Gang Signs

Find yourself needing to sort out some gang issues? Gangs OR Us offers numerous pages about gang identification to include, gang graffiti, gang clothing, gang tattoos, gang colors, signs and symbols, gang histories and backgrounds. There are dozens of pages and hundreds of links and videos. The site has explanations, videos, pictures, tattoos, and has lots of information about gangs. While the site has a bit of a law enforcement flavor, there is a wealth of information and links for expert witnesses.

Boyz in the Hood

While we are talking about gangs we should go back to old school.

Human Rights Month Video

Always a good time to count our blessings as the year ends and rededicate ourselves to fighting for justice..."No one is free when others are oppressed." Mahatma Gandhi.

Damage Done: The Drug War Odyssey

To purchase video, check here.

Saving Mexico, Legalizing Pot

This story from the Wall Street Journal (!) suggests that legalizing marijuana would be a win win situation for both the economy and to reduce violence in Mexico. The story comes in the wake of the killing of Arturo Beltrán Leyva, reputedly one of Mexico's largest cartel leaders. According to the DEA, Leyva was a drug trafficker whose organization helped smuggle several billion dollars worth of cocaine and marijuana into the U.S. during the past decade. Interestingly, former Seattle Police Chief Norm Stamper (and member of Law Enforcement Against Prohibition) said that Leyva's death did not represent an achievement for law enforcement in stopping cartel activity but rather represented a job opening for any number of his lieutenants who will step in.

Growing numbers of Mexican and U.S. officials say—at least privately—that the biggest step in hurting the business operations of Mexican cartels would be simply to legalize their main product: marijuana. Long the world's most popular illegal drug, marijuana accounts for more than half the revenues of Mexican cartels.

"Economically, there is no argument or solution other than legalization, at least of marijuana," said the top Mexican official matter-of-factly. The official said such a move would likely shift marijuana production entirely to places like California, where the drug can be grown more efficiently and closer to consumers. "Mexico's objective should be to make the U.S. self-sufficient in marijuana," he added with a grin.

Full article here.

Ohio Supreme Court Holds Cell Phone is Private-Warrant Required

Ever left your phone somewhere only to find your friends have sent or read your text messages or worse? The Ohio Supreme Court ruled this month that the police need a warrant to search a cellphone. The court rightly recognized that cellphones hold a wealth of personal information and that it is reasonable for people to have a expectation of privacy in their phone. See State of Ohio v. Smith (available here). The New York Times carried an interesting op-ed piece excerpted here. (full article here).

Searches generally require warrants, but courts have carved out limited categories in which they are not needed. One of these is that police officers are allowed, when they arrest people, to search them and the area immediately surrounding them, as well as some kinds of containers in their possession.

When the police arrested Antwaun Smith on drug charges they seized his cellphone and searched it, examining his call records. The police did not have a warrant or the consent of Mr. Smith.

The Ohio Supreme Court ruled this month, by a 4-to-3 vote, that the search violated the Fourth Amendment’s protection against unreasonable search and seizure. Rather than seeing a cellphone as a simple closed container, the majority noted that modern cellphones — especially ones that permit Internet access — are “capable of storing a wealth of digitized information.”

This is information, the court said, for which people reasonably have a high expectation of privacy, and under established Fourth Amendment principles, police officers must get a search warrant before they can look through call logs or examine other data. The court wisely decided that it made no sense to try to distinguish among various kinds of cellphones based on what specific functions they have. All cellphones, the court said, fall under the search warrant requirement.

Important Case on Prosecutor Immunity for Procuring False Testimony

Last month, the Supreme Court heard argument in an interesting and important case that will define the limits of prosecutoral immunity. In Pottawattamie County v. McGhee, the Court heard argument in November regarding this issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial. Gerry Spence was among counsel who represent the Respondents who were wrongfully charged and convicted of killing a police officer. The men spent more than twenty years in prison. The men were convicted based upon the testimony of an informant who was promised leniency for his testimony. Police and prosecutors were apparently aware of the fabricated testimony yet nevertheless hid exculpatory evidence. Once the evidence was discovered twenty years later in a post conviction habeas proceeding, the prosecutor assigned to the case lied to one of the wrongfully convicted men in order to continue the charade of the retrial.

The case presents interesting issues on the pitfalls of using informants and whether there should be some responsibility put on the police and prosecutors who use them.

Criminal Profiling Part One

From Crime and Clues:

Some time ago when my children where young they, like all other children, worried about Monsters. I did the obligatory "under the bed check" and I even had a "magic flashlight which "poofed" monsters. At that time I had been immersed in the study of serial murders and forensic science for several years and dearly wish the magic flashlight existed.

One of the middle children was extremely independent and tended to wander off with her younger brother in pursuit. There were several episodes where I found myself running frantically through my neighborhood in tears searching for the two youngest. I eventually found them playing at a stone bridge near our house. In an attempt to prevent them from wandering off to play at the bridge I told them a monster lived under the bridge. The only thing that could protect them was me. They both remember this story and the youngest still asks if there really was a monster under the bridge. "There could have been." I think to myself. I say "no I just told you that so you would not come down here to play by yourself." I will have to tell him about the real monsters soon.

All mothers and most parents in general know the feeling of panic when your child disappears even briefly. None ever wish to endure this feeling for more than a few minutes. I cannot imagine the torture for parents who have to endure it for months or years. The subject of the next few articles will be criminal profiling. In particular, profiling of serial killers who prey on there victims for sexual or psychological pleasure.

A serial killer is defined as someone who kills and then has a cooling off period followed by one or more subsequent murders. This would include psycho/sexual murderers, hired assassins, many political leaders and so on. For this series of articles we will look at those "lone wolf" killers who seem to be motivated by sexual or psychological gratification.

This instinctive fear that someone has spirited away our child is not new. It is reflected in literature such as Grim's fairy tales and other children's stories which warn of the dangers of wandering to far from home or speaking to strangers. These stories exist in almost every culture and are directed at children and young women as there audience. Stories such as Bluebeard and the Dracula legend also indicate that serial murder may not be purely a modern phenomenon. Both of these stories are based on historical figures who were serial killers.

In past many people were born and lived there whole lives in the same village. Strangers were easily identifiable and probably treated with some caution. In modern times, the rise of large cities affords the individual a certain degree of anonymity. Virtually most of the people you will see in any public place will be strangers. This situation heightens the sense of fear and the possibility that somewhere in that crowd is lurking a killer. The problem is you can't tell by looking at them or even talking to them. The expression "a wolf in sheep's clothing" applies aptly to our modern problem with serial murderers in that they can hide in the crowd undetected until it is too late.

The dangers for children and young women are not as new as some writers believe. Many such as Dr. Elliot Leyton author of Hunting Humans and Men of Blood see serial murder as having increased dramatically over the last century particularly in the United States. Leyton believes that the rise of the modern serial killer is a cultural phenomenon. Others like John Douglas and Mark Olshaker, both founders of the F.B.I. behavioral science unit, believe that it is a phenomenon which has existed for quite a long period but was not recognized as a unique form of criminal behavior(Douglas and Olshaker, 1991).

Throughout time and various cultures mankind has been a hunter. The genetic selection would have been in favor of those men will strong hunting skills and instincts. A man with strong hunting skills is better able to provide for his offspring and they tend to survive in larger numbers than children who are deprived of food. The hunter's genes are passed on to the next generation and so on down through time. Those instincts are still present in modern humans. Some become soldiers or police officers where the hunt is modified by cars and "capture only" rules apply but it is still a hunt. A wolf pack will chase its prey until it is exhausted and then herd it into an inescapable area for the "take down". During a police chase, of any kind, the same thing occurs.

Others join sports which satisfy the hunting instincts. Unfortunately for us the rise of the modern large city has deprived some of us of the ability to satisfy the instinct to hunt. At some point in their lives-usually early- serial killers loose the ability to control the instinct to hunt.

Animals used in experiments which test overcrowding will kill each other and exhibit inappropriate sexual behavior in response to stress (Leyton, 1986). Whether the inability to control this instinct is triggered by cultural factors are physical and mental abuse I am not sure. It could be either in combination with a genetic predisposition for a strong hunting instinct. Since serial killers come from all different backgrounds I suspect it is sometimes one or both which trigger the inability to control the hunting instinct.

In some killers the kill is linked to sexual pleasure and is more likely a product of similar abuse experienced by the killer. Some seem to enjoy the game of "catch me if you can" and the notoriety it brings. Others are truly mentally unable to judge right for wrong. I will discuss the motives for murder a little later in this series.

There are probably hundreds of ways to make a chocolate cake each using standard ingredients in varying amounts. A person can not point to "flour" and say "that is what will result in a chocolate cake if I bake it." The cake is a combination of many ingredients. The amounts of each ingredient used determine the type of chocolate cake. So it is with serial killers. They are not created by one action or factor but by a mix of genetics, cultural encouragement of violence, physical and mental stress factors such as abuse and childhood linking of sexual pleasure with pain, violence or fear.

Full article can be found here.

Civil Liabilities Associated With False Confessions

Training in the field of interrogation teaches investigators not only how to conduct effective interrogations, but also the legal aspects of obtaining admissible confessions. Typically, when an investigator crosses the line and engages in illegal procedures during an interrogation, the consequence may be a suppressed confession. Investigators, however, need to be aware of another possible consequence, which is a substantial monetary award from a civil suit. Consider the following two recent cases:

Fox v. Will County: Fox was interrogated as a suspect in his daughter's murder and confessed. DNA later eliminated Fox as a suspect, therefore proving the confession to be false. During the civil suit, Fox claimed that his request for an attorney was ignored, that the investigator engaged in illegal interrogation tactics, including threats of harm and offering promises of leniency. The investigator denied engaging in these illegal tactics but, since the interrogation was not electronically recorded, there was no evidence to support his testimony. The jury found for the plaintiff and awarded Fox 15.5 million dollars. (The case is currently being appealed.)

Washington v. Virginia State Police: A mentally retarded suspect named Earl Washington confessed to rape and murder, was convicted and sentenced to death. While on death row he was exonerated through DNA and freed from prison. Washington's confession contained a number of crime details only the guilty person should have known. Partially because of this, the plaintiff argued that the interrogation was improperly conducted because the investigator must have provided Washington with these crime details. The jury awarded Washington 2.5 million dollars.

These cases are familiar to us because we testified at both trials - not on behalf of the law enforcement agency, but for the plaintiff who had filed the lawsuit. Furthermore, these are not isolated incidents. We are aware of several other ongoing lawsuits involving a known false confession obtained through alleged improper interrogation techniques. Over the last 20 years we have written about other successful lawsuits alleging illegal interrogation techniques, generally involving violation of a suspect's constitutional rights (interrogating after Miranda rights were invoked, failure to stop an interrogation after the suspect asked for an attorney, etc.)

Civil suits that are focused on the conduct of the investigators have been successful for two basic reasons. First, the plaintiff clearly suffered damages (a verified false confession contributed to a conviction and wrongful incarceration). Second, the investigator utilized interrogation techniques that were clearly illegal or known to increase the risk of a false confession. The illegal interrogation techniques cited are not minor infractions or obscure legal procedures. They address fundamental and well-established legal precedence that have applied to interrogations for many years.

These civil suits should serve as a wake-up call to law enforcement and government agencies to ask the question, "Are our investigators conducting legal interrogations?" The following is an overview of legal guidelines for conducting interrogations. If these basic procedures are not followed, the agency may be at risk for false confessions that could lead to a civil suit.

Suspects at Higher Risk for False Confessions (Additional caution must be exercised when interrogating these suspects)

Juveniles (suspects under the age of 15 especially when they have had little exposure to the criminal justice system)
Low Intelligence (A suspect with an IQ below 65 e.g., a 20-year-old suspect functioning at the level of a 13-year-old)
Mentally Impaired (Thought or perceptual disorders, severe depression or anxiety disorders)

Miranda Rights (The waiver must be knowing and voluntary)

The suspect must be truthfully advised of the issue under investigation
The suspect should not be significantly impaired as a result of alcohol or drugs
For suspects with lower intelligence or suspects who have a language barrier, document the suspect's understanding of each right by asking, "What does that mean to you?"

Coercion (A confession must be obtained in the absence of physical force)

The suspect cannot be subjected to physical pain or discomfort, e.g., slapped, punched, shaken, bright lights, extremely high or low temperatures, etc.

Compulsion (Specifically threatening the suspect with adverse consequences if he does not confess)

Threatening the suspect with physical harm
- Threatening to place the suspect's children in foster care
- Threatening to charge the suspect with a more serious crime
- Threatening to discontinue public aid, deport suspect, etc.

Duress (Potentially creating an unbearable environment where the suspect's only escape is to confess.)

Interrogations lasting longer than four hours if the suspect is still maintaining his innocence.

- Multiple interrogators conducting the interrogation, especially as a tag team.
- Depriving the suspect of sleep, food, medications

Trickery and Deceit (The investigator's use of trickery and deceit cannot shock the conscience of the court or community)

The investigator cannot give the suspect false legal advice, "This is your last chance to tell the truth."
The investigator cannot create evidence against the suspect e.g., type up a fictitious crime lab report indicating the suspect's DNA was found at the crime scene.

Faulty Memory (A coerced-internalized confession occurs when the investigator convinces an innocent person that he must be guilty of committing a crime)

When interrogating a suspect who claims to have memory loss during the period of the crime (intoxication, amnesia, head trauma, etc.) the investigator:

- Should not try to convince the suspect that he committed the crime
- Should not lie to the suspect about having incriminating evidence
- Should make certain the suspect's confession contains valid corroboration

Corroboration

Dependent: Information purposefully withheld from the suspect and the public. This is information only the guilty suspect should know and it is obviously improper to reveal dependent corroboration to a suspect during an interrogation.

Independent: Information not known until the confession that is later verified as true by the investigator. Once this information is learned it needs to be confirmed as true. If it does not check out, there may be a problem with the confession.

Credit and Permission Statement: This Investigator Tip was developed by John E. Reid and Associates Inc. Permission is hereby granted to those who wish to share or copy the article. For additional 'tips' visit www.reid.com; select 'Educational Information' and 'Investigator Tip'. Inquiries regarding Investigator Tips should be directed to Janet Finnerty johnreid@htc.net. For more information regarding Reid seminars and training products, contact John E. Reid and Associates, Inc. at 800-255-5747 or www.reid.com.

Supreme Court to Take Texting Case, LOL

The Supreme Court accepted review on CITY OF ONTARIO V. QUON. The issue involves whether the City of Ontario police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager. A little background is useful...

The City of Ontario had issued two-way pagers to its SWAT team. The officers were told they were responsible for charges in excess of 25,000 characters a month. The City had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.” It did not directly address text messages.

Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected. The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Quon. In one month in 2002, only 57 of more than 450 of those messages were related to official business. Many of the messages were sexually explicit in nature.

Sergeant Quon and some of the people with whom he messaged sued, saying their Fourth Amendment rights had been violated. The United States Court of Appeals for the Ninth Circuit said the department’s formal policy had been overridden by the “operational reality” of the lieutenant’s informal policy. The Ninth Circuit Court of Appeals held that the Fourth Amendment protects the contents of the text messages even if the address (in this case the telephone number) is not protected. See Ninth Circuit Blog for analysis of the Ninth Circuit opinion.

Now, the Supreme Court will decide whether the officers had a reasonable expectation of privacy with the work-issued pager; whether the police department could have found a less intrusive way to review the messages; and whether the individuals who sent the messages to a police-issued pager have a reasonable expectation of privacy that the message would be free from review by the employer. The case has large ramifications for anyone interested in the Fourth Amendment and privacy issues. Many businesses, incjavascript:void(0)luding government employers, issue cell phones, pagers, and computers to their employees so the holding could affect many people. For more coverage of this issue, see the New York Times article and the Scotus Blog.

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National Museum of Crime and Punishment Crime Library

Whether you are researching a project or simply have a fascination with the subject, you will find our growing Crime Library to be a rich resource for you to explore and expand your learning. Check back soon to find even more content that enhances the National Museum of Crime and Punishment's current exhibits.

WACDL HOLIDAY AUCTION A SUCCESS

The Washington Association of Criminal Defense Lawyers held their annual CLE and holiday party tonite to toast another year of civil liberties won and lost and rededicate to our mission for 2010. Auction highlights included the "Tree of Liberty" Holiday Tree with handmade criminal defense themed ornaments generously donated by one WACDL member and later bid on by another member, a prominent Seattle criminal defense attorney. Thanks very much for the generous support for a great criminal defense association and toast the year to come.

Where to find Opinions from the Ninth Circuit Court of Appeals

Opinions appear on this site by 10:00 a.m. PT on the day of release. By default, the “Advanced Search” tool is closed. Once "Advanced Search" is selected, this a powerful tool that can be used to search the entire database of opinions and display them by year, month, case type, case number and case name. You can also use the “Published Within” option to search based on date of publication. Use the "View" option to change the number of opinions displayed per page. Click the cells in the top row of the table to display opinions by case title, case number, case type, case code and date filed.

Supreme Court Takes Bong Hits 4 Jesus

Decomposition of Baby Pigs

The technique of time-lapse photography is employed to illustrate the rapid removal of carrion (4 days reduced to approximately 6 minutes). The film demonstrates the sequence of tissue destruction and the role of insects in the ultimate dismemberment of the pig carcass and soil movement. The pink and purple beads were added to show the intense activities of the insects in moving the carcass and soil.

Payne writes..."My study was the first "detailed" study of succession in animal decomposition and the first with the pig as the model. The significance of the pig is that it closely approximates the human body (skin, body hair, size etc.) so the data generated could be used in modern forensic science to approximate the time of human deaths. At that time it was simply not possibly (moral/ethical/legal concerns) to perform decompositon studies with human corpses, I know because I tried and was denied. Even so there were many instances where some concerned person buried my research pigs."

The pigs used in the experiment were dead when Jerry Payne picked them up from local farmers. Mama pigs (sows) often lay down on their tiny piglets and crush them. This was very common on small farms and led to the invention and deployment of farrowing pens(birthing pens) where the sow is contained and the piglets have a heated space where they are not in danger of being crushed.

Flies have four life stages: adult (the fly), egg, larva (the maggot) and pupa. Maggots crawl into dark, secluded places to pupate (the stage where they undergo the transformation from maggot to adult). Since the maggots are white or cream colored they are easily seen and taken by predators. Going undergroundand away from the carcass offers protection from uv light and predators and allows them seclusion to pupate. This pupal stage is immobile. Maggots don't have to burrow into the soil as they could easily conceal themselves in leaf litter or any decayed organic material.

Shoulder Surfing

With new discoveries come new information! Here is an article from previously mentioned "Crime and Clues" that focuses on the phenomenon of shoulder surfing, or people gathering information from a computer user or cell phone caller by hanging from the eaves. Imagine yourself in a coffee shop using your laptop to check your bank balance. The person at the next table might be "shoulder surfing" to get valuable information including account numbers, log in information etc. Shoulder surfing can be even more invasive and can happen from co-workers, competitors, or even law enforcement or opposing counsel in litigation. An excerpt from the article (full article here)

Due to a job requiring extensive travel or simply due to a lack of office space, many companies can chose to have an individual perform their work while away on a business trip or at home. Connecting to work from an off-site location by way of 'remote access' is fairly common these days. All the employee needs to connect up to his/her home office is a computer with a modem, the proper telephone number or website to access the company's system/network, a user name and a password [5]. To an employee, off-site access may be an extremely convenient tool. However, if information about how to access a company's system/network is in plain view on an employee's computer system, this can be extremely dangerous. To a shoulder surfer glancing by, this information can be very valuable if this particular attacker wanted to gain access to information about that company.

At your place of employment you might even be at risk. Co-workers might be curious as to the activities you engage in on your computer. If their jobs require that they do different tasks then you, they may want to learn how you do your job. They may want to look at the programs you utilize to perform your job. Even worse, they may want to check your e-mail accounts. These are all possible motives of the shoulder surfer who may just be around the corner in the next cubicle.

"Crime and Clues": Cool name, informative site

Just came across "Crime and Clues", a very informative site with information on death investigation, computer forensics, digital evidence, demonstrative evidence, a training calendar, and a YouTube channel. Appears to be a good resource with many informative articles.

Good (sort of) Guantánamo News

Today, the Senate voted to table an amendment proposed by Senator James Inhofe (R-Ok). The Inhofe Amendment would have prohibited the Department of Defense from using funds under the bill to modify or construct any facilities in the United States for the holding of Guantánamo detainees, including those charged, tried or convicted in federal court. The ACLU and a number of partners wrote to the Senate urging the defeat of this amendment because if it passed, it would present additional challenges to Attorney General Eric Holder to prosecute Guantánamo detainees in federal criminal courts rather than the never-land of the military tribunal. Additionally, it would have put front-line law enforcement and corrections officials at needless risk by eliminating the ability to enhance security or communications at facilities holding detainees during their trials.
For more information, click here.

Job Posting of the Week

Fantasy Job of the Week:

UNIVERSITY OF CALIFORNIA, SANTA CRUZ
Grateful Dead Archivist
The University Library of the University of California, Santa Cruz, seeks an enterprising, creative, and service-oriented archivist to join the staff of Special Collections & Archives (SC&A) as Archivist for the Grateful Dead Archive. This is a potential career status position. The Archivist will be part of a dynamic, collegial, and highly motivated department dedicated to building, preserving, promoting, and providing maximum access both physically and virtually to one of the Library's most exciting and unique collections, The Grateful Dead Archive (GDA). The UCSC University Library utilizes innovative approaches to allow the discovery, use, management, and sharing of information in support of research, teaching, and learning.
Under the general direction of the Head of Special Collections and Archives, the GDA Archivist will provide managerial and curatorial oversight of the Grateful Dead Archive, plan for and oversee the physical and digital processing of Archives related material, and promote the GDA to the public and facilitate its use by scholars, fans,and students.

Report Calls Out Flaws In The Public Defender System

The American legal system guarantees "equal justice under law." Those words, carved in stone on the facade of the Supreme Court, are a constitutional promise that everyone will have the same opportunity for justice.

But a new report by the bipartisan Constitution Project says the United States has broken that promise for poor people accused of crimes. The report is the most in-depth study of indigent defense in decades.

Listen to the story here.

Eyewitness Evidence: Improving Its Probative Value

From Psychological Science in the Public Interest:

The criminal justice system relies heavily on eyewitnesses to determine the facts surrounding criminal events. Eyewitnesses may identify culprits, recall conversations, or remember other details. An eyewitness who has no motive to lie is a powerful form of evidence for jurors, especially if the eyewitness appears to be highly confident about his or her recollection. In the absence of definitive proof to the contrary, the eyewitness’s account is generally accepted by police, prosecutors, judges, and juries.

However, the faith the legal system places in eyewitnesses has been shaken recently by the advent of forensic DNA testing. Given the right set of circumstances, forensic DNA testing can prove that a person who was convicted of a crime is, in fact, innocent. Analyses of DNA exoneration cases since 1992 reveal that mistaken eyewitness identification was involved in the vast majority of these convictions, accounting for more convictions of innocent people than all other factors combined. We review the latest figures on these DNA exonerations and explain why these cases can only be a small fraction of the mistaken identifications that are occurring.

Decades before the advent of forensic DNA testing, psychologists were questioning the validity of eyewitness reports. Hugo Mu¨nsterberg’s writings in the early part of the 20th century made a strong case for the involvement of psychological science in helping the legal system understand the vagaries of eyewitness testimony. But it was not until the mid- to late 1970s that psychologists began to conduct programmatic experiments aimed at understanding the extent of error and the variables that govern error when eyewitnesses give accounts of crimes they have witnessed. Many of the experiments conducted in the late 1970s and throughout the 1980s resulted in articles by psychologists that contained strong warnings to the legal system that eyewitness evidence was being overvalued by the justice system in the sense that its impact on triers of fact (e.g., juries) exceeded its probative (legal-proof) value. Another message of the research was that the validity of eyewitness reports depends a great deal on the procedures that are used to obtain those reports and that the legal system was not using the best procedures.

Full paper by Gary L. Wells, Amina Memon, and Steven D. Penrod can be found here.

A Sonic Silver Bullet for Fighting Crime

Gunshot monitoring technology scores big with local police.

From CNN.com:

Police surveillance cameras can make civil libertarians queasy. But what if cops could listen for dangerous crime instead of watching?

Enter ShotSpotter, a Mountain View, Calif., company that has installed microphones on telephone poles in 45 cities and counties across the U.S. with few complaints from local citizens.

ShotSpotter monitors only one thing: gunshots. Its microphones can detect a gunshot from a mile or more away. The system determines the exact location of each shot using triangulation and wirelessly transmits a recording of the sound to police dispatchers. Today ShotSpotter monitors about 125 square miles with 900,000 inhabitants and charges $25,000 per square mile of coverage. The company is expanding, with 50 employees and counting.

The system was installed in San Francisco late last year as part of a crime-fighting initiative. Since the beginning of the year, the city's homicide rate has dropped 50%.

According to the San Francisco Police Department, the microphones have already had a deterrent effect. "There's an understanding within the criminal element of the technology, and I think that's causing incidents to decrease," says Lt. Mikail Ali, who oversees monitoring of the two-square-mile area covered.

CEO James Beldock, 34, who took over the company from scientist founder Robert Showen in 2004, was struggling with anemic growth until he acquired a small wireless company in 2005. That let ShotSpotter lose the cumbersome telephone wiring required by earlier versions of the technology.

ShotSpotter's clients include the U.S. Army, which has been testing the system in Iraq. As a result, the Commerce Department classified the microphones as military munitions, which meant that they couldn't be exported. But Beldock fought back, spending roughly $500,000 on lawyers and consultants. "Night-vision goggles went through the same thing 15 years ago," he shrugs.

It paid off: ShotSpotter won the right to pitch its product to police chiefs around the world. Its first target: Brazil, another country with a history of major gun violence.

Full article here.

Court Deputy Lifts Papers From Defense Attorney’s File

Talk about egregious abuses. A Maricopa County, AZ court deputy blithely wanders over to the defense attorney’s table and takes documents from her files - on camera.

This is pretty egregious. The guy is throwing out a lot of excuses, but it’s hard to imagine any justification for this (the bizarre stuff starts about 1:30 in):



From The Victorious Opposition:

Cuccia was justifiably upset, and requested a hearing. That hearing was last week. According to freelance journalist Nick Martin, who writes at the Heat City blog, Stoddard’s story changed several times over the course of the hearing. His main defense was apparently that he spotted “keywords” on the document that made him think it contained threats to the courtroom. The problem with that story is that if you watch the video, he swiped the document from the middle of the file. It wasn’t lying in open view. Which leaves open the question of why, in open court, he went snooping through a defense attorney’s file in the first place.

...

It gets weirder. According to Heat City, the purpose of Friday’s hearing was to determine if Stoddard had violated the attorney-client privilege of Cuccia’s client, Antonio Lozano, and/or if Stoddard should be held in contempt of court. But Judge Gary Donahoe ruled that because the swiped document itself is protected by attorney-client privilege Stoddard wouldn’t be able to mount his “keyword” defense, because the contents of the document can’t be divulged. According to Heat City, Donahoe said Lozano would have to wave attorney-client privilege if he wanted to proceed with the hearing on whether Stoddard violated his rights.

If this is an accurate portrayal of the hearing, stand back and admire the absurdity: Judge Donahoe is refusing to punish Stoddard for possibly violating Lozano’s attorney-client privilege unless Lozano waives his attorney-client privilege.

“I think you can be a law-and-order leader and still understand that the criminal justice system as we understand it today is broken.”

From The Atlantic: After squeaking into his seat in 2006, Webb became an activist for prison reform—an issue almost universally unpopular among voters, especially in a tough-on-crime state like Virginia. He introduced a bill in March that would establish a commission to review the nation’s prison system. A small step, certainly. But he’s taking on public apathy and a thriving privatized-prison industry that houses nearly 10 percent of federal and state prisoners and lobbies politicians with vigor. Webb has called our prison system a “national disgrace,” and he’s right: the U.S. incarcerates 2.3 million people (25 percent of the planet’s prisoners), and monitors another 5 million on probation or parole (more than 60 percent of whom will end up back in the clink). Huge numbers of inmates are mentally ill and more than 20 percent have been sexually abused while locked up; meanwhile the number of drug offenders behind bars (where they take up scarce space and resources) has increased by 1,200 percent since 1980. By tackling prison reform as a freshman senator, Webb has shown he possesses two things vanishingly rare in Congress: a conscience and a spine.

Jim Webb: He’s Taking on the Nation’s Neglected Prison System.

New Report from Sentencing Commission

The United States Sentencing Commission released a report, available here, that provides a history of the child pornography guidelines. The Sentencing Commission report is the first step in the Commission's ongoing examination of the child pornography guidelines. The report gives an overview of the child pornography guidelines over the last twenty-two years including the nine revisions to the Guidelines prompted by Congressional action. The report also notes that the Commission is engaging in a study because:

Sentencing courts have also expressed comment on the perceived severity of the child pornography guidelines through increased below-guidelines variance and downward departure rates. Consistent with the Commission’s duties to review and revise the guidelines, and the Supreme Court’s direction, the Commission has established a review of the child pornography guidelines as a priority for the amendment cycle ending May 1, 2010. This report is the first step in the Commission’s work on this priority.

Find yourself wondering where to get started in a CP case? Here is a good overview for starters. Most CP cases require trained forensic analysis because with these cases, the devil is in the details.

Email Not Private According to District of Oregon Federal Judge

Excerpt from Wall Street Journal Legal Blog
By Ashby Jones
Here’s a question: Is it kosher for a law enforcement agency to, pursuant to a lawfully granted search warrant, search your Gmail account without telling you?

According to an opinion handed down earlier this year and currently making the rounds on legal blogs (here and here), the answer is yes.

The opinion, handed down by Portland, Ore., federal judge Michael Mosman, doesn’t really delve into the case’s facts. It cuts right to the legal issue: whether the government must notify the subscriber to an email service before the government undertakes a search.

We’re going to excerpt a bit of the opinion here, mostly because it’s, perhaps uncharacteristically for a judicial opinion, engaging and very clearly written. (Bravo, Judge Mosman!). He reasons:

The Fourth Amendment protects our homes from unreasonable searches and seizures, requiring that, absent special circumstances, the government obtain a search warrant based on probable cause before entering. . . . This is strong privacy protection for homes and the items within them in the physical world.

When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, “private” information is actually being held by third-party private companies.

. . .

It is clear that notice is an essential part of the reasonableness calculus in judging searches and seizures under the Fourth Amendment. The Federal Public Defender has argued that this constitutional notice requirement supports [the view] that the copy of the warrant and receipt . . . must be provided to the subscriber to the e-mail account, rather than just to the ISP. The notice must be provided to the subscriber because the ISP “has a far lesser privacy interest in the content of its subscriber’s e-mails than the subscribers themselves.”

This argument fails to take into account the third party context in this case. If a suspect leaves private documents at his mother’s house and the police obtain a warrant to search his mother’s house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the “owner” of the documents. (citations omitted). In such a case, it is irrelevant that the suspect had a greater privacy interest in the content of the documents than did his mother. When he left the documents in her possession he no longer has a reasonable expectation of privacy in their contents.

Finally, Judge Mosman concludes with a flourish:

Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

2006 Attorney General Guidelines regarding Informants

The Attorney General Guidelines Regarding the Use of FBI Confidential Human Sources, U.S. Dep’t of Justice (2006) are available here. Always a good read when preparing for cases involving confidential witnesses.

Office Douche Bag

Something funny for Friday

52 Children Recovered, 60 Alleged Child Pimps Arrested in Crackdown

From CNN -

Law enforcement authorities have recovered 52 children and arrested 60 pimps allegedly involved in child prostitution, the FBI announced Monday.

More than 690 people in all were arrested on state and local charges, the FBI stated.

The arrests were made over the past three days as part of a nationwide law enforcement initiative conducted on the federal, state and local levels, the bureau said.

"Child prostitution continues to be a significant problem in our country, as evidenced by the number of children rescued through the continued efforts of our crimes against children task forces," Kevin Perkins, assistant director of the FBI's Criminal Investigative Division, said in a written statement.

"There is no work more important than protecting America's children and freeing them from the cycle of victimization."

The three-day operation, tagged Operation Cross Country IV, included enforcement actions in 36 cities across 30 FBI divisions nationwide. It is part of the FBI's ongoing Innocence Lost National Initiative, which was created in 2003 with the goal of ending sex trafficking of children in the United States.

The initiative, conducted with assistance from the National Center for Missing and Exploited Children, has so far resulted in the recovery of almost 900 children, according to the FBI. It has also led to more than 500 convictions.

Full story here.

Citizens Arrest?

How Pressure for Police Oversight is Mounting at City Hall

From the Center for Justice:

It is now thirty years since Mary Ann Tripp began organizing the first citizen group in Spokane to address the problem of police brutality. Initially, her interest was personal. In 1979, her son had been beaten by officers who'd run him down on foot after he made the youthful mistake of fleeing the scene of a vehicle accident in which he was a passenger. But as Mary Ann collected and filed one story of police abuse after another, the depth of the problem became much clearer to her and others. It wasn't just that the SPD had nurtured a culture where police brutality was tolerated. A culture of avoidance and denial infected City Hall as well.

The Center for Justice is among the local organizations who now walk in Mary Ann's footsteps to try to enact the reforms necessary for Spokane to begin--as CFJ's Chief Catalyst Breean Beggs puts it--"healing the relationship between our community and its police department." Increasingly, it looks as though 2010 will be a pivotal year in this long-running drama. In June, a federal grand jury indicted Spokane police officer Karl Thompson, Jr. in connection with the March 2006 death of Otto Zehm, a mentally disabled janitor who'd been violently subdued by Thompson and other officers in a north Spokane convenience store. But the dimensions of the Zehm story got much broader a few weeks ago when the federal prosecutors filed a motion in federal court. The Justice Department not only complained about the city undermining the government's investigation, but alerted the court that there was an ongoing federal criminal probe into whether others, besides Thompson, had obstructed justice in the case. (Here, we should note, the Center for Justice has separately filed a federal civil rights lawsuit on behalf of Otto Zehm's estate against the City of Spokane, Thompson, and several other police officers.) Among other things, the government's September 15th filing exposed a serious rift between Assistant U.S. Attorney Tim Durkin and Spokane Assistant City Attorney Rocky Treppiedi who, for years, has been both praised and criticized for his zealous defense of Spokane police officers.

You can read about the government's unusual September 15th court filing here, and read subsequent stories about the controversy and developing criminal case here and here. You can also download the Justice Department's most recent timeline of the key events in the Otto Zehm case here.

Of Insider-Trading, Informants, and Wiretaps

From The Snitching Blog:

"Wall Street Meets the 'Wire,'" is a post from earlier this week on White Collar Crime Prof Blog, discussing the criminal case against billionaire hedge-fund manager Raj Rajaratnam for insider-trading. Here's a link to the news story on Bloomberg. The post focuses on the unusually aggressive use of wiretaps in the investigation, and asks whether the government was authorized under the federal wiretap statute to do so given the availability of cooperating informants. As the post explains:

Title 18 U.S.C. § 2518(3)(c) provides that a court issuing a wiretap authorization order must determine whether normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. This "necessity requirement" obligates the government to set forth a full and complete statement of specific circumstances explaining why traditional investigative techniques were insufficient or the application must be denied. In determining the sufficiency of an affidavit, a reviewing court must ensure that the issuing court properly performed [its] function and did not 'serve merely as a rubber stamp for the police'. The government is not under an obligation to exhaust all alternative means of investigation in satisfying the necessity requirement but, neither should it be able to ignore avenues of investigation that appear both fruitful
and cost-effective.

Given that the government had three co-conspirators, including one as early as January 2006, acting as informants and cooperating witnesses, and that these individuals had unfettered access to Rajaratnam and others involved in the alleged conspiracies, the question arises whether the government deliberately stalled this investigation and actively resisted utilizing normal investigative techniques, hoping to induce the court into believing that only a wiretap could succeed.

The post doesn't mention it, but the government need not even get court permission for electronic surveillance if it has so-called "third party consent," i.e. if the informant agrees to record the conversation. 18 U.S.C. § 2511(2)(c).

This story illustrates the intimate legal relationship between informants and other forms of surveillance. The law privileges informant use, forcing the government to justify its use of wiretaps if informants are available--note that the post refers to snitching as a "normal investigative technique." Moreover, the law permits the government to circumvent the courts entirely and avoid asking for permission to record conversations if it can find an informant who will agree to the surveillance. The usual explanation for this hierarchy is that electronic surveillance is one of the most intrusive forms of investigation and therefore should be a means of last resort. Wiretapping is of course supremely invasive, but this fact obscures the fact that informant use can be similarly intrusive, i.e. when the government threatens friends and colleagues with criminal charges to get them to report on and record people they know. For those who are interested, Chapter Two of the book discusses informant law in detail.


The insider-trading story also hints at important differences between white collar and street/drug crime investigative tactics involving snitching. The culture of informant use is very different in these two realms: white collar informants tend to be (although not always) well controlled, represented by counsel, and provide information about past crimes, whereas drug informants tend to be poorly controlled, unrepresented, and permitted to engage in new criminal activity in order to generate evidence. At the same time, the two arenas share important features. Here's an excerpt from Chapter Seven:

White collar informing shares important characteristics with its street counterpart. Both confer a vast amount of discretionary, unreviewable authority on law enforcement. Both exacerbate power inequalities among potential offenders, as well as between vulnerable offenders and the government. In both arenas, the decision to permit cooperation means that the government is tolerating and forgiving crime, and sometimes even creating an atmosphere in which crime may flourish. And both deprive courts, and thus the public, of significant amounts of power over and information about the operations of the executive.

As informant use becomes increasingly prevalent in white collar investigations, we should expect to see more of the problems of unreliability and continued criminality that have become familiar in the street crime arena.

Original blog post here.

U.S. Attorneys Told to Go After Pot Traffickers, not Patients

From CNN.com

The Justice Department has provided federal prosecutors "clarification and guidance" urging them to go after drug traffickers, but not patients and caregivers, in the 14 states that have medical marijuana laws.

A memo sent to U.S. attorneys said that in carrying out Justice pronouncements made earlier this year indicating a policy shift to end prosecutions against users, authorities should continue to pursue drug traffickers.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana," said Attorney General Eric Holder. "But we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder added.

The memo from Deputy Attorney General David Ogden was sent to U.S. attorneys in Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Maryland, Oregon, Rhode Island, Vermont and Washington.

The issue is particularly significant in California, where there has been uncertainty about the government's approach to raiding marijuana dispensaries, which are increasing and thriving.

At the White House, spokesman Robert Gibbs said, "I'm not going to get into what states should do. The memo that was sent out today to U.S. attorneys simply adds guidelines to a decision that Attorney General Holder talked about in mid-March and has been administration policy since the beginning of this administration in January."

That policy marks a shift from the Bush administration's position, backed by the Supreme Court, that federal agents have a right to pursue marijuana dispensaries and customers any time federal drug law alone has been violated.

The National Organization for the Reform of Marijuana Laws, which advocates legalization of marijuana, declared the government's memo Monday a "major departure in the so-called war on drugs" and "a major victory for citizens who support cannabis law reform."

Drug Enforcement Administration officials disputed that assertion.

"We remain committed to pursuing large-scale criminal drug trafficking organizations," said one DEA official. "If you look at who we've gone after, you'll find they're clearly breaking California law. The threshold is state and local law."

Full story here.

How not to Get Your Ass Kicked by the Police

Attorney General Eric Holder Announces New Medical Marijuana Policy

In what is being recognized as a shift towards a more sensible U.S. drug policy, Attorney General Eric Holder announced a new policy for medical marijuana. Under the policy spelled out in a three-page legal memo, federal prosecutors are being told to prioritize their prosecutions to focus on issues including violent crime and large scale drug traffickers. The Attorney General stated:

It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal.

"This is a major step forward," said Bruce Mirken, communications director for the Marijuana Policy Project. "This change in policy moves the federal government dramatically toward respecting scientific and practical reality."

Neighborhood Watch

FOIA and the Veterans Administration

The Department of Veterans Affairs is organized into three large Administrations (the Veterans Health Administration, the Veterans Benefits Administration, and the National Cemetery Administration) and a number of management offices. Additionally, each Administration has a large number of subordinate field activities. Within VA, each Administration, management office and field activity processes its own records.

Because, over time, individual employees of the Department of Veterans Affairs may change job positions, it is not recommended that you address your request to a specific person. Rather, you should include the notation "Freedom of Information Act Request" on the front of your request envelope and also at the beginning of your request letter. In this way you will be sure that the responsible individual receives your request without delay.

If you know the office that maintains the records you are seeking, you should write directly to that office or contact the VA Central Office FOIA/Privacy Act Officer for the custodian of the record. If you do not know, submit the request as follows:

• For medical records, to the Director of the VA medical facility where the individual was last treated or to the FOIA Officer at Veterans Health Administration, VA Central Office.

• For National Cemetery records, to the Director, National Cemetery Area Office, or to the FOIA/Privacy Act Officer, National Cemetery Administration, VA Central Office.

• For other benefits records, to the FOIA/Privacy Act Officer at the VA Regional Office serving the individual's jurisdiction, or to the FOIA/Privacy Act Officer of the
Veterans Benefits Administration, VA Central Office. The VA Toll-Free number (1-800-827-1000) will connect you to the nearest regional office.

• For all Inspector General records, to the Office of the Inspector General, VA Central Office.

• For all other records, to the VA FOIA/Privacy Act Officer, VA Central Office.

The address for the VA FOIA/ Privacy Act Officer is:

Department of Veterans Affairs Director
Records Management Service (005R1B)
810 Vermont Avenue
NW Washington, DC 20420

More information can be found here.

Cricket Cell Phone Subpoena Compliance

Custodian of Records
Attention: Subpoena Compliance
Cricket Communications/Leap Wireless
10307 Pacific Center Court
San Diego, California 92121
Fax: (858) 882-9237
Voice (858) 882-9301

Submission options: Pen register/trap & trace or Wiretap, email or scan to: Intercept@cricketcommunications.com

Other process: email or scan to: Compliance@cricketcommunications.com. If no email, request may be faxed to: (858) 882-9237. Response time approx 2-3 weeks. A fee may be assessed for production of requested information.

MySpace Subpoena Information

Rosita Martinez, Custodian of Records
Compliance@myspace-inc.com
407 N. Maple Drive
Beverly Hills, California 90210
888-309-1314

In order to get the profile's info you'll need a FRIEND ID # or a SPECIFIC URL. Locating either of these will be simple if the account is still active. Visit MYSPACE, locate the correct account, click on the link, and the URL containing the friend ID # will be in web address bar. Eg. http://profile.myspace.com/index.cfm?fuseaction=user.viewprofile&friendid=6221, the friend ID # is 6221.

Fingerprinting Basics

From How Stuff Works: some history of fingerprinting and how scanners work.

The other function of fingerprints is a total coincidence. Like everything in the human body, these ridges form through a combination of genetic and environmental factors. The genetic code in DNA gives general orders on the way skin should form in a developing fetus, but the specific way it forms is a result of random events. The exact position of the fetus in the womb at a particular moment and the exact composition and density of surrounding amniotic fluid decides how every individual ridge will form.

So, in addition to the countless things that go into deciding your genetic make-up in the first place, there are innumerable environmental factors influencing the formation of the fingers. Just like the weather conditions that form clouds or the coastline of a beach, the entire development process is so chaotic that, in the entire course of human history, there is virtually no chance of the same exact pattern forming twice.

Consequently, fingerprints are a unique marker for a person, even an identical twin. And while two prints may look basically the same at a glance, a trained investigator or an advanced piece of software can pick out clear, defined differences.

This is the basic idea of fingerprint analysis, in both crime investigation and security. A fingerprint scanner's job is to take the place of a human analyst by collecting a print sample and comparing it to other samples on record. In the next few sections, we'll find out how scanners do this.

Supreme Court Watch: Oral Argument heard last week in Immigration misadvice case

For those of you out there handling cases in which people might get deported or illegal reentry cases, keep your eyes on Padilla v. Commonwealth of Kentucky. The United States Supreme Court heard oral argument last week on this important case that has the potential to have significant ramifications. The issue presented is whether the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea? If the Court were to decide that affirmative misadvice by an attorney regarding immigration consequences would entitled a person to challenge a prior conviction, that will raise significant issues for many people who pled guilty only to find themselves deported by surprise. For full briefing and links to oral argument, check Scotuswiki.

Of course, ideally the criminal defense attorneys out there dealing with cases with immigration consequences are careful not to misadvice to begin with. Good investigation plays a role in this as well by obtaining the proper records and being advised of a client's immigration status as early as possible in the case. Depending on the ruling, there could be a few habeas corpus petitions coming to a courtroom near you.

How the Internet Works

Dealing with computer crimes including the transfer of contraband files or dealing with interstate communications? Looking at how a particular email or file was transferred in cyberspace? Here is a handy little article on "How the Internet Infrastructure Works". It includes explanation on routers, servers, internet protocol, email, uniform Resource Locators (URL) and more.

Military Record Requests: Standard Form SF-180

Military personnel records can be used for proving military service, or as a valuable tool in genealogical research. Most veterans and their next-of-kin can obtain free copies of their DD Form 214 (Report of Separation) and other military and medical records.

Standard Form SF-180 can be found here.

American Violet Trailer

Check out this trailer for American Violet. The film is based on the real-life incident in Hearne, Texas where a large segment of the African-American population was busted on false drug charges in a massive operation. One young single mother, with the help of the ACLU, brought the house of cards down. The film is now available on DVD, I-Tunes, and Blu-Ray.

FBI Delves Into DMV Photos in Search for Fugitives

(AP) - In its search for fugitives, the FBI has begun using facial-recognition technology on millions of motorists, comparing driver's license photos with pictures of convicts in a high-tech analysis of chin widths and nose sizes.

The project in North Carolina has already helped nab at least one suspect. Agents are eager to look for more criminals and possibly to expand the effort nationwide. But privacy advocates worry that the method allows authorities to track people who have done nothing wrong.

"Everybody's participating, essentially, in a virtual lineup by getting a driver's license," said Christopher Calabrese, an attorney who focuses on privacy issues at the American Civil Liberties Union.

Earlier this year, investigators learned that a double-homicide suspect named Rodolfo Corrales had moved to North Carolina. The FBI took a 1991 booking photo from California and compared it with 30 million photos stored by the motor vehicle agency in Raleigh.

In seconds, the search returned dozens of drivers who resembled Corrales, and an FBI analyst reviewed a gallery of images before zeroing in on a man who called himself Jose Solis.

A week later, after corroborating Corrales' identity, agents arrested him in High Point, southwest of Greensboro, where they believe he had built a new life under the assumed name. Corrales is scheduled for a preliminary hearing in Los Angeles later this month.

"Running facial recognition is not very labor-intensive at all," analyst Michael Garcia said. "If I can probe a hundred fugitives and get one or two, that's a home run."

Facial-recognition software is not entirely new, but the North Carolina project is the first major step for the FBI as it considers expanding use of the technology to find fugitives nationwide.

So-called biometric information that is unique to each person also includes fingerprints and DNA. More distant possibilities include iris patterns in the eye, voices, scent and even a person's gait.

FBI officials have organized a panel of authorities to study how best to increase use of the software. It will take at least a year to establish standards for license photos, and there's no timetable to roll out the program nationally.

Full article here.

FBI Investigated Coder for Public Publishing

From WIRED (full article here)

When 22-year-old programmer Aaron Swartz decided last fall to help an open-government activist amass a public and free copy of millions of federal court records, he did not expect he’d end up with an FBI agent trying to stake out his house.

But that’s what happened, as Swartz found out this week when he got his FBI file through a Freedom of Information Act request. A partially-redacted FBI report shows the feds mounted a serious investigation of Swartz for helping put public documents onto the public web .

The FBI ran Swartz through a full range of government databases starting in February, and drove by his home, after the U.S. court system told the feds he’d pilfered approximately 18 million pages of documents worth $1.5 million dollars. That’s how much the public records would have cost through the federal judiciary’s pay-walled PACER record system, which charges eight cents a page for most legal filings.

ACCA Cases: Watch for Supreme Court Action

From Sentencing Law and Policy

Johnson v. US is yet another Supreme Court case requiring the Justices to try to make sense of which prior state crimes suffice to trigger the 15-year mandatory minimum sentencing terms of the Armed Career Criminal Act (ACCA). Though not an easy read, the Johnson transcript reveals Justice Scalia making a significant and sustained effort to provide a pro-defendant reading of the statute. In notable contrast, Justice Breyer seems to be comfortable with a broader reading of the ACCA statute, though it is not entirely clear how he will vote in the case (especially since last term Justice Breyer thoughtfully suggested that the rule of lenity should apply with special force in cases involving mandatory minimum sentencing provisions).

Remember to get sentencing documents and records to support challenges to prior convictions on potential ACCA cases.

US Has Highest Incarceration Rate

Look a little crowded? According to a report from the Kings College in London now its latest, greatest "World Prison Population List. Check this:

More than 9.8 million people are held in penal institutions throughout the world, mostly as pre-trial detainees (remand prisoners) or as sentenced prisoners.
Almost half of these are in the United States (2.29m), Russia (0.89m) or China (1.57m sentenced prisoners). The United States has the highest prison population rate in the world, 756 per 100,000 of the national population, followed by Russia (629), Rwanda (604), St Kitts & Nevis (588), Cuba (c.531), U.S. Virgin Is. (512), British Virgin Is. (488), Palau (478), Belarus (468), Belize (455), Bahamas (422), Georgia (415), American Samoa (410), Grenada (408) and Anguilla (401).

More info at Sentencing Law and Policy and Grits for Breakfast.

Obey

For more Shepard Fairey images, click here.

Fingerprint Bias Affects Reliability

Often times when a fingerprint examiner is examining whether there is a match in fingerprints, the examiner is aware that the fingerprint is of the "suspect" and is looking to confirm what is already believed by other law enforcement investigators. Cognitive neuroscientist Itiel Dror found that analysis of fingerprint data by human examiners can be ruined by unintentional bias. Dror put together a study to test whether a cognitive bias would affect the reliability of the fingerprint examiner's results:

And so, five international experts were put to the test covertly, re-examining matched prints from their own old cases while armed with different — and potentially biasing — "case information." They'd agreed to be tested, but they didn't know when — or even if — test prints would cross their desks.
That night in Brighton, the results were in. For Charlton, they were a jaw-dropper.
"Not only some, but most, of the fingerprint examiners changed their minds," said Dror, who was far less surprised by the flip-flopping. As an expert in human thought processes and the hidden power of cognitive bias — an array of distortions in the way humans perceive reality — he had a decided advantage.
Fingerprints have been accepted as unassailable evidence in courts for more than 100 years, but vaunted claims of their uniqueness and infallibility still lack scientific validation. By contrast, the existence of cognitive bias and the subjective nature of human judgment have been thoroughly established by hundreds of scientific studies going back decades.
Dror knew the ways in which unconscious bias could impact expert decision-making, yet allowances were rarely made for it in the work of fingerprint or other forensic examiners. Then, in February, a landmark National Academy of Sciences report on forensic science called for massive reform. The report, which cited Dror's studies, sent a strong message about the need for research into the effects of cognitive bias and finding ways to minimize it.

The article describing the study and its aftermath, here, is worth a look if you have a fingerprint case where you are looking to challenge either the finding or the fingerprint's use in court.

EDD in Criminal Cases

From the Association of Litigation Support Professionals

We’re all aware of the enormous attention paid to e-discovery in civil cases, especially since the changes to the FRCP. But what about criminal cases? White collar criminal prosecutions have become more common in the post-Enron world as the Government has sharpened it’s focus on corporate crimes and focused on activities such as securities fraud, bank fraud, wire fraud, racketeering, and money laundering.

And prosecution of these cases can closely resemble the characteristics of a complex civil case. Discovery can include millions of pages of ESI from standard sources such as computers and PDA’s but may also involve hundreds of hours of wiretaps, body wires and surveillance videos. At the end of one such complex criminal case in which I was involved, the cost of transcribing recordings of wiretaps and body wires actually exceeded the fees for the appointed defense counsel!

But criminal cases do not have the constitutional right to discovery of evidence which mandate procedure in civil trials. The Brady rule (Brady v. Maryland, 373 U.S. 83 (1963),) requires that exculpatory evidence be provided to the defense and the Jencks Act requires production of verbatim transcripts and other notes or documents related to testimony by government agents, employees or witnesses. But the request for production must be made by the defendant and is required only AFTER the witnesses have testified and are not generally available in pre-trial hearings.

So what constitutes Brady material is often the source of prolonged pre-trial motion practice and although many federal administrative agencies have incorporated Jencks standards into their procedures, local rules in the various federal courts may vary as to the application of Jencks.

The result is that document exchange between the parties in criminal cases is not the result of the negotiation that exists in civil cases. No litigation hold letters, no meet and confer, no motions over delivery format. A warrant is served without notice, an agency seizes computers and when they are done processing the ESI the agency provides defense counsel a copy of what they seized in a fixed format, typically EnCase or FTK.

So what does this mean for the defense attorneys in these cases? To get some real world perspective I called Russ Aoki, a Seattle attorney specializing in white collar criminal cases who is often appointed liaison counsel for appointed defense teams in complex criminal cases. I have worked for Russ on several such cases, including the government prosecutions of both the Banditos and Hells Angels motorcycle clubs, and knew he would have a good perspective on this issue.

Russ told me he was introduced to complex criminal cases in 2003 when he was appointed counsel for Kevin Lawrence, the CEO of health care company Znetix, who had been indicted on a $92 million securities fraud claim and was indigent following a series of civil cases and asset forfeitures.

More on the Znetix case in a minute, but first I asked Russ what differences he sees between civil and criminal cases when it comes to e-Discovery. He agrees with my points about lack of negotiation and fixed formats and added a few more of his own:

Criminal cases are “on the clock”, with issues of speedy trial and defendants who are often in custody and want to get to trial as soon as possible

Attorneys are not always as tech savvy as their civil counterparts

Document review is difficult with in custody defendants who have restricted or no access to computers

Collaboration with co-counsel is difficult given a system that rewards defendants who cooperate with the government

Technology purchases are difficult because the judge must approve all expenditures (more than 80 percent of criminal defendants in Federal court appear with court appointed counsel because they are indigent)

Russ summed it up this way, “Unlike a complex civil case, criminal defense lawyers tend to be solo practitioners or from small law firms. The majority of criminal defense attorneys have few staff, if any and they must balance numerous cases that require far more frequent court appearances then in the civil justice system. To further increase the pressures on them, an immediate trial is mandated by the constitutional right to a speedy trial. A client who is unwilling to waive his right to a speedy trial requires the criminal defense attorney to use tools to review and organize discovery in a quick and effective manner.”

Those tools must, of necessity then, be technological. Going back to the Znetix case, Russ recalled that “Within a few days we learned that there were 1.5 to 2 million pages of potentially relevant documents spread out in several cities along the west coast. The documents were mostly business records, some of which pertained to the issuance of securities that were the basis of the prosecution”.

He went on to say, “There was no doubt we needed to database the discovery. We calculated that the average document in this case was likely to be 3.5 pages in length. A person could read 10 documents an hour, including writing down a few notes. Even assuming a person could work at that pace for 8 hours a day, 7 days a week, it would take that one person 14.7 years to read 1.5 million pages of documents. With a team of two lawyers and a paralegal, we could easily trim that time down to…oh, let’s see…just under 5 years.” The solution was technology but being court-appointed meant he needed court approval. Luckily the judge, the Honorable Marsha J. Pechman of U.S. District Court for the Western District of Washington, was interested in technology and after a demonstration of the CaseShare database Russ wanted to use, approved its use.

Russ noted that “The use of a Web-based document repository was a critical tool that allowed a defense team of only three to rapidly digest 1.5 million pages of documents. Without it, we would have been lost.”

Where is all this headed in the future? Well in my opinion towards more incorporation of the FRCP provisions regarding e-Discovery by criminal case judges. At least one judge has done so already, as Judge Fasciola applied these civil rules to a federal criminal case in United States v. O’Keefe, 537 F. Supp. 2d 14, (D.D.C. 2008).

And one state court system has ruled that the fixed format delivery system by prosecutors violates the States obligation to provide the defense “meaningful access” to copies of a hard drive. In State v Dingman, No. 34719-9-II consolidated with No. 35949-9-II, 2009 Wash. App. LEXIS 550 (Wash. App. Mar. 10, 2009), an appeals court in Washington counseled “against unduly restricting access to electronic evidence in criminal matters” and issued an order to “strike down the trial court's order requiring the defense to access the mirror image drives ‘only through the State's operating system and software.’”

The court reversed and remanded for a new trial, concluding that the trial court erred by requiring that the State provide only an EnCase mirror image of defendant’s hard drives to the defense because “the State must meet its burden of showing a need for appropriate restrictions before the trial court [could] limit a computer forensics expert's analysis of a defendant's hard drive to only the State's chosen software format.”

The key is, I believe, to be well versed in the FRCP provisions regarding e-Discovery and make strategic decisions on how to apply that knowledge to the specifics of your criminal case. Your needs will be much more limited than in a civil matter and may revolve around only one or two specific items within the EDRM workflow. The key is knowing what you want to do with technology to handle those specifics.

With that in mind, Russ suggested one other tip for handling a criminal defense matter: “When I am appointed by the Court to be the Coordinating Attorney on complex racketeering and fraud cases, my role is to coordinate the use of technology to support the defense teams and look for cost sharing opportunities. I start each case by asking: “What do you want to do with the technology?”

That simple premise has served us well in many cases.

- Tom O'Connor

Full article here.

While We're On the Topic of the Spokane Police

More Spokane police officers could face criminal charges over the city’s handling of the fatal confrontation with unarmed janitor Otto Zehm, with newly filed court documents indicating a federal probe is continuing into potential obstructions of justice.

The new documents filed by Assistant U.S. Attorney Tim Durkin contain new details about the confrontation that suggest police and city officials have misled the public and others about what happened the night of March 18, 2006, when Zehm was beaten with a police baton, shocked with a Taser, and hogtied by a half-dozen officers before lapsing into a coma and dying two days later.

Full Story here.
The Center for Justice is representing Otto Zehm's mother and the estate of Otto Zehm in a civil trial and has full coverage on the new information released by United States Attorney's Office that suggests that city officials were involved behind the scenes to clear the Spokane police officers involved in the death of Otto Zehm three and a half years ago. Check out some other Center For Justice projects here including upcoming events like the Dirty Martinis for a Clean River Benefit.