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Wednesday, October 30, 2013
ICC prosecutor asks court to require Kenya president to attend trial
[JURIST] The prosecutor for the International Criminal Court (ICC) [official website; JURIST backgrounder] asked the court Saturday to set aside their decision [press release; JURIST report] earlier this month allowing Kenyan President Uhuru Kenyatta [official website; JURIST news archive] not to be present for his whole trial on charges of crimes against humanity. The Office of the Prosecutor (OTP) [official website] has requested [Capital News report] Trial Chamber V(b) to either reconsiders its decision to conditionally excuse Kenyatta from continuous...
Fighting Video with Video
Sheriff's deputies in Clark County, Ohio, have been given dispensation to wear "pocket cameras" on the job. Not because someone decided it was a good idea for them to video their interactions with member of the public, which is not only a perfectly fine thing to do, but one that has been embraced by other department. According to the Dayton Daily News:
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on theSam Browne body armor, they do with the knowledge that they are no longer acting as ordinary people who just happen to be entitled to seize other ordinary people by pointing a gun at their head. Their authority comes from the job, from the People, who put up the money for their uniform allowance.
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”
Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.
Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.
“They say a picture is worth a thousand words,” Kelly said.
What Elliott records with his camera can be used for evidence.
“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on the
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.
And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?
There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it. We're still a ways off from figuring out how video will best serve "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.
Officials believe that the cameras will be helpful in protecting themselves and the community.
“I think there will be a time when everyone carries one,” said Kelly.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/14/fighting-video-with-video.aspx?ref=rss
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Building an Effective Policy Management Program: Getting Started
This podcast takes a closer look at why a policy on policies, or meta-policy, is the foundation for any effective policy management program and what a strong meta-policy should cover. Learn about the important role that technology can play in enforcing a meta-policy, helping ensure that a policy management program is both effective and sustainable.
The podcast features Lisa Hill, former Senior Business Leader and Corporate Policy Manager at Visa and current Policy Pundit for GRC 20/20 Research / President of Policyscape Consulting and Daniel de Juan, Director of Product Management GRC at Datacert. Together, they discuss best practices and technology for successful policy management.
The podcast features Lisa Hill, former Senior Business Leader and Corporate Policy Manager at Visa and current Policy Pundit for GRC 20/20 Research / President of Policyscape Consulting and Daniel de Juan, Director of Product Management GRC at Datacert. Together, they discuss best practices and technology for successful policy management.
F. Lee Bailey and Kenneth Fishman Discuss Excellence in Cross Examination
Cross-examination is a skill that every trial lawyer hopes to master, but few do. In the new book, Excellence in Cross Examination, published by Thomson Reuters, two giants of the trial bar, F. Lee Bailey and Judge Kenneth J. Fishman, share their insights and lessons on how to excel in cross-examination. In this edition of Lawyer2Lawyer, host Bob Ambrogi invites Bailey and Fishman to discuss their newest book and the key skills lawyers need to be effective in cross.
Having represented high-profile names such as O.J. Simpson, Dr. Sam Sheppard, and Captain Ernest Medina, F. Lee Bailey is known for his successful career as a trial lawyer in criminal and civil cases. He has been a licensed attorney for more than 50 years, authored and co-authored 21 books, and is a licensed private investigator. In addition to his legal career, he has worked as a designated naval aviator with the U.S. Marine Corps.
The Honorable Kenneth J. Fishman was a practicing attorney for nearly 30 years before he moved to the bench. This marks his tenth year as an associate justice for the Massachusetts Superior Court. A former law partner with Bailey, he is a frequent speaker and lecturer for the Massachusetts Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers, and The Massachusetts Bar Institute.
Special thanks to our sponsor, Clio.
Having represented high-profile names such as O.J. Simpson, Dr. Sam Sheppard, and Captain Ernest Medina, F. Lee Bailey is known for his successful career as a trial lawyer in criminal and civil cases. He has been a licensed attorney for more than 50 years, authored and co-authored 21 books, and is a licensed private investigator. In addition to his legal career, he has worked as a designated naval aviator with the U.S. Marine Corps.
The Honorable Kenneth J. Fishman was a practicing attorney for nearly 30 years before he moved to the bench. This marks his tenth year as an associate justice for the Massachusetts Superior Court. A former law partner with Bailey, he is a frequent speaker and lecturer for the Massachusetts Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers, and The Massachusetts Bar Institute.
Special thanks to our sponsor, Clio.
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Tuesday, October 29, 2013
Scary Tech: Lessons from ABA TECHSHOW 2013
Find out what the experts in computer security saw at ABA TECHSHOW 2013 - things like attendees with no passcode on their tablets or smartphones and people connecting to insecure networks which monitored their data traffic (through a scary device called a Pineapple). Digital Detectives hosts Sharon Nelson, Esq. and John Simek, president and vice president of Sensei Enterprises, Inc., welcome Ben Schorr of Roland Schorr to talk about the best ways to secure your home and office devices
Ben Schorr has been a technical consultant for businesses for two decades. Microsoft named him Most Valuable Professional (MVP) for both their Outlook product group and their OneNote product group. He was recently named by the Pacific Technology Foundation as one of the Top 50 Technology Leaders in Hawaii, where he is CEO of Roland Schorr, an IT management and support company.
This episode will help you understand how to connect to the Internet securely when you are out of the office, to create secure passwords for your devices, to keep your security patches up-to-date, to backup and do test restores of your data, and more.
Ben Schorr has been a technical consultant for businesses for two decades. Microsoft named him Most Valuable Professional (MVP) for both their Outlook product group and their OneNote product group. He was recently named by the Pacific Technology Foundation as one of the Top 50 Technology Leaders in Hawaii, where he is CEO of Roland Schorr, an IT management and support company.
This episode will help you understand how to connect to the Internet securely when you are out of the office, to create secure passwords for your devices, to keep your security patches up-to-date, to backup and do test restores of your data, and more.
Source: http://legaltalknetwork.com/podcasts/digital-detectives/2013/04/scary-tech/
Post DOMA and Prop 8 Rulings: The Next Move for Gay Rights
With the Supreme Court’s Prop 8 and DOMA rulings, same-sex marriage is now legal in California and same-sex married couples can receive federal benefits across the nation. These landmark decisions for gay rights have sparked the question: is nationwide marriage equality on the way? On this edition of Lawyer2Lawyer, hosts Bob Ambrogi and J. Craig Williams will talk with Constitutional Law Professors Mark Tushnet and William Eskridge about what the history of both the gay rights and the civil rights movements have to say for the future of gay rights in America.
• Harvard Law Professor Mark Tushnet specializes in constitutional law and theory, with a focus in examining the practice of judicial review in the U.S. and worldwide. He has served as a law clerk to Justice Thurgood Marshall. Currently, his focus is in constitutional history and the development of civil liberties. He is known for his critical and controversial analysis of Supreme Court rulings, including Brown v. The Board of Education and Roe v. Wade.
• William Eskridge, Yale Law Professor, focuses in statutory interpretation. He represented a same-sex-married couple from 1990-1995 who sued for recognition of their marriage and has published many books covering the political framework of gay rights. The historical component of his book GayLaw was the basis of an amicus brief he drafted for the Cato Institute and for much of the Court’s (and dissenting opinion’s) analysis in Lawrence vs. Texas, the decision which made same-sex sexual activity legal in every U.S. state.
These law professors will provide unique insight to the future of gay rights through their knowledge and experience with Supreme Court rulings and civil liberties movements.
Thanks to our sponsor, Clio.
• Harvard Law Professor Mark Tushnet specializes in constitutional law and theory, with a focus in examining the practice of judicial review in the U.S. and worldwide. He has served as a law clerk to Justice Thurgood Marshall. Currently, his focus is in constitutional history and the development of civil liberties. He is known for his critical and controversial analysis of Supreme Court rulings, including Brown v. The Board of Education and Roe v. Wade.
• William Eskridge, Yale Law Professor, focuses in statutory interpretation. He represented a same-sex-married couple from 1990-1995 who sued for recognition of their marriage and has published many books covering the political framework of gay rights. The historical component of his book GayLaw was the basis of an amicus brief he drafted for the Cato Institute and for much of the Court’s (and dissenting opinion’s) analysis in Lawrence vs. Texas, the decision which made same-sex sexual activity legal in every U.S. state.
These law professors will provide unique insight to the future of gay rights through their knowledge and experience with Supreme Court rulings and civil liberties movements.
Thanks to our sponsor, Clio.
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This Is Too Much, Even For Texas
Apparently it still is the wild west in some parts of Texas. This goes way beyond standing your ground or protecting your home. As reported by khou.com:
It happened in the 14400 block of Cypress Meadows Drive [in Harris County, Texas]. Investigators said the man was home when three robbers kicked their way into his home. The homeowner grabbed his gun.
These folks picked the wrong door to kick in. Hell, they picked the wrong state.
The homeowner ran outside and shot [and killed] a 47-year-old woman through the window of a car.
In case you missed that, the would-be burglars were fleeing in a vehicle when the homeowner shot and killed one of them. Clearly that fleeing part is a minor detail.
“I totally defend his decision,” said neighbor Doreen Hodgson. “Homeowners are tired of working hard and people feeling you can just take what you worked hard for.”
Investigators said her two partners in crime, both males, escaped in a green Chevy pickup truck.
Fortunately for them, the homeowner didn’t have an AK, or there wouldn’t have been an escape.
Neighbors are hoping this incident will send criminals a stern message. “Think twice,” Hodgson said.
Here’s the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/k3Y3d-lPS4Q/as-2.html
Could It Be Satan? Yes, Says Union in Dispute With Law School
Sometimes the devil's in the details. Here's one case where that's not just a cliché but an allegation
Affirmative action ban in state constitution violates US constitution (8-7)
Michigan voters adopted a state constitutional amendment that prohibits "all sex- and race-based preferences in public education, public employment, and public contracting."
The 6th Circuit (8-7) held this provision - as it relates to education - violates the 14th amendment's equal protection clause.
Coalition to Defend Affirmative Action v. Univ of Michigan (6th Cir 11/15/2012)
(Plaintiffs limited their challenge to racial discrimination in public education.)
The court said that a black applicant could seek adoption of a constitutionally permissible race-conscious admissions policy only through the "lengthy, expensive, and arduous process" of amending the state constitution. On the other hand, someone wishing to change any other aspect of a university's admissions policy has four options - lobby the admissions committee, petition the leadership of the university, seek to influence the school's governing board, or initiate a statewide campaign to alter the state's constitution.
"The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change."
Seven judges wrote five DISSENTING opinions. Six said that the majority relied on two US Supreme Court cases that "have no application here," and one said that the majority relied on "an extreme extension" of those cases. The cases are Hunter v. Erickson, 393 US 385 (1969), and Washington v. Seattle Sch Dist, 458 US 457 (1982).
Source: http://www.lawmemo.com/blog/2012/11/affirmative_act.html
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LinkedIn for Legal Professionals
Lawyers consistently tell us that LinkedIn is the social media platform that makes the most sense for lawyers and other legal professionals. They like the professional and business focus of LinkedIn as compared to the "personal" focus of Facebook and other platforms. However, lawyers also always tell us that they wish they could use LinkedIn better than they do now. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell and special guest Allison Shields discuss the new book, LinkedIn in One Hour for Lawyers, how lawyers can make better use of LinkedIn, and some practical tips lawyers and others can implement right away with LinkedIn.
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Lawyer2Lawyer 7th Anniversary
On the longest continually produced legal podcast, Lawyer2Lawyer hosts Bob Ambrogi and J.Craig Williams share their experiences with great guests and insightful legal topics - some serious and some not so serious. And hear a behind the scenes special interview.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/08/lawyer2lawyer-7th-anniversary/
So You Knew The Car Belonged To A Deputy?
The Juice was going to give the perp the benefit of the doubt on this – like maybe he didn’t know it was a cop’s car – but then he read the rest of the article. Poof! went the benefit of the doubt. As reported by tcpalm.com:
Sheriff’s deputies are looking for a suspect in a burglary to an off-duty deputy’s personal vehicle, according to a news release.
So, you’re thinking, maybe he didn’t know it was a cop’s car. Well …
The vehicle was burglarized Thursday while the off-duty deputy was at the beach at Inlet State Park, according to the release. His department identification, badge and off-duty handgun were stolen, along with his wallet and credit cards.
So, not only did he know, but …
The credit cards were used at the Publix in the Taylor creek Commons Plaza soon after the burglary, according to the release. The suspect was seen wearing a black t-shirt and pushing a shopping cart.
He used the credit cards! Enjoy your freedom, perp. It won’t last. Here’s the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/MTs3Dj5eVto/sf.html
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Trial With Many F-Bombs, Including On Juror’s Shirt
One might think the f-bomb has the power of an a-bomb, the way folks deal with it. Take the recent case of a judge in New York who was not pleased with the shirt an alternate juror was wearing. Per the New York Post:
The shirt in question, worn by 19-year-old alternate No. 3, Nneka Eneorj, as she sat in the front row of the jury box, caught the judge’s eye just as the defendant was about to take the stand. “WHO THE F[UCK] IS KANYE WEST?” the shirt read, the offending obscenity resting just above the wood veneer rail of the jury box.
Manhattan Supreme Court Justice Thomas Farber ordered the other jurors out of the courtroom — directing Eneorj to stand before his bench.
Uh-oh.
“Do you think it’s appropriate to wear a shirt that says ‘f—’ on it in my courtroom?” the judge asked, anger in his voice.
Based on the reporting, The Juice is unclear. Did the judge say “f—” or “fuck”? If it was the latter, oh no you din’t! Anyway …
When Eneorj started to protest about having a sweater on — not that it covered the front of the shirt — the judge cut her off, demanding, “You’re excused.” “Sounds like a personal problem,” she sniffed of the judge as she walked out of the courthouse, indignantly.
So she’s already an alternate juror, and is not even given the opportunity to turn her shirt inside out? Oh, and here’s some of the testimony from the case later that day:
Officer David London — caught on surveillance tape delivering a violent, 20-blow baton beating to a prone suspect in an Upper West Side lobby two years ago — let at least a dozen “F-bombs” fly as he recounted what suspect Walter Harvin was purportedly threatening as the blows fell. Among Harvin’s shouts, London told the remaining jurors, were, “You can’t take me,” “I’m gonna f—ing kill you,” and, it’s derivation, “I’m gonna f—ing kill you motherf—er.”
And here’s Ms. Eneorj after leaving the courthouse:
“You will not believe what the f[uck] just happened!” she gabbed into her cell phone, as two news photographers snapped away on the sidewalk outside.
Here’s the source, including a photo.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/s0ka8-yzPlM/ss-2.html
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Paralegals Are Key in Witness Preparation
Katherine James was getting her masters in acting when her mentor was called to jury duty. The stories he had after his experience in court inspired her to open ACT of Communication: Consultants in the Art of Advocacy. The organization brings state-of-the-art communication skills to attorneys and their witnesses. James uses what she learned in acting school, like the importance of eye contact and clear communication, to prep attorneys and witnesses for the courtroom. With more than 30 years of experience, she has helped take more than 15,000 cases to trial.
On this edition of The Paralegal Voice host Vicki Voisin talks with James about her career in witness preparation and the importance of paralegals in her work. James stresses that paralegals are the key to getting to know witnesses, the first step to making them feel comfortable with their role in the case. She also provides tips for witness preparation such as practicing on camera, the importance of appearance and wardrobe, and more.
There is also a surprise interview at the end of the show where listeners can get to know Jericka Lyon, fellow paralegal and winner of a trip to Los Angeles and tickets to the Dancing With the Stars Finale through the Legal Talk Network giveaway!
Special thanks to our sponsor, National Association of Legal Assistants (NALA).
On this edition of The Paralegal Voice host Vicki Voisin talks with James about her career in witness preparation and the importance of paralegals in her work. James stresses that paralegals are the key to getting to know witnesses, the first step to making them feel comfortable with their role in the case. She also provides tips for witness preparation such as practicing on camera, the importance of appearance and wardrobe, and more.
There is also a surprise interview at the end of the show where listeners can get to know Jericka Lyon, fellow paralegal and winner of a trip to Los Angeles and tickets to the Dancing With the Stars Finale through the Legal Talk Network giveaway!
Special thanks to our sponsor, National Association of Legal Assistants (NALA).
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Monday, October 28, 2013
Surviving the Workplace Transition – Tips from NALA
On this edition of The Paralegal Voice, co-host Vicki Voisin welcomes Elizabeth H. Nellis, ACP and Beverly A. Pace, ACP from NALA to discuss tips for transitioning into the legal workplace and how to survive once you are there. Is what you are wearing working against your chance at a job? Listen in as they go over common first-day mistakes and pitfalls you can avoid.
Source: http://legaltalknetwork.com/podcasts/paralegal-voice/2013/02/school-workplace-transition-nala/
Tenth Circuit Finds that Jury Must Determine Whether “Notes Are Securities” in a Securities Fraud Action
In United States v. McKye, No. 12-6108, 2013 U.S. App. LEXIS 17297 (10th Cir. Aug. 20, 2013), the United States Court of Appeals for the Tenth Circuit reversed the conviction of Brian William McKye for securities fraud in violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b). The Tenth Circuit held that in a criminal action for securities fraud, the jury must be permitted to determine whether a “security” actually exists. The Tenth Circuit held that the United States District Court for the Western District of Oklahoma erred in not leaving this issue for the jury to decide and instead giving the jury an instruction that “notes” are “securities.”
The United States charged McKye with eight counts of securities fraud, in violation of 15 U.S.C. §78j(b), and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). Heritage Estate Services, LLC (“Heritage”), an entity owned or operated by McKye, prepared revocable trusts for its clients. Clients of Heritage who were unable to afford its trust preparation services were given an option to finance the costs and sign a promissory note agreeing to pay the balance due over a thirty-six-month period (the “trust loan”). Heritage also marketed certain investment notes titled “Premium 60 Accounts.” These notes guaranteed an annual return of between 6.5% and 19.275% for five years. Investors were told their investment notes were “backed by real estate and secured by liens that would be perfected by Global West.” Witnesses testified that some of the money received from the investment notes were used to pay investors, and Heritage and McKye’s personal and business expenses.
At trial, McKye requested the district court to instruct the jury that they must decide whether the investment notes at issue constituted “securities” under the applicable statutes. The district court rejected McKye’s request. It reasoned that “a note [is] considered a security, unless there are certain features to it.” The district court found that the notes at issue met the definition of “securities” and no evidence was presented to conclude otherwise. The jury convicted McKye on conspiracy and seven of the eight securities fraud counts. McKye appealed.
The Tenth Circuit reversed McKye’s conviction, holding that the trial court erred in rejecting McKye’s jury instruction request. The Tenth Circuit reasoned that under Reves v. Ernst & Young, 494 U.S. 56, 63 (1990), not all “notes” are “securities” and certain factors — e.g., motivation, distribution, expectation and risk — determine whether a “note” is a “security.” Thus, “the question of whether a note is a security has both factual and legal components” and is not necessarily automatically outside the province of the jury. However, the presence of a mixed question of law and fact is not sufficient to require a jury instruction. In relying on United States v. Gaudin, 515 U.S 506, 511-13 (1995), the Tenth Circuit noted that “mixed questions of fact and law must only be submitted to the jury if they implicate an element of the offense.” An element of securities fraud is the existence of a “security.” Therefore, since not all notes are securities and the existence of a security is an element of a securities fraud case, the jury should have been instructed to determine whether the investment notes at issue actually constituted “securities.”
The Tenth Circuit disagreed with the government’s argument that the failure to give McKye’s requested jury instruction was harmless error. McKye presented testimony at trial that there was insurance that ameliorated the risk to investors, which is one of the factors for determining whether a “note” is a “security,” and that the Premium 60 Accounts were partially secured by the trust loans. This evidence demonstrated that the issue of whether the investment notes constituted “securities” for the purposes of securities fraud was, in fact, contested.
The Tenth Circuit thus makes clear that in an action for securities fraud a jury, and not the court, must determine whether the “notes” at issue constitute “securities.” The Tenth Circuit reasons that not all “notes” are “securities,” and the presence of a “security” is a necessary element of securities fraud. It is the responsibility of the party alleging securities fraud to establish all of the elements of securities fraud, including the existence of a security. Consequently, the court may no longer direct a jury in such cases that the existence of a “note” is per se the existence of a “security.”
For further information, please contact David Geneson at (202) 218-0030, John Stigi at (310) 228-3717 or Mercedes Cook at (213) 617-4190.
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LawBiz® Legal Pad: Successful Law Firms are All Alike Part 2
This week, Ed finishes his list of 10 traits that are common to all successful law firms.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/rzsW6LAginw/
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The Day Tripper Dilemma
If I was hoping to court the legally-ignorant, politically conservative reader, yesterday would not have been a good day for me. While lawprof Glenn Reynolds, Instapundit, couldn't be bothered to learn about the criminal justice system before opining about how to fix it, he had time to write about how mean I was to him. Not terribly surprising, given how lawprofs tend to be a bit sensitive,
What came of Reynolds' post was a curious thing, a swarm of his followers commenting in his defense. Most were just silly, reflecting the folks who follow his political agenda, and good for some lulz, but they raised an interesting dilemma: lacking education, practical experience or sufficient interest to learn about the substantive issues and problems involved, they ripped me a new one because the post here to which they were directed was the culmination of both numerous posts about Reynolds' disastrous Ham Sandwich Nation "fix" for the criminal justice system and even more numerous posts on the underlying issues.
One commenter made a good point, that my telling them to read a bunch of posts that would provide the substance that isn't in the one post to which they were directed is "weaksauce." He's right. It's not that this matters much, as they haven't come because they have any sincere interest in the subject. If they did, they would already be knowledgeable and wouldn't demand to be taught from the ground up.
But then, to the extent this is anything other than a humorous aside for those of us who are involved in criminal justice issues, it's an opportunity to educate the poor souls who are limited by Reynolds deep commentary (Heh?), and their point that the one post they read wasn't substantive is well-taken.
So if they can't be expected to read a hundred posts (and it's not really reasonable to expect them to do so), they lack any foundational knowledge on the subject and they're generally disinclined to disagree with their political guru, is there any way to address this gap?
Bear in mind that when the post that made Reynolds cry was written, it wasn't for the purpose of educating his followers but as the coda in the series of posts about his awful ideas to fix the system at the expense of defendants, which in turn was based on innumerable posts here about specific issues and problems with the system. Way too much to include in one post (and likely one full-length book, for that matter), and completely unnecessary for regular readers here or people who are knowledgeable about criminal law.
Obviously, I can't go back and rewrite the post as Criminal Law 101 for the benefit of Instapundit readers, with lengthy explanations that are obvious to the rest of us. Perhaps I should have anticipated that Reynolds would get all butthurt about it, write a post with his deepest thoughts, and cause an influx of his readers to come here to salvage his damaged dignity, but I didn't. And even if I had, it would have bored the daylights out of regular readers here. As SJ is neither political nor a plea for popularity among the Instapundit fans, the idea of writing a post in anticipation of the swarm seems outlandish.
One answer could be found on the flip side, if only Reynolds had an appreciation of the more thoughtful legal and practical impact of his politically driven ideas, such that his purportedly well-intended, if misguided, fixes were themselves more substantive, but it's hardly useful to blame the guy who proffers bad ideas for not understanding why his ideas are bad. If he did, he wouldn't have done so in the first place.
One might expect him, as a lawprof, to try to gain a far better basis of knowledge before going off, but that was one of the primary points of my rant about Reynolds in the first place. And he's playing to a political audience (which is a large part of the problem) rather than to an audience knowledgeable or seriously concerned about criminal law. It's easy to pass off shallow ideas to those who know nothing about the practical impact.
Yet, I missed an opportunity to educate a not insignificant group of day trippers who think they've got a clue because they read tripe like Reynolds' Ham Sandwich Nation. It's a shame to pass up an opportunity like that. It's a dilemma. I regret not having done a far better job of making use of the opportunity to illuminate.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
What came of Reynolds' post was a curious thing, a swarm of his followers commenting in his defense. Most were just silly, reflecting the folks who follow his political agenda, and good for some lulz, but they raised an interesting dilemma: lacking education, practical experience or sufficient interest to learn about the substantive issues and problems involved, they ripped me a new one because the post here to which they were directed was the culmination of both numerous posts about Reynolds' disastrous Ham Sandwich Nation "fix" for the criminal justice system and even more numerous posts on the underlying issues.
One commenter made a good point, that my telling them to read a bunch of posts that would provide the substance that isn't in the one post to which they were directed is "weaksauce." He's right. It's not that this matters much, as they haven't come because they have any sincere interest in the subject. If they did, they would already be knowledgeable and wouldn't demand to be taught from the ground up.
But then, to the extent this is anything other than a humorous aside for those of us who are involved in criminal justice issues, it's an opportunity to educate the poor souls who are limited by Reynolds deep commentary (Heh?), and their point that the one post they read wasn't substantive is well-taken.
So if they can't be expected to read a hundred posts (and it's not really reasonable to expect them to do so), they lack any foundational knowledge on the subject and they're generally disinclined to disagree with their political guru, is there any way to address this gap?
Bear in mind that when the post that made Reynolds cry was written, it wasn't for the purpose of educating his followers but as the coda in the series of posts about his awful ideas to fix the system at the expense of defendants, which in turn was based on innumerable posts here about specific issues and problems with the system. Way too much to include in one post (and likely one full-length book, for that matter), and completely unnecessary for regular readers here or people who are knowledgeable about criminal law.
Obviously, I can't go back and rewrite the post as Criminal Law 101 for the benefit of Instapundit readers, with lengthy explanations that are obvious to the rest of us. Perhaps I should have anticipated that Reynolds would get all butthurt about it, write a post with his deepest thoughts, and cause an influx of his readers to come here to salvage his damaged dignity, but I didn't. And even if I had, it would have bored the daylights out of regular readers here. As SJ is neither political nor a plea for popularity among the Instapundit fans, the idea of writing a post in anticipation of the swarm seems outlandish.
One answer could be found on the flip side, if only Reynolds had an appreciation of the more thoughtful legal and practical impact of his politically driven ideas, such that his purportedly well-intended, if misguided, fixes were themselves more substantive, but it's hardly useful to blame the guy who proffers bad ideas for not understanding why his ideas are bad. If he did, he wouldn't have done so in the first place.
One might expect him, as a lawprof, to try to gain a far better basis of knowledge before going off, but that was one of the primary points of my rant about Reynolds in the first place. And he's playing to a political audience (which is a large part of the problem) rather than to an audience knowledgeable or seriously concerned about criminal law. It's easy to pass off shallow ideas to those who know nothing about the practical impact.
Yet, I missed an opportunity to educate a not insignificant group of day trippers who think they've got a clue because they read tripe like Reynolds' Ham Sandwich Nation. It's a shame to pass up an opportunity like that. It's a dilemma. I regret not having done a far better job of making use of the opportunity to illuminate.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/12/the-day-tripper-dilemma.aspx?ref=rss
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Why Go with a Structured Settlement?
After an individual suffers a severe injury and a settlement is reached, he or she is left with the option of either taking a lump sum of cash, or a structured settlement. Today on Ringler Radio, Larry Cohen joins co-host and colleague, Keith Christie, to get a lawyer's perspective from Attorney Trey Haik from the law firm of Haik, Minvielle & Grubbs, on the benefits of the structured settlement and how a structure can financially support clients and their families for years to come.
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/08/why-go-with-a-structured-settlement/
It's Not Easy Being Weev (Update)
Appellants and amici briefs are now in at the Third Circuit on the appeal of Andrew Auernheimer's conviction for somehow violating the Computer Fraud and Abuse Act. I say "somehow" as the government was never pinned down on whether it was exceeding authorized access or unauthorized access. But they were clear that what he did was wrong, wrong enough to get him convicted and sentence to 41 months imprisonment.
Weev didn't help himself. Whether he wanted to be a martyr to the cause of geekdom or just unwilling to win except on his terms isn't clear. But his lawyer, Tor Eckland, couldn't control him, and had enough on his hands trying to defend Weev in what I believe to be his first trial*. While the prosecution was huge within the computer hacker community, it didn't garner the attention of Lori Drew's prosecution, lacking a dead child. But make no mistake, Weev's prosecution raises issues of monumental significance for all computer users.
Orin Kerr, who joined the defense team on appeal, gives a summary of the case.
Here are the basic facts. When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad.
The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.
Or to put it a bit more succinctly, Weev and Spitler stumbled on pages that were publicly accessible, but AT&T figured no one would find because there was no way to access them other than to have its iPad or, as stumble on them. They then did what geeks do, and exploited their discovery to see how far they could go. Rather than hand it over nicely to AT&T so it could cover its tracks and deny its screw-up, they gave it to a reporter to publish. AT&T was pissed, and the government was happy to prosecute as payback for quick and easy disclosure of your cellular communications the heinous crime of publicly embarrassing AT&T for being a computer idiot.
The appellant's brief, after a disturbing opening to the main argument that repeats the conventional wisdom from 1986 analogizing computers to physical trespass, takes the view that this just isn't a crime. As the pages were public, it cannot be unlawful access. The brief reads more academic than advocate, but does an admirable job of making its points.
There are two amici briefs, one arguing that this is how everybody uses the internet, and the other arguing that this is how sophisticated internet security experts use the internet, both reaching the same conclusion that affirmance of Weev's conviction would criminalize normal and lawful practices.
As everybody else involved relies on analogies, it seems appropriate despite my view that it's critical to stop using real world analogies to explain digital world conduct, to do the same. The prosecution's argument is that just because someone leaves their door unlocked doesn't mean a person can walk in and take what he wants. The defense argument is that when someone leaves their stuff in front of a picture window, passersby commit no crime by looking in and seeing what the person put on display. Neither analogy strikes me as fully satisfying.
The question for the rest of us is where the line is drawn between lawful and unlawful conduct based on a law crafted at the birth of public computer use and before there was any world wide web to consider. The language of the CFAA fails miserably to provide an answer, and there is certainly no "originalist" view since there was no internet in existence. What we are left with is empty, meaningless language being shoehorned into technology that didn't exist. It might have seemed like a good idea back in 1986, but we're paying for it now.
Nonetheless, Congress can't be bothered to do its job of crafting a law that might apply, and the court is left with trying to decipher criminality from inapt words and their limited grasp of how the tubes work (or that of their kids, their law clerks, or maybe the kid down the street).
The prosecution has a huge glaring hole that needs answering: Is there any middle ground for a URL that can be accessed without hacking a password but is otherwise not intended to be found, accessed or used except by a discrete, chosen group of users? The government wants the crime to depend on the subjective and transitory intent of the website owner, where "unauthorized" is defined as undesired. The defense wants a brightline test that says if it can be publicly accessed, then there can be no crime.
The government's position is not only untenable, but presents a threat to users that can't be tolerated. And indeed, it's so highly subjective, and selective, that it ignores that Google et al. violate it constantly with impunity. Do we want cookies and bots crawling all over us, capturing our personal info to feed back to people so they can sell us crap? I don't think so. But it prevailed below anyway.
The problem now is that the burdens shift on appeal, and it's the appellant's position that will be subject to scrutiny. Is there no limit to what we can access on the internet, as long as we don't hack the password? What if all the surrounding circumstances leave us with no doubt that the website owner doesn't want anybody coming in uninvited, so that no reasonable person can not be aware that he's entering a URL where he isn't welcome? Is that still okay?
Since the lines are drawn at polar extremes, and the arguments remain couched in poor analogies, and the judges will have a terrible time getting into the mindset of sophisticated computer users who think nothing of screwing around with user agents to see what they can find, and Weev felt compelled to handle himself in the typical, snarky, computer whizkid way that tends to just piss the crap out of everybody who isn't a snarky computer whizkid, this is going to be a tough fight.
But there remains one detail that I would have pounded hard, far harder than either the appellant or amici. Fair notice requires that the language of the CFAA, for smarter or stupider, state clearly what constitutes criminal conduct so that a person will know what not to do. By the Rule of Lenity, the failure of the law to adequately define a crime given the state of technology as it currently exists must resolve all ambiguities in favor of the defendant.
While no one knows what Congress might do if it is forced to recraft the CFAA, and they could make it even worse, what seems clear now is that it is far too unclear to imprison anyone whose conduct falls within that middle ground of not hacking a password and breaking through a brick wall. Maybe they would criminalize what happened here, but until the law makes clear where the line is drawn, the government can't just make it up at will. And the Third Circuit should not be so activist as to give a 2013 meaning to a 1986 law that the government pulls out of its butt to nail Weev.
Weev's conviction must be reversed, despite his attitude and mouth, because the rest of us used the internet too and if Weev is a criminal, so too are we all.
* I hasten to add, lest anyone think otherwise, that I think Tor did an exceptional job with this case, even the more remarkable given the circumstances.
Update: Via Volokh, the amicus brief of the National Association of Criminal Defense Lawyers has just become available. While I'm still going through it, my initial impression is that it's excellent, and fills in some of the gaps in the other briefs. Notably, putting them all together, the argument on behalf of Weev is overwhelming.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/09/its-not-easy-being-weev.aspx?ref=rss
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