a sham.
What about violations of the cameras? Is there ever service of process? The answer is no. They just mail you the ticket. They just send a ticket to the owner of the car (who may not have even been driving), telling them that they either pay a $50-$100 fine, or take a day off from work (which costs even more) to defend themselves in court. They don’t even bother to spend the extra money for registered mail to at least prove someone received the notice. (That still wouldn’t be good, because it wouldn’t prove that the right person received the notice, but it would be a little better.)
Why do they do this? Because they know most people will say, “To hell with this,” and just pay it. Nice little scam, huh?
But wait! It gets worse! This is supposedly about safety, right? Some jurisdictions (example) have actually shortened the time a yellow light lasts. Now why would they do that? The longer the yellow light, the easier it is to react to it, so shortening it makes things a little less safe by giving people less time to stop. However, it also results in more violations, doesn’t it? More people will accidentally run a red light. For those that stop, they’ll be forced to stop a little more suddenly, which would likely increase fender benders. So why do it?
Can you gue$$?
On top of this, many jurisdictions are using private companies to maintain the cameras and pass out the tickets. With no requirement to serve process, and all that incentive to send out more tickets, what did you expect?
And now – finally – here’s the worst part. Most people seem to be against these cameras, yet the cameras are popping up everywhere. If we’re a democracy, and the majority opposes these cameras, why aren’t they gone yet?
Think about it. These cameras don’t rise to the level of slavery or concentration camps, but doesn’t it at least bother you a little bit that your opinion doesn’t seem to matter? Government and the voters are both caught up in the big issues, like gun control, abortion, etc., so they don’t afford traffic laws a high priority. This seems like a good argument for decentralizing government even further, placing more responsibility in the hands of county and town governments, but with the trend being in the opposite direction (i.e., more and more government functions shifting from the states to the federal government), that’s an argument for a later time. With so many bigger fish to fry, it seems unlikely that this will ever change unless the system changes. Again, how to change the system itself is an argument for a later time.
In the meantime, $afety Fir$t.
Some data: How short should yellow lights be? Answer.
Are they unsafe? A US House of Representatives report sponsored by Dick Armey says yes.
Another interesting (and recent) article on the danger of red light cameras: Do Red Light Cameras Reduce Accidents?
