Federal Court Allows Bush Administration To Withhold Records Detailing Torture And Abuse Of Guantánamo Prisoners

A federal judge today allowed the Bush administration to withhold unredacted transcripts in which 14 prisoners now held at Guantánamo Bay describe abuse and torture they endured in CIA custody. The decision comes in an American Civil Liberties Union lawsuit filed in March to enforce a Freedom of Information Act request for records from Combatant Status Review Tribunals that determine if prisoners held by the Defense Department at Guantánamo qualify as "enemy combatants."

Full article can be found here.

Guantánamo Judge Rejects Evidence Obtained Through Torture In Jawad Case

From the ACLU:

A military judge ruled today that the government cannot use statements made as a result of torture in the military commission case against Afghan national Mohammed Jawad. The judge held that Jawad's alleged confession to throwing a grenade at two U.S. service members and an Afghan interpreter was obtained after armed Afghan officials threatened to kill Jawad and his family. The government had previously told the judge that Jawad's alleged confession while in Afghan custody was central to the case against him.

Full article here.

GPS Evidence Might Drive Your Case Home

From Law.com

"A reporter recently interviewed me about in-car GPS navigation systems as evidence. Aside from vehicle tracking devices planted on suspect vehicles, neither of us could point to more than a few matters where GPS evidence played a role in court; yet, its untapped value to criminal and civil cases is enormous. Think how many murders, rapes, burglaries, robberies, thefts, kidnappings and drug deals could be solved -- and innocent persons exonerated -- by reliably placing suspects in space and time. DNA just puts the accused at the scene. Reliable GPS data puts the suspect there between 9:42 and 10:17 p.m. and reveals where she came from and went next."

Full article can be found here.

E-mail From Afghanistan

From The Atlantic:

"It was hard preparing to risk your life for something you don’t believe. It eats away your soul." An ex-Army officer contemplates contemplates the U.S. military effort in Afghanistan, and his recently completed third combat tour."

__________________________________

"I arrived in Bagram Air Force Base (BAF), Afghanistan on Sept. 27th, 2008, and over the course of two days, turned in my ammunition and sat through briefings about vehicle safety, family discord, suicide awareness, and mental health. Collectively, soldiers call them the “don’t-beat-your-wife classes.”

BAF is a sprawling military base full of shipping containers, new construction, gravel fields, military vehicles, hangars, fast food restaurants, Port-A-Johns and strangers in Army, Navy, Marine, Air Force, French, Polish, and Egyptian uniforms, or with Lockheed Martin t-shirts, or Slavic accents and Kellog Brown & Root (a subsidiary of Haliburton) ID tags hanging from their necks. People would salute me and wear reflective belts at night, which, having newly arrived from the highly kinetic Kunar Province, felt ridiculous."

Full article here.

Have Spokane Police Found Another Serial Killer?

LA Man Cleared of Murder After 10 Years in Prison

(AP) - A judge on Tuesday dismissed charges against a man who had spent a decade in prison for murder until his conviction was overturned.

Prosecutors told the judge they wouldn't retry the case against Mario Rocha because they couldn't locate crucial eyewitnesses.

"I'm like a butterfly coming out of its cocoon," said Rocha, who was surrounded by family and friends who moments earlier had erupted into applause in court. "It's a big sense of relief."

Full story here.

Myths of Underwater Recovery Operations

As the number of people using recreational waterways increases, so do the number Aof accidents, drownings, and violentcrimes, including homicides, that occur in such settings. This increase coupled with the influx of criminals seeking a watery repository for weapons and other evidence of wrongdoing has caused law enforcement agencies to become more involved in underwater recovery operations.

Full Article from the FBI Law Enforcement Bulletin can be found here.

Forensic Diving: The Latest in Underwater Investigation

Plane crashes, submerged vehicles, boating accidents, suicides, criminal homicide, swimming fatalities, ice rescues,and lost, damaged, or stolen evidencerecovery represent just a few of the incidents forensic divers encounter.These underwater investigativespecialists face a number of dangers, from underwater hazards to critical incident stress, but emerge from each case better prepared for the next. Agencies that recognize the unique needs of forensic diving teams can properly equip, train, and assist them in their public safety missions.

Full article from the FBI Law Enforcement Bulletin can be found here.

California Man Killed by Police in Mistaken Identity

(AP) A newlywed killed by police after he stepped outside his home to confront suspected burglars was shot in a case of mistaken identity, police said.

Julian Alexander died after being shot twice in the chest by a police officer who was chasing four burglary suspects early Tuesday morning.

Police Chief John Welter said the officer ran into Alexander, mistook him for one of the four juvenile suspects and shot him.

"The last thing we ever want to do, No. 1, (is) take somebody's life," he said. "And we certainly don't want to take the life of someone who is mistakenly believed to be involved in some criminal activity."

Full story here.

Washington Courts Online

This is a handy tool to find current events in Washington Courts along with information on Juvenile Court to the State of Washington Supreme Court. Also, the Judicial Info Systems is available; the Judicial Information System (JIS) is the primary information system for courts in Washington. It provides case management automation to appellate, superior, limited jurisdiction and juvenile courts. Its two-fold purpose is: (1) to automate and support the daily operations of the courts and (2) to maintain a statewide network connecting the courts and partner criminal justice agencies to the JIS database. It serves as a statewide clearinghouse for criminal history information, domestic violence protection orders and outstanding warrants. The benefits of this approach are the reduction of the overall cost of automation and access to accurate statewide history information for criminal, domestic violence, and protection order history.

Cold Case: Arthur Haines

Attorney Hina Shamsi Addresses Guantanamo

ACLU National Security Project Attorney and frequent Guantánamo Military Tribunal observer Hina Shamsi was featured in a live chat on Firedoglake in which she fielded questions about Guantánamo and the military commissions trials. It is a good overview on the ethical and legal problems that have plagued the proceedings in Guantanamo. An excerpt from the chat:

In a dramatic development in the commissions case against Mohammad Jawad, Lt. Col. Darrel Vandeveld, the lead prosecutor, resigned because he said he does not believe he can ethically proceed with the case.

Vandeveld testified that he turned from a “true believer” to “truly deceived” when he realized that possibly exculpatory information and other records were not being provided to defense lawyers as required — and simply could not be — because the process for gathering, maintaining and transferring records was in "utter disarray." According to Vandeveld, the systemic flaws "deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct."

It is worth a read.

The Case for Recorded Interrogations

Posted from The Innocence Project

In an op-ed piece appearing in the Los Angeles Times, Washington, D.C., police detective Jim Trainum explains why he believes all law enforcement agencies should videotape interrogations.

I've been a police officer for 25 years, and I never understood why someone would admit to a crime he or she didn't commit. Until I secured a false confession in a murder case.

I stepped into the interrogation room believing that we had evidence linking the suspect to the murder of a 34-year-old federal employee in Washington. I used standard, approved interrogation techniques — no screaming or threats, no physical abuse, no 12-hour sessions without food or water. Many hours later, I left with a solid confession.

Then we discovered that the suspect had an ironclad alibi. We subpoenaed sign-in/sign-out logs from the homeless shelter where she lived, and the records proved that she could not have committed the crime… Even though it wasn't our standard operating procedure in the mid-1990s, when the crime occurred, we had videotaped the interrogation in its entirety. Reviewing the tapes years later, I saw that we had fallen into a classic trap. We ignored evidence that our suspect might not have been guilty, and during the interrogation we inadvertently fed her details of the crime that she repeated back to us in her confession.

Trainum goes on to write that this case was a turning point for him. State lawmakers, he says, should begin to require the recording of interrogations to prevent false confessions and wrongful convictions. While more than 500 jurisdictions currently record interrogations, only 10 states mandate it. “The only police officers I've met who don't embrace recording interrogations are those who have never done it,” Trainum writes.

Neither the Federal Government nor Washington State Law Enforcement currently mandate recordings of confessions.

Touch DNA

Something new to be aware of in the forensic science world is "touch" DNA. Touch DNA is DNA that is left behind on surfaces such as clothing or food to try to get enough microscopic cells to identify (or rule out) suspects. Touch DNA can be used on surfaces where there is no visible stain left behind but where microscopic material may have been left behind. Touch DNA has received it's biggest acclaim in the JonBenet Ramsey case...It was suspected that Ramsey's killer removed her clothing and redressed her. By scraping the clothes, investigators were able to retrieve enough cells to rule out Ramsey's family members-the DNA returned to an unidentified male attacker. Full story here.

NSA Spying

Message pad created by PosseComment@US and posted here
As many are aware, the US Government, with the assistance of many of the major telecommunications companies have been participating in illegal secret surveillance of American citizens' phone calls since 2001. In 2005, the New York Times was the first to break the story and the President admitted at least one portion of it: warrantless surveillance of Americans who were "believed" to be communicating with terrorists. Unfortunately, as has recently become clear, these government surveillance programs were in fact used to monitor the private communications of people.

The ACLU and the Electronic Frontier Foundation are involved in litigation regarding the NSA. The ACLU posted this update recently:

Two former military intercept operators — the people who actually intercept, monitor, and collect international telephone and email communications — told ABC News that "hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home." The operators worked for the National Security Agency ("NSA"), the spy agency chiefly responsible for international surveillance. They report that NSA routinely listened in on the innocent, and sometimes intimate, conversations of Americans abroad. There were apparently no effective procedures in place to filter out these kinds of communications.

The NSA program went beyond invading the personal privacy of Americans abroad (and their friends and family on the other end of the line). NSA also directed its surveillance powers at well-established humanitarian organizations, like the International Red Cross and Doctors Without Borders. As one whistleblower told ABC News: "We knew they were working for these aid organizations. . . . And yet, instead of blocking these phone numbers we continued to collect on them."

Hmmmm...you never know who is listening.

Get to Know Your Supreme Court

This video from the ACLU is video one from a series of four. This is the first video in the series and introduces us to our Supreme Court. It is worth a watch to get a sense on what the make-up of the Court is when we are trying to predict what they will do this term.

LAPD Blames Fingerprint Errors for False Arrests

(AP) — Los Angeles police acknowledge they've arrested innocent people because of faulty fingerprint analysis.

An internal police report obtained by the Los Angeles Times details two cases in which charges were dropped after problems with the fingerprint analysis were discovered. Police say they do not know how many other people may have been falsely accused because of the problems.

Rhonda Sims-Lewis, chief of the Police Department's technical bureau, says changes have since been made to procedures in the department's Latent Print Unit.

The internal report blames shoddy work and poor oversight for the mistakes.

Full story here.

The Things He Carried

From The Atlantic:

Airport security in America is a sham—“security theater” designed to make travelers feel better and catch stupid terrorists. Smart ones can get through security with fake boarding passes and all manner of prohibited items—as our correspondent did with ease.

"If I were a terrorist, and I’m not, but if I were a terrorist—a frosty, tough-like-Chuck-Norris terrorist, say a C-title jihadist with Hezbollah or, more likely, a donkey-work operative with the Judean People’s Front—I would not do what I did in the bathroom of the Minneapolis–St. Paul International Airport, which was to place myself in front of a sink in open view of the male American flying public and ostentatiously rip up a sheaf of counterfeit boarding passes that had been created for me by a frenetic and acerbic security expert named Bruce Schneider. He had made these boarding passes in his sophisticated underground forgery works, which consists of a Sony VAIO laptop and an HP LaserJet printer, in order to prove that the Transportation Security Administration, which is meant to protect American aviation from al-Qaeda, represents an egregious waste of tax dollars, dollars that could otherwise be used to catch terrorists before they arrive at the Minneapolis–St. Paul International Airport, by which time it is, generally speaking, too late."

Full story here.

F.B.I. Struggles to Handle Wave of Financial Fraud Cases

From the New York Times:

The Federal Bureau of Investigation is struggling to find enough agents and resources to investigate criminal wrongdoing tied to the country’s economic crisis, according to current and former bureau officials.

The bureau slashed its criminal investigative work force to expand its national security role after the Sept. 11 attacks, shifting more than 1,800 agents, or nearly one-third of all agents in criminal programs, to terrorism and intelligence duties. Current and former officials say the cutbacks have left the bureau seriously exposed in investigating areas like white-collar crime, which has taken on urgent importance in recent weeks because of the nation’s economic woes.

Full story here.

An Oldie But a Goodie...Rush Limbaugh the Drug Addict: Jail or Not?

While we're on the topic of top ten criminal justice videos...

Top Ten You Tube List

Some of these videos we have posted on before, notably the Incarcerex video (one of my personal favorites), but this list by Matt Kelley at Change.org is worth looking at. Another sign that (great?) minds think alike is that I looked at Change.org today after I put the post up about Seattle's drug court...and found a similar post there.

A Little Treatment Goes A Long Way

An interesting post in the New York Times regarding the Seattle Drug Court is worth noting-including a slide show of some of the recent graduates of the Seattle program. What we have learned is that drug courts work to give people lasting change and a chance at a drug free life.

By ERIK ECKHOLM
Published: October 14, 2008

SEATTLE — It was not your usual courtroom scene. For one thing, the judge choked up as he described one woman’s struggle with opiate addiction after her arrest for forging prescriptions.
Over the last three years, she had repeatedly missed court-ordered therapy and hearings, and the judge, J. Wesley Saint Clair of the Drug Diversion Court, at first meted out mild punishments, like community service. But last winter, pushed past his forgiving limit, he jailed her briefly twice. The threat of more jail did the trick.
Now she was graduating — along with 23 other addicts who entered drug court instead of prison. Prosecutors and public defenders applauded when she was handed her certificate; a policewoman hugged her, and a child shouted triumphantly, “Yeah, Mamma!”...

Nationwide, 70,000 offenders are in adult or juvenile drug courts at any given time, with the number growing, said C. West Huddleston III, director of the National Association of Drug Court Professionals. The concept has been supported by the Clinton and Bush administrations.

Supreme Court Gearing Up for Fall...Stay Tuned

Image courtesy of Northern Sun.
The ScotusWiki has an indexed page of the US Supreme Court arguments scheduled for argument this term. We will be watching with particular interest to some Fourth Amendment cases: Arizona v. Gant (07-542) - which will address if police can continue to use the "search incident to arrest doctrine" in car searches when the arrested subject is already detained; Herring v. United States (07-513) - which will address whether the exclusionary rule applies to information erroneously provided by law enforcement; and Pearson v. Callahan (07-751) - which will address whether the a person has "consented" to a warrantless entry by police if that person allowed an undercover informant into his/her home.
Oral argument was heard in Gant and Herring on October 6, 2008. For analysis see ScotusBlog. Stay Tuned to see how the Fourth Amendment fares.

Data Mining...Stop Big Brother From Watching

Data mining is the disturbing practice of law enforcement gathering information in an effort to predict future crimes. Predict future crimes? Wasn't that a Tom Cruise movie?
From ACLU Blog

Yesterday, a report on data mining was released by the Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals (a.k.a.: CTPDITPONG). The committee was formed by the National Research Council at the behest of the Department of Homeland Security to study the effectiveness of data mining techniques currently in place...
Turns out the committee feels pretty much the same way we do. Its report "Protecting Individual Privacy in the Struggle Against Terrorists" outlines several recommendations and, frankly, they make a lot of sense. To quote our release:
The committee made several recommendations in the report including greater external oversight of information gathering programs, a framework for both classified and unclassified programs and an emphasis on the quality, not quantity, of data.The report also discourages using behavioral patterns as a predictive measure, and considers any program attempting to assess an individual’s state of mind as suspect.The committee briefed both the DHS and the National Science Foundation (the sponsors of the report) but has not received any feedback.

Full Article Here

Kansas State Patrol - Records

Kansas Highway Patrol General Headquarters

Records Section

122 S.W. 7th Street
Topeka, Kansas 66603

Phone: (785) 296-6800

Documents Say Detainee Near Insanity

A U.S. military officer warned Pentagon officials that an American detainee was being driven nearly insane by months of punishing isolation and sensory deprivation in a U.S. military brig, according to documents obtained by The Associated Press.

While the treatment of prisoners at detention facilities at Guantanamo Bay, Cuba, and in Afghanistan and Iraq have long been the subject of human rights complaints and court scrutiny, the documents shed new light on how two American citizens and a legal U.S. resident were treated in military jails inside the United States.

The Bush administration ordered the men to be held in military jails as ''enemy combatants'' for years of interrogations without criminal charges, which would not have been allowed in civilian jails.

The men were interrogated by the CIA and Defense Intelligence Agency, repeatedly denied access to attorneys and mail from home and contact with anyone other than guards and their interrogators. They were deprived of natural light for months and for years were forbidden even minor distractions such as a soccer ball or a dictionary.

Full story here.

I Know One Way to Save Some $...

Grits for Breakfast, best blog name ever, had an interesting post this morning on the situation developing in California: California requested $7 billion in federal bailout aid at the same moment they're about to be held in contempt for not ponying up for an $8 billion prisoner health care tab. "US Federal District Judge Thelton Henderson made it clear Monday he expects California to pay $8 billion for seven new inmate medical facilities." Of course, with a few less people in prison for life sentences as "habitual offenders" for stealing $150 in videotapes from K-Mart, California might not need EIGHT BILLION DOLLARS.

What went down 25%? Pass the Tums.

What does your personal 401(k) and Federal Criminal Defense Investigation have in common? In a word: nothing. However, I know most readers out there have 401(k), 403(b), 457, Roth IRA's, ect. and I want to add some comments about the current financial debacle unfolding before us. From The Atlantic (a personal favorite):

"Don't look. Seriously, don't look. I have no idea what's going on with any of my equity investments, because that is not short term money that I need to keep my eye on.

If you look you will get upset, and you will be tempted to do something stupid. I can't guarantee that the market won't drop further and you won't regret having held on. But as a general rule, selling into a massive liquidity crisis is a pretty bad idea. Selling in a panic because your assets just dropped 30% is almost certainly a bad idea.

The good news is that while the stock market can take a long time to recover, it historically doesn't actually go down for more than a couple of years.

Yeah, that's not very good news. But unless you're planning to retire right now, my advice remains the same: don't look."

To The Economist:

"Amid the uncertainty of the global financial crisis a pattern has emerged. First, the world’s central bankers and finance ministers construct bail-outs and rescue packages for teetering financial institutions. Then investors give their manoeuvres an emphatic thumbs-down. The pattern is becoming ever more pronounced.

In Europe, an unseemly mishmash of bank rescues and a scramble across the continent to beef-up national deposit-protection schemes have done nothing to solve the paralysis in money markets. Stockmarkets steadied themselves a little, early on Tuesday October 7th, after a series of dramatic falls on Monday. But the overnight dollar London interbank offered rate (LIBOR), the rate that banks are charged for borrowing from each other and other investors, climbed by a heart-stopping 157 basis points to 3.94%."

Or we can simply take the advice of King Solomon's advisor: This too shall pass.

Judge: Let Chinese Muslims from Guantanamo into US

(AP) - A federal judge ordered the Bush administration Tuesday to immediately free 17 Chinese Muslims from Guantanamo Bay into the United States, rebuking the government in a landmark decision that could set the stage for the release of dozens other prisoners in Cuba.

U.S. District Judge Ricardo M. Urbina said it would be wrong for the government to continue holding the detainees, known as Uighurs (WEE'-gurz), who have been jailed for nearly seven years, since they are no longer considered enemy combatants. Over the objections of government lawyers who called them a security risk, Urbina ordered their release in Washington D.C. by Friday.

Full story here.

Suited and Booted

From The Economist:

A former Soviet military-intelligence officer, stranded in Africa by the collapse of his country, turns to gun running and builds a lucrative international business. It is the sort of outfit that thrives on pointless wars in failed, dirt-poor places. But it also plays a part in some bigger conflicts. Its list of past customers includes the world's best-known terrorist groups, such as al-Qaeda and Colombia's FARC—and Western governments too. Efforts to round up the man at the centre of this web are frustrated, sometimes by bad luck, and sometimes apparently by squabbles in the rich world between those who want to prosecute and those who protect him.

Full story here.

National Security Agency

NSA FOIA Requester Service Center
POC: Marianne Stupar
NSA FOIA Requester Service Center/DJP4
9800 Savage Road, Suite 6248
Ft. George G. Meade, Maryland  20755-6248

Telephone: (301) 688-6527
Fax: (301) 688-4762

ACLU Condemns New FBI Guidelines

New FBI guidelines governing investigations were released after being signed by Attorney General Michael Mukasey. The American Civil Liberties Union quickly blasted the Department of Justice and FBI for ignoring calls for more stringent protections of Americans’ rights.  The guidelines replace existing bureau guidelines for five types of investigations: general criminal, national security, foreign intelligence, civil disorders and demonstrations.  The ACLU has been vocal in its disapproval of the overly broad guidelines, citing both the FBI’s and DOJ’s documented records of internal abuse.

 

Full article here.

Twilight of the Assassins

From The Atlantic:

In the wake of Iran-Contra, Posada lay low, careful to avoid a subpoena to the Senate hearings on the scandal. He settled down in San Salvador with his longtime mistress and continued to devise schemes to eliminate Fidel Castro. In 1997, Posada began bombing tourist targets in Cuba. In June 1998, I showed him a fax he had sent a collaborator instructing him to collect funds from supporters in Union City, New Jersey. “If there is no publicity, the job is useless,” he had written. “The American newspapers will publish nothing that has not been confirmed. I need all the data from the discotheque in order to try to confirm it. If there is no publicity, there is no payment.” At the bottom of the fax was his distinctive handwriting and signature, “Solo.” I had received a copy of the fax from an informer working in Posada’s office, who had given the original to the FBI. When I showed Posada the fax, he fretted that it could cause him problems with the FBI. He need not have worried.

Full story here.

"What happened to the Fourth Amendment? Was it Repealed Somehow?"

This quote from Judge Thomas from the Ninth Circuit Court of Appeals in the case of United States v. Comprehensive Drug Testing which just went en banc (heard by the whole Ninth Circuit), analyzed by the Ninth Circuit Blog. This case began when the feds began issuing subpoenas and search warrants to drug testing companies for results and computer equipment in its investigation into Major League Baseball players' use of steroids. The subpoenas were quashed in three jurisdictions, and the government took a consolidated appeal. A panel of the Ninth Circuit determined that the subpoenas were not harassing in nature and were not unreasonable. Luckily, Judge Thomas dissented, questioning whether the Fourth Amendment was somehow repealed. The Ninth Circuit has taken the case en banc, and will hopefully examine (and limit) the boundaries of the Fourth Amendment when it comes to search warrants on computer information. It shows the ongoing need to investigate and carefully examine any case with search warrants/subpoenas for electronic information. Conversely, when authoring subpoenas for electronic information, carefully tailor your requests so that they are not rejected.

Courthouse Confessions...In Their Own Words

The Courthouse Confessions Blog tells the stories of the arrested, many of whom turn into our clients, with photos by award winning photographer Steven Hirsch. It tells people's stories of their intersection with "the criminal justice system" with amazing photographs. It is the story from the street of the fascinating, often somewhat Kafkaesque, interactions between police, citizens, jails, and courts.

Laptop Privacy at the Border?

From ACLU of Washington:

Washington Legislators Try to Protect Laptop Privacy at Borders

Written by Doug Klunder
There's been some media attention lately to the lack of privacy US citizens face when returning home from abroad, especially with electronic equipment such as laptops and cell phones. This situation is an entirely foreseeable outcome from several Supreme Court decisions, which have essentially declared the border to be a Constitution-free zone. Most notable is U.S. v Flores-Montano, decided a few years ago. The Court unanimously said it was OK for Customs officials to disassemble a car at the border -- with no suspicion of wrongdoing! It's hard to believe, but true: next time you drive to Vancouver, your car may be legally dismantled at the whim of a Customs agent.

Not surprisingly, Customs and Border Patrol (CBP) doesn't see any reason that authority doesn't also extend to looking at laptops, cell phones and iPods that travelers bring across the border. And it's a lot easier to snoop through a computer than it is to take apart a car, so there are a growing number of stories of electronic equipment being searched at the border for no identifiable reason. Not only searched, but copied -- letting the Federal government peruse all files at its leisure, and retaining those files indefinitely. We recently discovered that the reason the stories are growing is that CBP has changed its internal policy. Whether or not it was required by the Constitution, CBP had a policy for over 20 years of only reading personal material when there was suspicion of wrongdoing, and only copying it when there was probable cause of wrongdoing (a higher standard). But the reasonable suspicion requirement was dropped a year ago, and the probable cause requirement was also dropped in the past few months.

So now laptops are treated the same as cars -- available to be searched and copied simply at the whim of a Customs agent. Whether it's a letter to Aunt Sally, emails to your lawyer, proprietary business information or photos of your trip to a topless beach, don't expect to keep any secrets from Customs if it's in a file stored on your laptop, even if it's encrypted. For a good description, take a look at this Washington Post article.

The good news is that CBP doesn't exist in a vacuum. Even if CBP doesn't think there's anything wrong with looking at people's electronic lives on a whim, some legislators do--including legislators from Washington state. Senator Maria Cantwell has co-sponsored S. 3612 (link not yet available) and Rep. Adam Smith has sponsored H.R. 7118, both called the Travelers' Privacy Protection Act of 2008. They would require Customs agents to have a reasonable suspicion of wrongdoing before searching electronic equipment such as laptops, and would require them to obtain a warrant before seizing or copying files.

“The Bush administration has sought to undo over twenty years of legal protections by searching personal electronics without probable cause,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “We applaud the introduction of this legislation and call on Congress to act quickly on this crucial issue for travelers. In today’s world, laptops, cell phones and digital cameras are the storehouses for our most personal information. We cannot allow our privacy to be breached under the guise of border security.”

Let's hope this bill passes. It's only common sense to expect some modicum of privacy when innocently travelling for either business or pleasure. Even if CBP doesn't have that common sense, Congress can force them to get some.

Counting Those Plants Can Make a Difference

In October of this year, some law enforcement officer will have the dubious honor of making the 20 millionth arrest for marijuana.
It is with that in mind that we consider counting plants when investigating a federal marijuana case. It is imperative to counts plants in a manufacturing case especially if the plant amount is close to a mandatory minimum. This recent blog post from the Federal Defenders of Eastern Washington and Idaho explains a little of the law:

USSG 2D1.1(c), Application Note E, states: “In the case of an offense involving marihuana plants, treat each plant regardless of sex, as equivalent to 100 G of marihuana. Provided, however, that if the actual weight of the marihuana is greater, use the actual weight of the marihuana.”

The Guideline’s equivalency table is quite punitive. An actual plant typically does not yield 100 grams of marijuana. Recognizing this aspect of the Guideline, the Sixth Circuit recently held in US v. Olsen, 537 F.3d 660 (6th Cir. Aug 14, 2008), that the equivalency table only applies to defendants convicted of manufacturing marijuana. In the context of the less serious offense of possession with intent, the equivalency table can only be applied to live, unharvested plants seized by police. When it comes to harvested plants that are either seized during under-cover sales or during a search, actual weight must be used. According to the Sixth Circuit, this more lenient approach is applicable even when conduct relevant to the defendant’s offense of conviction involved manufacturing marijuana.

The Ninth Circuit has not reached this exact issue. The closest case is US v. Wegner, 46 F.3d 924 (9th Cir. 1995).

Keep in mind that for purposes of the guidelines, a "plant" is an organism having leaves and a readily observable root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is a marihuana plant). USSG 2D1.1 Application Note 17. When investigating a marijuana grow case, make a motion or write a preservation letter to preserve the evidence and request a count which includes examining the plants for the roots especially when the numbers are close.

For even further reading on plants and the emerging field of "forensic botany" check out "The Green Revolution: Botanical Contributions to Forensics and Drug Enforcement" by Heather Miller Coyle, Carll Ladd, Timothy Palmbach, and Henry C. Lee. The article discusses how "forensic botany" can be used to determine if suspects were in certain areas by the use of pollen or by plant disturbances in an area and how fresh water ecology can be used to investigate water deaths. The article contains a section on the DEA and their increasing use of plant molecular biology techniques. Because each seed has it’s own unique genetic composition, DNA typing of marijuana grown from seed would allow one to link a leaf in an individual’s vehicle back to a plant from a growing area near the suspect’s home, for example.

Dropping Dime: An Incredibly Informative Primer

Image courtesy of CoupeDeVal

"Snitch", a series on Frontline a while back, "investigates how a fundamental shift in the country's anti-drug laws --including federal mandatory minimum sentencing and conspiracy provisions--has bred a culture of snitching that is in many cases rewarding the guiltiest and punishing the less guilty." The website and show is, sadly enough, still relevant ten years later as we have the same mandatory minimum laws that were discussed then. The site contains transcripts and recordings from the series as well as a Primer on Drug Laws and Snitching. The Primer has a nice history of why Congress gave us the mandatory minimum laws and the resulting human and financial costs of such a system. There are some indications that the tide is turning a bit with the attention to this topic lately especially in the reduction in the crack cocaine guidelines, increased attention to the use and regulation of informants, and bills before Congress.

With the US Supreme Court examining the case of Pearson v. Callahan on October 14th, the topic remains a hot one. Pearson involves whether the police can enter a home without a warrant under the theory that the resident consented by previously permitting an undercover informant into the home. The ScotusWiKi has a full accounting of the case including briefing in the Courts below and Amicus Briefs filed by the ACLU and NACDL among others. For additional tips on dealing with informants, check out this "Tools for Lawyers" section on the ACLU website. An interesting read there is the lecture outline from Justice Trott, of the Ninth Circuit Court of Appeals, who trains prosecutors concerning the use of informants in criminal prosecutions.

Ink-The Transformative Power of Change

Sometimes working in the criminal defense community feels like standing against the tide of negativity and it is easy to lose hope...which is why this video courtesy of Amnesty International is such an awesome reminder of the transformative power of pen, paper, and activism.

First the $ Crisis, then the Indictments

From NACDL:

September 24, 2008
New York Times
By Eric Lichtblau
WASHINGTON — The Federal Bureau of Investigation, under pressure to look at possible criminal activity in the financial markets, is expanding its corporate fraud inquiries in the wake of the tumult in the last 10 days, officials said Tuesday.

The F.B.I. has now opened preliminary investigations into possible fraud involving the four giant corporations at the center of the recent turmoil — Fannie Mae and Freddie Mac, Lehman Brothers and the American International Group, The Associated Press reported.

A government official, speaking on condition of anonymity because he was not authorized to discuss the issue publicly, said it was “logical to assume” that those four companies would come under investigation because of the many questions surrounding their recent collapse.

F.B.I. officials said Tuesday that the total number of corporate fraud investigations at the bureau was 26, an increase from the 24 open cases cited just a week ago by Robert S. Mueller III, director of the F.B.I. That number stood at 21 as recently as July, but the bureau has not named most of the targets.

Full article here

Technology in the Courtroom-Spiff up those presentations

As many an investigator knows, its not always easy to being part of the entourage in the courtroom...dealing with (sometimes crazy) attorneys and their (sometimes crazy) technology needs in the courtroom can tax even the most savvy and capable investigator. When you next find yourself in a trial or other proceeding dealing with courtroom presentation, check out the Trial Presentation Blog. Among the highlights...tips and resources on PowerPoint especially making your PowerPoint less common, courtroom presentation tips, and litigation software options. For example, a quick read is "PowerPoint in the Courtroom" which "is an 'easy read' reference guide that all attorneys [and their entourage] relying on PowerPoint should review."
Of course, the creator of the blog, Charles Perez, is available for hire for all your consultation and presentation needs. Luckily, Mr. Perez gives those who might not be able to afford his service, e.g. public defenders and the like, tips and advice on how to be better presenters in the courtroom. A worthy addition to the blogroll.

Guide to Vacating Washington Convictions

Published by the Washington State Patrol is a handy guide entitled "A Guide to When and How to Challenge, Seal, Vacate, or Expunge Criminal Records". The general rule for adult convictions is as follows: a person can move the Court to vacate a felony if that person has completed his/her sentence, there are no criminal charges pending, the conviction was for a non-violent offense, and the requisite time period has passed (10 years for a Class B, 5 years for a Class C, 3 years for a gross misdemeanor, 2 years for a misdemeanor).