Prosecutorial Misconduct Taken to A Whole New Level

Orange County, CA – Its no secret that many felons, defense attorney’s, and inmates believe that the office of the prosecutor fights unfairly and plays dirty. The reality is, there isn’t much oversight to keep prosecutors from doing so. Making matters worse, there is nearly no mechanism used to punish prosecutors who do.

Charge bargaining (plea extortion), trial penalties, and Brady violations are all common forms of prosecutorial misconduct. They are very easy to suspect, but often very hard to prove.

Hard to prove, that is, until a story like this comes out. A judge in Orange County has disqualified any prosecutors from the county District Attorney’s office from participating in a specific criminal case because of rampant corruption and civil rights violations against defendants. Shaun King over at the Daily Kos exhaustively goes over the allegations and the events leading up to the disqualification of prosecutors. His piece gets started this way:

Between San Diego and Los Angeles is Orange County, California. With more than 3 million residents, it’s larger than 21 states. If Orange County were a separate country, its economy would be the 45th largest in the world. Now known for Disneyland, the county may soon be known for having one of the most corrupt justice systems in the world. The width and depth and duration of the corruption truly boggles the mind. A case that should’ve been open and shut has blown the lid off some deep secrets.

On October 12, 2011, Orange County experienced the deadliest mass killing in its modern history. Scott Dekraai killed 8 people, including his ex-wife, in a Seal Beach beauty salon. He was arrested wearing full body armor just a few blocks away. Without a doubt, Dekraai was the perpetrator. A dozen surviving witnesses saw him. He admitted to the shooting early on. Yet, nearly four years later, the case against him has all but fallen apart.

It turns out that prosecutors and police officers committed an egregious violation of Dekraai’s rights—so much so that Superior Court Judge Thomas Goethals shocked everyone and removed the Orange County District Attorney’s Office, and all 250 prosecutors, from having anything more to do with the case.

The entire piece is worth a full read, and will make your blood boil.

Learn from the Small Cases

In a new article from The Crime Report, taken from a NY Times article, small cases involving first-time offenders give big lessons to learn. The article is long, but has some great tidbits that all American’s can learn from. It get started this way:

Anthony, a 28 year-old African-American school bus driver with no criminal record, is in the passenger seat of a friend’s car when the police pull it over for a burned-out brake light. The cops search the car, and they find a pipe with marijuana residue in the console. In New York, simple possession of marijuana leads only to a civil violation, but the police describe this pipe as being “open to public view”— so they arrest both men and bump the charges up to misdemeanors.

Because of that charge, Anthony is automatically and immediately suspended from the job he has held for seven years, pending the disposition of the case.

And later it goes on to discuss why the prosecutor maintained the criminal charge, versus deflating it to a civil penalty. One year free and clear of crime was the first offer the prosecutor put forward in order to drop the misdemeanor charge. Anthony balked, and that was taken down to 90 days. That’s still three months without a paycheck. Anthony balked again and the case was rescheduled for hearing in another month. Anthony is unemployed until then.

The article continues:

We tend to think that the job of a conscientious justice professional is to protect a presumptively safe system from dishonest, lazy, or incompetent fellow humans. But in Anthony’s case none of the humans violated the rules. No one likes the outcome, but everyone did his or her individual job as they’d been taught to do it.

Does that mean no one is responsible? Safety experts in aviation, medicine, and other fields would say everyone is responsible.

The cops made the stop and wrote the “public view” application; the prosecutors “papered” the case and refused to throw out the misdemeanor; the defense failed to find a way to make the questionable basis for the charge count for something; the judge took the path of least resistance and gave the thing a new date.

All the while Anthony is out of a job, on the unemployment lines, and absorbing resources from the system rather than adding to them. First-time offenders often don’t do what is required to make situations like this better for them because the system just rolls over them in a cacophony of lethargy and apathy. Learn how to avoid mistakes first timers make to avoid looking at the unemployment line or worse.

Visit the First-Time-Offender website and read up on protecting yourself from becoming just another story.

Prosecutors and Bullying

The title of this post comes from the new essay, “Threats and Bullying by Prosecutors” by Bennett L. Gershman, a law professor at Pace University. The essay, available for free right here, is definitely worth a full read at only 19 pages, but below I will take a moment to highlight some of the sections and ways Professor Gershman deconstructs the ways prosecutors bully and threaten defendants. It starts out this way:

[Prosecutors] have been described as “virtuous,” “prudent,” “ethical,” “good,” “unique,” and “gamesmen.” But there is one persona that seems to have eluded characterization and commentary: the prosecutor as a bully. In fact, one of the most prominent features of U.S. prosecutors is their ability to threaten, intimidate, and embarrass anyone – defendants, witnesses, lawyers – without any accountability or apology. This is the conduct of a bully.

On Intimidating Grand Jury Witnesses

A state senator’s chief of staff is called in to testify against his boss. He doesn’t want to testify, but is granted immunity and told his refusal to testify can be punished with contempt, and lying is perjury. The witness says he can’t remember a meeting between his boss and a wealthy real estate developer…

The prosecutor, in an extremely agitated tone of voice exclaims: “You know you are lying. Don’t insult this grand jury. You’ll be in jail in a heartbeat unless you tell the truth. You’ll be finished. You will never work again.”
Are the prosecutor’s threats a legitimate exercise of prosecutorial power? Do these threats enhance or degrade the prosecutor’s ethical duty to serve justice?

More Highlights

Gershman goes on to highlight prosecutorial conduct in coercing guilty pleas, attacking defense experts, bullying defense witnesses (and even their own prosecution witnesses), compelling waiver of civil rights claims, retaliation, demagoguery, shaming, and coercing corporate cooperation.

Look for future posts highlighting more sections of this important essay. Any first-time offender will learn quickly how true this information is. He or she will feel bullied and coerced by the prosecuting attorney and wonder how this is part of the legal system they’ve been taught to trust. A fantastic guide for all first time offenders can be found at the first-time-offender website, which hosts the ultimate resource for anybody facing their first charge.

Appeal Waivers and Supervised Release

Federal Plea Agreements

The Devil is in the Details

Over 95% of federal defendants plead guilty, according the the Bureau of Justice Statistics. Because of Bill Otis, Law Professor and contributor to Crime and Consequences, most plea agreements now come with appeal waivers: a waiver of the defendant’s right to appeal.

On the surface, at least to this blogger, the waiver of appeal would bar any appeal of conviction and sentence (except for maybe the habeas writ from 18 U.S.C. §2255). What about the imposed terms or conditions of Supervised Release? Are you barred from appealing or moving to change these?

This is one of those times that it really matters where you are convicted.

The Fifth Circuit – Out of Luck

From US. v. Scallon and Findlaw’s 5th Circuit Blog:

Unlike Cooley v. United States, in which the Fifth Circuit ruled that a waiver of appeal didn’t bar a defendant from appealing if he was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” there were no altered guidelines for supervised release in Scallon’s case.

Signing a plea agreement and waiver of appeal may get your client out of jail faster — or help him avoid jail altogether — but it also means he waives his right to appeal. Make sure your plea-bargaining clients understand that “waiver of appeal” is more than just terminology; in the Fifth Circuit Court of Appeals, it’s binding on both the sentence and the supervised release terms.

The Third Circuit – Have at It

From U.S. v. Wilson and Findlaw’s 3rd Circuit Blog we get the opposite answer:

When a criminal defendant waives his right to appeal, the courts take him at his word that he is, in fact, waiving appeals.

A lot of the defendants don’t think that “waiving appeal” means what the courts think it means (Inconceivable!) and they appeal anyway. It usually doesn’t work. But a Third Circuit concluded this week that a waiver of appeal did not bar an appeal of an order modifying the terms and conditions of supervised release.

So there it is, a circuit split that helps some but not others. If you’re surprised at the 5th Circuit’s conservative reading of appeal waivers, then you must be new to the game. Anybody willing to take bets on the 9th?

Prosecutorial Misconduct

Today we have a couple of stories from around the country that will interest those searching for some sanity in American criminal justice.

To start, we have a story from the Federal Criminal Appeals Blog. It turns out that the government believes riding in a car with drugs, even if a defendant had no idea drugs were present, is still a crime worth many years in federal prison. The story goes like this: a construction worker (Mr. Tavera) was riding to Tennessee to do a roofing job.

Prosecutor Hides Evidence of Innocence

Tavera’s driver had lots of construction equipment in the back of the truck, including a bucket of nails and a large quantity of methamphetamine below those nails.

The US Attorney for the case was told by the truck driver that Tavera had no idea the Meth was there, but forgot to mention that at Tavera’s trial which ended up netting him over 15 years in prison.

From the story:

AUSA Taylor never told Mr. Tavera’s lawyer that Mr. Mendoza said Mr. Tavera isn’t guilty.

And, as a result, the jury never heard that the only other guy in the car told the prosecutor that Mr. Tavera didn’t know about the drugs.

As the Sixth Circuit said, “Mendoza’s statements to Taylor were plainly exculpatory.”

The Supreme Court has said that the government has to hand over all information that is exculpatory and that if it fails to do that, the prosecution is fundamentally unfair.

Yet, despite that the law is crystal clear on this, the Sixth Circuit notes that “nondisclosure of Brady1 material is still a perennial problem, as multiple scholarly accounts attest.”

The prosecutor, as the Sixth Circuit explained, figured it was Tavera’s fault for not doing a good enough job on defense. However, US Supreme Court history is very explicit that it is the prosecutors job to be forthcoming with any such evidence to ensure a fair trial.

With the deck already stacked so squarely in favor of the prosecution in federal cases, do they really need to act this poorly? The Sixth Circuit decided that this was so clearly unfair, that it ordered a new trial.

How long will this new trial even last with this evidence on the record for a jury to see? My guess: not long.

  1. Any evidence of innocence possessed by the prosecution, known as exculpatory evidence, is required to be turned over to the defense before trial. Brady material refers to evidence of innocence, from Brady v. Maryland, 373 U.S. 83 (1963) []

The Suicide of a Federal Criminal Defendant

Silicon Valley and the DOJ Collide in Tragedy

Below is the story of PACER, Aaron Swartz, and a brilliant life cut far too short.

PACER

For years I’ve been working with, and silently cursing, PACER. This system, which stands for Public Access to Court Electronic Records, is an online system built and maintained by the federal government to give its citizens electronic access to court records.

As it usually goes, the government collects a fee for this services. Recently, although the system was already extremely profitable, they upped the cost per page by 25%1. Adding insult to pocket-book-injury is that this charge wasn’t levied because the old system was updated. We now just pay more for the same antiquated system that’s always been there.

Aaron Swartz

Activist. Programmer. Child Prodigy. Federal Criminal Defendant.

Aaron made a bigger impact on the internet by age 14 than many talented programmers will ever accomplish.2

As a programmer, he was a child prodigy. As an activist, he was fearless. If you’re reading this blog, on this website, chances are you’re probably very familiar with how relentless and intimidating the federal government can be to tangle with. Aaron saw the PACER system (see above) and decided to do something about it.

Instead of paying for the same pages over and over again, he took a piece of code called RECAP and ran with it. In the words of somebody more knowledgeable than me on Aaron, Cory Doctorow wrote:

At one point, he single-handedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access. After activists built RECAP (which allowed its users to put any case law they paid for into a free/public repository), Aaron spent a small fortune fetching a titanic amount of data and putting it into the public domain. The feds hated this. They smeared him, the FBI investigated him, and for a while, it looked like he’d be on the pointy end of some bad legal stuff, but he escaped it all, and emerged triumphant.

In very basic terms, he took these documents which are in the public domain3 and prevented the federal government from getting paid on them. Hence, he pissed off people that don’t normally get messed with. He faced legal trouble, but came out of it clean.

After this, Aaron was very busy with public interest activism. At one point he decided that some scholarly and important documents4 hosted by JSTOR needed to be liberated from their server. So he planted a laptop in an MIT closet, grabbed a few million articles, and then retrieved the laptop.

Enter the Government

Aaron’s actions were probably nothing new to the folks around MIT and Harvard. However, his actions beforehand didn’t help his reputation with the federal government, and the US Attorney’s office didn’t hold back when bringing charges. As a federal criminal defendant, Aaron was looking at serious jail time, or so he was threatened.

From Tim Cushing of TechDirt:

Swartz, the executive director of Demand Progress, was charged with violating the Computer Fraud and Abuse Act, a catch-all designation for “computer activity the US government doesn’t like.”

Swartz had accessed MIT’s computer network to download a large number of files from JSTOR, a non-profit that hosts academic journal articles. US prosecutors claimed he “stole” several thousand files, but considering MIT offered this access for free on campus (and the files being digital), it’s pretty tough to square his massive downloading with any idea of “theft.

Much more has been written on this case. Read about what others had to say on prosecutor bullying in this case , when the law is worse that then crime, and how his actions turned affected one member of the tech community.

A Sad Ending

Despite 18 months of negotiation and legal posturing, it seemed as those Aaron would spend the rest of his life labeled as a felon. This is a label a lot of readers of this blog share and know the consequences of. To avoid this, a brilliant mind, prodigy, genius, and public activist killed himself.

I never met Aaron, but his work resonated through the word of tech, all the way to this lowly federal criminal consultant writing for this blog. His work making public records actually public and free reached even this far, and that says something profound.

  1. from $0.08 USD per page to $0.10 USD []
  2. Namely, he wrote the specs for RSS feeds that we all use in one form or another these days. []
  3. http://en.wikipedia.org/wiki/Public_domain []
  4. research papers, journal articles, thesis papers, etc. []

9th Circuit Restricts Computer Fraud Prosecutions

As reported by The Recorder, the 9th Circuit Court of Appeals has done much to narrow the scope of the Computer Fraud and Abuse Act. In their article about this circuit decision, the Recorder reports that you cannot be criminally prosecuted for checking out Facebook or football scores at work.

“We shouldn’t have to live at the mercy of our local prosecutor”

Below is an excerpt from the original article at law.com:

Don’t worry: it’s not illegal to read this article at work.

In a highly anticipated test of the Computer Fraud and Abuse Act, the U.S. Court of Appeals for the Ninth Circuit construed the law narrowly Tuesday, saying prosecutors can’t use it to go after someone who checks sports scores from a work computer or fibs on Facebook. The 1984 law is an anti-hacking statute, not a tool to make federal criminals of anyone who violates employer computer policies or a website’s terms of service, the en banc panel said in a 9-2 opinion in U.S. v. Nosal, 10-10038.

“The government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer,” Chief Judge Alex Kozinski wrote for the majority. “This would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime.”

In splitting from other circuits and reversing the panel decision, the court said the plain language of the statute prohibiting someone from “exceeding authorized access” to a computer does not extend to violations of use restrictions. The majority said there are other laws the government can use to prosecute someone who steals confidential information, and that a narrow interpretation of the CFAA is necessary because “we shouldn’t have to live at the mercy of our local prosecutor.”

The ruling affirms San Francisco U.S. District Judge Marilyn Hall Patel, who junked five counts in the government’s case against David Nosal. He is the former employee of an executive search firm accused of having colleagues access a confidential database to get information for his new competing business. “Because Nosal’s accomplices had permission to access the company database and obtain the information contained within, the government’s charges fail to meet the element of ‘without authorization, or exceeds authorized access,'” Kozinski wrote.

The court illustrated its point with a series of alarmist scenarios: Under the government’s view of the law, the “short and homely” person’s claim on Craigslist to be tall, dark and handsome could earn the poster a “handsome orange jumpsuit.” Vast numbers of teens who used Google could have been deemed “juvenile delinquents” since until last month the company’s use agreement technically barred minors from using its services.

For the government, the case was not about white lies and people goofing off at work. . Nosal, they argue, was up to no good, and the statute requires an “intent to defraud.” The dissenting judges make that point.

“This case has nothing to do with playing sudoku, checking email, fibbing on dating sites, or any of the other activities that the majority rightly values,” Judge Barry Silverman wrote, with Judge Richard Tallman joining. “It has everything to do with stealing an employer’s valuable information to set up a competing business with the purloined data, siphoned away from the victim, knowing such access and use were prohibited in the defendants’ employment contracts.”

Prosecutors have taken an aggressive posture in this case, appealing even when many criminal counts remained intact at the trial level and bringing in a lawyer from Main Justice, Jennifer Ellickson, to argue. Nosal’s appellate counsel Dennis Riordan said in light of that, he expects there to be a push inside the department to file cert. However, he said, the Solicitor General’s office, which makes the call, may think twice about pursuing this particular CFAA case, considering Kozinski’s “very, very powerful and well reasoned opinion.”

It is difficult to imagine why the dissenting opinion here did not see the ‘slippery slope’ of unintended consequences if the en banc decision of the Ninth Circuit were to have gone the other way.

It reminds me of the Supreme Court’s decision in Gonzales v. Raich which didn’t go as well as this case. In Raich, the Supreme Court decided that marijuana grown for legal, personal use inside a California residence could be federally prosecuted as interstate commerce. This may be confusing to the non-lawyer because the represented facts of the case were neither interstate nor commerce.

I am encouraged when I see appellate decisions that actually curtail federal prosecuting authority, rather than expanding them. Kudos to the 9th!

Good Advise for those Entering Federal Prison

In an article posted Thursday by former Missouri state senator Jeff Smith, a set of tips for entering federal prison were laid out.

The article was written to former Illinois Governor Rod Blagojavich on his impending report to federal prison. These tips are seem very remedial to those that have been inside federal prison, they don’t really need saying. However, for those who have never experienced it themselves, the tips are spot-on.

Below are excerpts from the original article from the Chicago Tribune.

After spending a year in federal prison on an obstruction of justice charge stemming from a 2004 congressional campaign violation, I have a few tips for former Illinois Gov. Rod Blagojevich as he heads for prison.

1. As your grandma probably taught you, God gave you two ears, two eyes and one mouth — use them in proportion.

• When you get to prison, listen, watch and learn. You’ll have a hundred questions on your first day and in one month you will know the answer to 90 of them without having to ask and risk looking stupid.

• Don’t ever ask anybody about their crime. If they want to tell you what they did, fine. But you won’t know if they’re telling the truth. And if you ask and strike a nerve with someone, the result may not be pretty.

• Don’t talk about how you got railroaded. So did everyone else.

• Don’t ask anything about anyone’s family; it will be a sore subject with many, especially those who have not seen or heard from their children or ex-wives in years.

• Don’t ever talk about how much time you have. Someone else has more.

2. Embrace your background, but don’t try to be a politician.

• The prison guards and administration will probably resent your presence, as it will mean added scrutiny on prison operations. Your charm will not work on them, so don’t try it. Instead, be as deferential as possible and try to blend in.

• You will have a nickname. It will probably be “Governor.” Accept that, but do so with deep humility.

• As a politician you were known for your gregariousness. But prison isn’t the Loop; not everyone wants to shake your hand. In fact, because of a collective obsession with hygiene and a fear of illness, no one in prison shakes hands — they bump fists. That doesn’t mean you should stroll down the compound fist-bumping dudes on your first day. As a hoops announcer might advise a star player in a big game, don’t press too hard; let the game come to you.

3. Get in the best shape of your life.

• Unlike most people, you are coming to prison in great shape. But you can always be in better shape. Set personal goals — maybe you want to run a marathon in prison; maybe you want to bench press 300 pounds. Working out every day will help pass the time, keep your endorphins pumping and keep you in a better frame of mind.

• Use your knowledge of running to help others lose weight. Inmates can control almost nothing, and since their body is one of the few things they can change, most work assiduously to improve themselves. Going running with others and helping them get in shape may be an effective way to build alliances.

• Play sports, but if your taste runs to contact sports such as basketball, be careful. Some people who have it out for you may exploit the opportunity to try to hurt you on the athletic field and not get in trouble for it.

4. Correspond with anyone who writes you.

5. Forgive your enemies.

6. Don’t complain about how bad your prison job is, and don’t brag about how good it is.

• Try to get a job working in the rec center or as a warehouse clerk, two of the most pleasant jobs in prison. But if you don’t get one, don’t complain about it. Just as is the case in any other environment, no one likes complainers. But in prison, people really don’t like them, because it’s a given that everyone is miserable.

7. Learn something new.

• Read all the books you wanted to read, but never had time. Then read all the ones you should have read, but didn’t want to.

• When the novelty wears off and the people who approach you are doing more than rubbernecking, don’t discount the possibility of making lifelong friends. You will meet some of the most fascinating people you have ever met, from all walks of life. Listen to their stories, and learn from them.

8. Use your unique knowledge and skills to help other inmates.

• Use your legal background to help prisoners who are bringing appeals pro se (representing themselves), but do so quietly so that you aren’t swamped with requests.

9. Don’t snitch, under any circumstances.

• The only people in prison who have it harder than child molesters are snitches. You need to learn how to see things (weapons, illegal drugs, people making hooch, pornography, etc) without seeing them; that is, learn to look away before anyone has seen you see the contraband.

• Stay away from snitches, and in general, watch the company you keep: in prison, you are your car (car = the people you “ride” with).

• If you committed other crimes for which you were not prosecuted, or are plotting any, don’t discuss them. As I’m sure you are now aware, you never know who’s listening.

• Don’t be seen talking to the Cos (correctional officers). Just like you could be cordial to Republicans but not be best friends with them without arousing suspicion among Democrats, you cannot be “friends” with the guards. Sure, there may be gangs and racial/ethnic division among prisoners. But there are really only two teams: inmates versus the prison. When guards try to get you to regale them with stories, resist the impulse to be on stage again. Do not forget this rule.

10. Don’t break prison rules.

• This may seem contradictory. The last rule suggested that you should tolerate prison rule-breaking — and you should. But try not to violate rules yourself.

• Don’t gamble. If you lose, you’ll be in debt and you do not want to be compromised like that. If you win, someone is likely to be very angry and may figure out a way to get his money back — a way that might leave you unrecognizable.

• Don’t “hold” anything someone asks you to hold, even if it looks innocuous; it’s probably got contraband inside of it.

• If you need a hustle to survive (i.e., stealing and selling food from the kitchen, washing and ironing others’ clothes), try not to encroach on someone else’s hustle. Presumably, others will need the stamps (money) more than you. Competition can be fierce.

11. Don’t look for trouble.

• Don’t change the TV channel, especially if women’s track is on, or “Ice Loves Coco.” There is an inscrutable yet stringent seniority-based regime when it comes to TV watching, and your celebrity does not entitle you to alter it in any way.

• Don’t stare.

• There is generally no reason to make eye contact with people unless they say your name.

12 Don’t eat the Snickers.

• You’ll go through orientation. You will be shown a mandatory sexual assault prevention video featuring a guy warning you not to eat the Snickers bar that may be waiting for you on your bed in your cell. (The actor ate the one left under his pillow, unwittingly signaling the predator who left it for him that he was ready and willing.) All the guys watching the video will laugh. But take the video’s message to heart: Don’t accept sweets from anyone.

Good luck, Governor. One day at a time.

Although these tips may not be most applicable with higher security prisons (the writer was a very low security level), the advice still resonates and can be applied with reasonable liberalness.

The 11th Circuit, Fricosu, and the 5th Amendment

Electronic Decryption Orders

As can be read in our previous posts (here and here), a case in Colorado has caught the attention of the nation in its implications on the 5th Amendment to the United States Constitution.

This case touches on the Constitution, fraud, sex offenses, electronic freedoms, and many other incredibly important topics. Yesterday, the 11th Circuit Court of Appeals took up the topic in a separate case (US v. Doe) and disagreed with their own lower court’s mandate to supply unencrypted data for the prosecution. In Doe, the defendant was ordered to produce an unencrypted version of his hard drive(s). Doe refused to comply. From In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011:

We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced. Stripped of Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt. The district court’s judgment is accordingly REVERSED.

Back Story

In Colorado, a defendant (Fricosu) may or may not have incriminating evidence on her laptop hard drive that was seized by authorities. The government asked for, and was granted, an order forcing Fricosu to produce a decrypted copy of that hard drive. Fricosu appealed, saying that doing so violates her 5th Amendment protections against self-incrimination. The appellate court refused to rule until the case was finished in the lower court.

The order forcing Fricosu to give over potentially incriminating evidence, and other similar orders from around the country, has troubling implications on the 5th Amendment in the new, digital world.

…and even further back…

In Fricosu, the presiding judge relied heavily upon the very limited precedents from around the country. Every one of these precedents were from child pornography cases where the courts didn’t seem to mind infringing on 5th Amendment protections, so long as sex offenders were the losers.

As with all history, equal protection exists for everybody, and infringing on one (hated) groups rights will eventually spill over onto the rest of the population.

Equal Protection

It may be hard to do, and sometimes even harder to stomach, but protecting the rights of the least popular citizens of any society is vital. This effort prevents [G]overnment from “taking a mile” for every inch of leeway given to it.

Kudos to the 11th Circuit for making this decision. Let us all hope that, regardless of coexisting immunity given to defendants, the 10th Circuit will follow suit and not allow its lower courts to be so cavalier with the 5th Amendment.

Update: Fricosu, The 10th Circuit, and the 5th Amendment

U.S. v. Fricosu

2/23/12 – As we previously discussed in this post, the government wants to force the defendant in the above-titled case to turn over an unencrypted hard drive that may or may not have incriminating evidence in it. The district judge granted the governments motion to force the defendant to supply the hard drive. This decision was appealed to the 10th Circuit Court of Appeals, who refused to rule.

Note: Demanding an actual password violates the 5th Amendment protections. The presiding judge in Colorado side-stepped this issue by not requiring Fricosu to give up her password but, instead, requiring her to produce the decrypted hard drive by using her password.

Because the appeals court chose to let the case run its course in the lower court before allowing the issue here to be raised on appeal, the ruling stands and Fricosu has until Monday to turn over the unencrypted version (read: a copy) of her laptop hard drive.

The Future

This case has frightening implications on the 5th Amendment to the U.S. Constitution. The process will get rocky. Fricosu can refuse to produce the hard drive1 and face contempt charges,2, or she can comply and face conviction if the incriminating material that the prosecution believes is on the hard drive is actually there.

If she complies and is convicted3, only then can she appeal her conviction to the 10th Circuit Court of Appeals to challenge the order to produce the hard drive that directly led to her conviction.

Updates will be posted as they come in!

  1. If she is able to. Her defense attorney says she may not have the capabilities to even comply with the order []
  2. Under rule 42 of the Federal Rules of Criminal Procedure []
  3. Where that conviction is predicated primarily upon the evidence from the unencrypted hard drive []