|
|
|
| Contact |
NEWS |
| June 4, 2003 AMERICA'S QUEEN OF "STYLISH LIVING" - MARTHA STEWART - iNDICTED BY NEW YORK'S U.S. ATTORNEY (NEW YORK, NEW YORK) - On June 3rd Martha Stewart Living Omnimedia, Inc. announced that it had been "informed by Martha Stewart's attorneys that the United States Attorney's Office for the Southern District of New York has informed them that Ms. Stewart is a target of a criminal investigation and that the United States Attorney's Office intends to request the grand jury to return an indictment against her in the near future. Additionally, MSO has been informed that a civil complaint by the Securities and Exchange Commission is also expected." As matters turned out, a 42 page Grand Jury Indictment was, in fact, filed in federal district court against Martha Stewart and her broker, Peter Bacanovic. Mrs. Stewart has been charged with the crime of "lying." As a result of the federal Grand Jury Indictement, on June 4th Martha Stewart and the Board of Directors of Martha Stewart Living Omnimedia, Inc. (NYSE: MSO) announced that they had agreed that Ms. Stewart will relinquish her responsibilities as Chairman and Chief Executive Officer and continue to serve the Company as its Founder and Chief Creative Officer, as well as a member of its Board of Directors, effective immediately. Accordingly, the Company put into effect senior management and governance changes designed to ensure MSO's continued progress. Specifically: Sharon Patrick, the Company's President and Chief Operating Officer, has been appointed by the Board to be Chief Executive Officer; Jeffrey Ubben, a founder and Managing Partner of ValueAct Capital Partners, L.P., an investment partnership that owns 22% of the Company's class A common stock, has been elected Chairman of the Board; and Arthur Martinez, a director and former Chairman and Chief Executive Officer of Sears Roebuck, has been named Lead Director and will preside over all meetings of independent directors of the Board. "I love this Company, its people, and everything it stands for and I am stepping aside as Chairman and CEO because it is the right thing to do. This will enable the Company to continue to build the confidence and love of its readers, viewers, customers and strategic partners, without the distraction of my personal legal issues," Ms. Stewart said. "My decision reflects the enormous sense of responsibility I feel to our shareholders and to all those who have worked so hard to make Martha Stewart Living Omnimedia a success. We have mobilized a wonderful team of people, each with particular expertise who will serve the Company extremely well. I will continue to be instrumental in the Company's creative efforts, across the entire Omnimedia spectrum, including all of our print and television products, working with our exceptional array of creative experts to develop the unique ideas and content that have defined our Company and all of its brand labels since its inception. "I thank all of our subscribers, our viewers, our Internet users and our other consumers for their continued support, and I hope many other people will look to Martha Stewart Living Omnimedia for the kind of information and inspiration that we create." "The Board and the Company's senior management respect Martha's decision and she has our full support," Mr. Ubben commented. Editor's Note: While it may not be nice to be sued by New York's U.S. Attorney, this little indictment has all the markings of making Martha Stewart a true billionaire....... even if she is convicted of "lying." May 14, 2003 CALIFORNIA'S ATTORNEY GENERAL LOCKYER APPLAUDS FULL FUNDING OF CRITICAL PROGRAMS FOR LAW ENFORCEMENT AND PROSECUTORS - Governor Does A "180" And Restores Budgets For Witness Protection, Spousal Abuse and DOJ Crime Lab Services (SACRAMENTO) - Attorney General Bill Lockyer today praised Governor Gray Davis for restoring full funding for important programs that help local prosecutors and law enforcement agencies protect victims and witnesses and obtain convictions in violent crimes. "No California governor has ever faced tougher budget decisions, but in protecting vital state and local public safety programs, Governor Davis definitely made the right call," Lockyer said. "His decision to continue funding for critical programs that provide first-rate forensic lab services, protect witnesses so they can testify against violent criminals and get justice for victims of domestic violence is essential to public safety, and greatly appreciated by all of us in law enforcement."
"Governor Davis has been a strong advocate for law enforcement and his difficult decisions today demonstrate the high priority he places on public safety," said Sacramento County Sheriff Lou Blanas.
"We're grateful the governor has protected public safety even in the face of this severe budget crisis," said Los Angeles District Attorney Steve Cooley. "Restoration of witness protection money will save the lives of witnesses and victims in gang cases in Los Angeles ."
In his revised budget plan, the governor has proposed restoring full funding to three programs identified by Lockyer in January as crucial to local law enforcement agencies and prosecutors:
Crime Labs: The Department of Justice's Richmond DNA lab and 10 regional crime labs have provided professional, expedient and free forensic services for the past 30 years to local law enforcement agencies from 46 of the states 58 counties. Located in Chico , Eureka , Freedom, Fresno , Redding , Ripon, Riverside , Sacramento , Santa Barbara and Santa Rosa , the labs collect, process and analyze DNA, fingerprints, ballistics, clandestine lab, blood samples and other crime scene evidence.
The governor's full funding of the program would save local law enforcement agencies an estimated $3.5 million in forensic fees during fiscal year 2003-2004, and $7.1 million in 2004-2005.
Spousal Abuse Prosecution Program: The Department of Justice provides grants to district attorneys to provide investigative, victim support and prosecutorial services in domestic violence cases. By having a trained team of professionals responsible for spousal abuse cases involved through the end of the trial, domestic violence victims are spared from being re-victimized by having to repeat their story to new investigators and prosecutors.
The governor's "May Revise" proposes $3.2 million for the program, which was the amount spent in 2002 to provide grants to 47 city and county prosecutors for legal, investigatory and counseling services in these difficult family violence cases.
California Witness Protection Program: The Department of Justice provides grants to local law enforcement to ensure the safety of victims and witnesses whose testimony is vital to obtain criminal convictions. Since the program began in 1998, it has assisted in the successful prosecution of more than 2,850 serious and violent offenders in 42 counties. More than 3,800 witnesses and family members have been relocated or otherwise protected.
In the fiscal year ending June 30, 2002 , the program provided grants of $2.8 million to protect 456 witnesses and 693 witness family members who were involved in 376 cases against 637 defendants. Of those cases, 280, or 74.5 percent, were gang-related.
"Protecting public safety programs at the local level is an important piece of the governor's overall budget plan," Lockyer said. "I commend the governor for crafting a proposal that is fiscally responsible and fair and which moves California a big step toward its goal of enacting a budget on time." Editor's Note: It appears that AG Lockyer's recent efforts at stumping up and down the State have paid off in terms of, once again, raising the "tough on crime" issue before Governor Davis. Obviously, when one raises the issue of crime, the Governor has little stomach to put forth any rational fiscal plan or to even address the issue of the fiscal responsibility of the State. April 28, 2003 CALIFORNIA'S STATE BUDGET WOES HIT COURT SYSTEM HARD The California State Bar reported that California's courts, already struggling with whittled-down budgets, face a worst-case scenario of a $396.4 million shortfall next year, a devastating possibility one court official said "would severely cripple the entire judicial system." The staggering budget reduction likely would lead to the elimination of many programs instituted in recent years, closing courtrooms or reducing hours of operation, reducing or freezing salaries, early retirement, and possible layoffs. "We're talking about things that are simply horrendous," said Los Angeles Appellate Justice Norman Epstein at a recent Judicial Council meeting. Resigned to the financial realities, the council offered little discussion before adopting a series of recommendations authorizing the staff to adjust budgets to meet the crisis and to appeal to the governor for more funds to pay for mandated costs. Like most other public entities affected by California 's projected $34 billion deficit, the judicial branch, whose $2.5 billion budget accounts for slightly more than 2 percent of the total state budget, slashed spending for the current fiscal year by $154 million, a 5 percent reduction. When Gov. Davis proposed mid-year cuts in December, the courts took another $44.5 million hit for the remainder of the fiscal year ending June 30. Of that, trial courts will absorb a loss of $36 million and the judiciary (Supreme Court, Courts of Appeal and the Administrative Office of the Courts) will lose another $8.5 million. Each trial court submitted to the AOC proposals for achieving the required cutbacks, which include early retirement, involuntary work furloughs, slicing full-time jobs to three-quarters or half-time, merging traffic and collections divisions, limiting night courts, postponing equipment purchases or buying lower quality equipment and no longer providing district attorneys and public defenders with daily copies of detailed court calendars. "Some things that are nearest and dearest to my heart will be affected," said Chief Justice Ronald M. George. He added that he hopes layoffs can be avoided, but "no areas will be immune" from the budget ax. Some counties already have scaled way back. Los Angeles County, for example, which has the largest trial court system in the United States, has closed 29 courtrooms, laid off part-time and student employees and 70-80 full-time workers, and has a $57 million deficit. At the other end of the spectrum, Yolo County's 110 court employees, with the exception of one criminal law department, took off eight days without pay at the end of last year, and the court's offices close early every day and shut down at lunch. During the Christmas holidays, the Placer County courthouse was shuttered for two weeks. Courtrooms in Alameda County close at 4:30 p.m. daily, and the clerk's office closes at 4. Riverside County 's public offices close early and Orange County has ceased its night court operations, save one night a month. Fresno County instituted voluntary furloughs and froze its 22 vacancies, its Family Law Information Center closed six months early because the grant funding ended, and it has huge backlogs in its criminal and traffic departments. "This is a total crisis," said Tamara Beard, executive officer of the Fresno courts. "I've never seen anything like it in my 22 years in the courts." In so-called "spring letters" sent to the governor each year to try to win more funds, the Judicial Council will seek $61 million for the trial courts this fiscal year to pay for such mandated costs as retirement, workers' compensation, postage, increased charges for county-provided services and converting temporary help to permanent positions, as required by recent legislation. These represent costs that were submitted to the governor previously, but were rejected. If the additional funding is not provided, if cost-cutting or revenue-producing legislation fails, and if the state's fiscal woes don't improve, or worsen, the courts will face a whopping $396.4 million shortfall next year, said Judicial Council deputy director Ron Overholt. Compounding the shortfall is the fact that, like many other state agencies, a high percentage of the courts' funding is non-discretionary. In the trial courts, for instance, 61% of the budget is non-discretionary and includes judicial salaries, jury services, and constitutionally required criminal expenditures. In the appellate courts, an even larger portion - 74% - of the budget is earmarked for non-discretionary expenses, such as judges' salaries, rent, appointed criminal defense counsel and the Habeas Corpus Resource Center. Some of the governor's proposals, whether cost-saving or revenue-generating, have met with resistance from the Legislative Analyst's Office and others face powerful political opposition. For instance, Davis wants to increase several court filing fees which could generate $66.2 million in revenues. A new court security fee would add $20 per civil filing and $20 in criminal cases where the defendant is convicted, and trial motion fees would cost another $10. An increase in the appellate filing fee, from $265 to $630, would generate $2.1 million by the governor's estimate. However, the legislative analyst has criticized increased fees as a possible impediment to the courts for low-income people. The legislative analyst supports a proposal to allow the courts to take competitive bids for security services, which Davis believes could save $22 million. Sheriff's deputies provide security in most courthouses, and the analyst believes their growing salaries are a big factor in increased security costs which could be reduced if private security agencies were hired. Court officials estimate they have seen a 50 percent increase in security costs in recent years. But the proposal has met resistance from the politically powerful sheriff's union. Davis also believes he can save $31 million by switching in some cases from court stenographers to electronic reporting, a proposal which has been blocked in the past. Another $5.5 million savings could be realized if the courts own the transcripts. Besides opposition from the court reporters, another group with political clout, the legislative analyst said more information is needed about staff requirements and management of transcripts from the recordings. The switch would require legislation. In addition, start-up costs would be very expensive and may be an outlay the courts cannot afford right now. George seems willing to take on the sheriffs and court reporters, noting in a recent statement that the courts can achieve some savings "if we have the strength of will to reexamine how we conduct our business in many areas (such as security, traffic adjudication, maintaining the records of court proceedings, etc.)." The cutbacks are particularly painful to a court system whose executives, from George on down, have emphasized improved access to the public, particularly those who might be underserved, and modernization of operations. Many of the advances, such as mediation services, self-help centers, assistance for pro pers, services for families and children, and specialized courts are now at risk. Nonetheless, the Judicial Council agreed that its priority in the coming year will be to keep courts open to provide maximum access to the public. Editor's Note: This above report was published in the April, 2003 edition of the State Bar Journal, the official publication of the State Bar of California, and reported by Nancy Y. McCarthy, Staff Writer. Even more recently, though, on April 30th, Attorney General Lockyer chimed in on the issue of the state's budget woes, stating that any proposed fee that would be charged to county and city law enforcement agencies for use of the Department of Justice's crime labs, was a big concern to him. The added fee proposal is one suggested by California Governor Gray Davis in his attempt to repair the state's huge budget deficit. Lockyer was reported to have said, "Access to first-rate forensic services is critical in solving cases, prosecuting criminals and protecting the public. With the crime rate creeping up, this is no time to balance a state budget deficit on the back of local law enforcement, which is struggling with its own limited resources and funding problems." While some Northern Californai counties elect not to use the DOJ's crime labs, the total fee in question is estimated to be in the neighborhood of $400,000.00 in added annual costs for those Northern California counties that do utilize the DOJ's crime labs. Lockyer, obviously opposed to this added fee, said, "I am an advocate for law enforcement, and I have strong partners to get the job done." April 21, 2003 THE U.S. SUPREME COURT AGREES TO REVIEW TENTH CIRCUIT DECISION WHICH HOLDS THAT PHYSICAL EVIDENCE SEIZED BY THE POLICE AS A RESULT OF A MIRANDA VIOLATION MUST BE SUPPRESSED Today, the U.S. Supreme Court agreed to review a 10th Circuit Court of Appeals decision, U.S. v. Patane (2002) (9/17/02; ___ F.3d ___), wherein the 10th Circuit Court of Appeals held that a defendant, who has been lawfully arrested by the police, but for which there was an admitted Miranda violation (Miranda v. Arizona (1966) 384 U.S. 436) following the defendant's arrest, can still move to suppress the physical fruits of that Miranda violation (here, a gun). This latest decision reflects what has now become a tri-partite division between several of the Circuit Courts, many of which have held that a Miranda violation post-Dickerson (Dickerson v. U.S. (2000) 530 U.S. 428) does not permit suppression of physical evidence, although one Court, the First Circuit Court of Appeals, has held that under certain circumstances, suppression of physical evidence obtained as a direct result of an intentional Miranda violation, does require suppression. The 10th Circuit is the only Circuit Court of Appeals to hold that even a negligent Miranda violation post-Dickerson gives rise to suppression of evidence. Conversely, the government has argued that two U.S. Supreme Court cases supported its argument that the "fruits doctrine" does not apply to a case wherein there was a Miranda violation: Michigan v. Tucker (1974) 417 U.S. 433, 445-446, and Oregon v. Elstad (1985) 470 US 298, 306. In both cases, the Supreme Court refused to apply the fruits of the poisonous tree doctrine of Wong Sun v. U.S. (1963) 371 U.S. 471, 485. However, the 10th Circuit reasoned that, though true, that both of the cases relied upon by the government declined to apply the fruits of the poisonous tree doctrine of Wong Sun to suppress evidence obtained from an un-Mirandized confession, however, both cases were also predicated upon the premise that the Miranda rule was a prophylactic rule, rather than a constitutional rule. (Elstad, 470 U.S. at 305 - “‘The prophylactic Miranda warnings are not themselves rights protected by the Constitution . . . .’” (quoting New York v. Quarles (1984) 467 U.S. 649, 654, “Since there was no actual infringement of the suspect’s constitutional rights, [Tucker] was not controlled by the doctrine expressed in Wong Sun that fruits of a constitutional violation must be suppressed.” Tucker, 417 U.S. at 445-46 (distinguishing Wong Sun because “the police conduct at issue here did not abridge respondent’s constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege”). Because Wong Sun requires suppression only of the fruits of unconstitutional conduct, the violation of a prophylactic rule did not require the same remedy. But, according to the 10th Circuit, the premise upon which Tucker and Elstad relied was fundamentally altered in Dickerson v. U.S. (2000) 530 U.S. 428. In Dickerson, the Supreme Court declared that Miranda articulated a constitutional rule rather than merely a prophylactic one. Id. at 444 (“Miranda announced a constitutional rule that Congress may not supersede legislatively.”); see id. at 432, 438, 440. Thus, Dickerson undermined the logic underlying Tucker and Elstad. Courts applying Dickerson have split on the proper application of Wong Sun to the physical fruits of a Miranda violation. The Third and Fourth Circuits have ruled that the physical fruits of a Miranda violation never are subject to Wong Sun suppression. United States v. Sterling, 283 F.3d 216, 218-19 (4th Cir. 2002), cert. denied, 122 S.Ct. 2606 (2002); United States v. DeSumma, 272 F.3d 176, 180-81 (3d Cir. 2001), cert. denied, 122 S.Ct. 1631 (2002); accord United States v. Newton, 181 F.Supp.2d 157, 179-81 & n.16 (E.D.N.Y. 2002); Taylor v. State, 553 S.E.2d 598, 605 (Ga. 2001); State v. Walton, 41 S.W.3d 75, 88-90 (Tenn. 2001); cf. Abraham v. Kansas, 211 F.Supp.2d 1308, 1323 (D. Kan. July 2002) (holding that “[a]lthough the Court’s holding in Dickerson seems to have altered this general rule [that fruits of a Miranda violation need not be suppressed],” the state court’s failure to suppress physical fruits was not an “unreasonable application of federal law” under 28 U.S.C. §2254(d)(1)); Worden v. McLemore, 200 F.Supp.2d 746, 752-53 (E.D. Mich. 2002) (holding that state court’s failure to suppress physical fruits of Miranda violation was not an unreasonable application of clearly established federal law because of “disagreement and confusion” among courts regarding application of Dickerson). The First Circuit, by contrast, has ruled that the physical fruits of a Miranda violation must be suppressed in certain circumstances, depending on the need for deterrence of police misconduct in light of the circumstances of each case. United States v. Faulkingham, 295 F.3d 85, 90-94 (1st Cir. 2002). The 10th Circuit, however, concluded that the First Circuit was correct that the physical fruits of a Miranda violation must be suppressed where necessary to serve Miranda’s deterrent purpose. However, the 10th Circuit parted company with the First Circuit in the application of that standard, because the 10th Circuit concluded that Miranda’s deterrent purpose requires suppression of the physical fruits of a negligent Miranda violation. Editor's Note: Justice Scalia will undoubtedly have a field day with this case, as he noted back in 2000 in his opening paragraph of his dissent, "Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results will doubtless greet today's decision as a paragon of moderation, since it declines to overrule Miranda v. Arizona, 384 U. S. 436 (1966). Those who understand the judicial process will appreciate that today's decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda (as of all cases): the rationale that gives it a permanent place in our jurisprudence." April 4, 2003 THE BUSH ADMINISTRATION READIES FOR WAR CRIMES PROSECUTIONS AGAINST IRAQIS WHO HAVE FAILED TO DENOUNCE SADDAM HUSSEIN In a little-noticed press release in late February of this year, and in anticipation of a war with Iraq, the General Counsel of the Department of Defense (DoD) released a draft military commission instruction entitled Crimes and Elements for Trials by Military Commission. This instruction lists and defines certain violations of the laws of war and other offenses triable by military commission. The DoD contends that it is prepared to conduct legal proceedings should a military commission be convened. Although no charges have been referred against any individual potentially subject to the jurisdiction of a military commission, the DoD said that this instruction will ensure that DoD will be ready to fulfill its responsibilities if called upon. The DoD asserts that the international law of armed conflict, from which the Crimes and Elements instruction is derived, is a broad and complex area of the law. There is no single legal document that comprehensively codifies this body of law. Rather, contends the DoD, definitions of crimes are dispersed throughout dozens of sources including treaties and conventions, domestic and international statutes, judicial decisions, and the body of custom and practice recognized by the international community. "Over the past few months, DoD and other government lawyers have analyzed these sources of law and consolidated in a single resource a list of certain crimes that potentially may be charged and tried before a military commission as well as the definitions of those crimes," said DoD Deputy General Counsel Whit Cobb. "In the event that a military commission is warranted, this instruction will assist all participants - including prosecutors, defense counsel, and military commission members - to understand what constitutes an offense that is triable under the law of armed conflict." The DoD press release invited public comment on its draft Crimes and Elements Instruction, and advised that the same should be faxed to the Office of the General Counsel of the Department of Defense at 703-614-4432. The February press release stated that the General Counsel of the Department of Defense intended to finalize and publish the final instruction early in March, 2003. However, to date, and most probably due to the war with Iraq, that has yet to happen. March 28, 2003 CALIFORNIA PUBLIC DEFENDERS ASSOCIATION (CPDA) , TOGETHER WITH CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE (CACJ) RESPOND TO CALIFORNIA DISTRICT ATTORNEYS' "WHITE PAPER" ON DEATH PENALTY The California District Attorneys Association (CDAA) recently released a 100 page document entitled Prosecutors' Perspective on California's Death Penalty.
According to the CPDA and the CACJ, this “White Paper” is a misleading attempt to discourage the ever increasing public attention to the question of whether or not the death penalty should be reconsidered because of major problems with the manner in which it is imposed.
The CDAA claims that, unlike other states, there is nothing wrong with the criminal justice system in California and Californians don’t have to think about the possibility of wrongfully convicting innocent people. They claim that the concept of a “moratorium” is an “insidious attack” on the death penalty, but the simple fact is that a moratorium only asks for a break in the resumption of executions while everyone on all sides of the issue work together in an effort to achieve the goals of making sure that the truly innocent are acquitted and the truly guilty are convicted; and that the death penalty is fairly imposed, instead of arbitrarily resulting from the accident of the victim’s race, the defendant’s race, the quality of the defense lawyers involved, or the geographic location of the crime.
The recent commutations by Gov. Ryan of Illinois may have prompted the CDAA’s attack, but anyone truly concerned with convicting the guilty and freeing the innocent should have been inspired to action by the release of the Recommendations by the Illinois Commission on Capital Punishment. The Commission included law enforcement representatives, prosecutors, judges and former prosecutors in addition to defense lawyers and scholars. Their recommendations stemmed from a variety of concerns, including the twin goals of convicting the guilty and acquitting the innocent, because it had become apparent that many innocent people had wrongly been convicted of capital crimes they didn’t commit. After a comprehensive investigation, the Commission found that two of the most common reasons that innocent people are wrongly convicted are mistaken identifications and false confessions, and they proposed a simple solution to these problems: video tape record all custodial police interrogations from the very beginning–instead of just turning on an audio tape recorder after the police have already obtained the statement they have been looking for and now just want to memorialize it on tape; and use identification procedures that do not suggest to the witness in advance who the police want the witness to identify. These procedures have already been adopted in a few other jurisdictions, and the United States Department of Justice has also recommended the implementation of the non-suggestive pretrial identification procedures. The Illinois Legislature, however, failed to implement any of the Commission’s recommendations. It was only after they failed to act that Governor Ryan was forced to do something about it himself nearly a year later.
These problems are not unique to Illinois. Virtually no law enforcement agency in the entire State of California uses the non-suggestive pretrial identification procedures recommended by the United States Department of Justice and the Illinois Commission on Capital Punishment. And it is extremely rare for any California law enforcement agency to videotape their entire interrogation of any suspect in virtually any case; indeed, most agencies never videotape any portion of the interrogation, and almost no California law enforcement agency ever audiotapes the entirety of any interrogation from the beginning. Despite the revelations in recent years of many, many cases where innocent defendants have been wrongfully convicted based on mistaken identifications and false confessions, California prosecutors and law enforcement agencies refuse to take any action to improve the accuracy and reliability of eyewitness identifications or confessions. Instead, their reaction is to simply to refuse to acknowledge that there is any problem in the first place.
The CDAA maintain their stubborn refusal to admit that any California prosecutor has ever obtained a wrongful conviction of an innocent person. Under the law, a person who kills in self-defense is innocent of murder; but although the CDAA admits that a unanimous jury found that Patrick “Hooty” Croy was not guilty of murder because he acted in self-defense, the CDAA claims that he was not innocent and his release after serving 12 years on death row was not a case of an innocent man having been wrongly convicted of a capital crime. The CDAA refuses to acknowledge the fact that Lee Perry Farmer was finally released from prison after almost 18 years, including 8 years on California ’s death row, when a unanimous jury in Riverside County found him not guilty of murder because they determined that someone else committed the murder for which he had been wrongly convicted. The CDAA also failed to admit that Oscar Lee Morris was finally freed after serving 16 years in prison for a murder he did not commit, including 6 years on California ’s death row, and that he was wrongly convicted by an overzealous prosecutor who obtained a conviction by using the fabricated testimony of a jailhouse informant. The list goes on and includes many other innocent human beings who were wrongly imprisoned for years and years for crimes they didn’t commit. For example, Dwayne McKinney served 19 years in prison for a murder he didn’t commit. He was finally released when the identity of the true criminals was determined, but he may very well have been dead by that time had the prosecution got what it asked for at trial: 8 of the jurors at Mr. McKinney’s trial voted to give him the death penalty, but the commitment of the 4 other jurors led to him being sentenced to life without parole; otherwise, he would probably have been executed before the truth finally came out.
The simple truth is that the criminal justice system in California suffers from the same problems which have caused the wrongful conviction of innocent people elsewhere–and right here in California . The truth is that reforms are needed to insure that the innocent are not convicted and the real culprits are convicted.
The truth is also that even when a person who is guilty of murder is convicted of murder as he or she should be, the determination of whether or not he gets the death penalty is most often based on the race of the victim, the race of the defendant, the quality of his defense counsel, and the geographic location of the crime, rather than any sense of shared morality on whether he should live or die–which, in itself, is so inherently prone to different judgments by different people. Every study that has ever considered the question of the race of the victim in capital cases has concluded that minority defendants who have been convicted of killing a Caucasian victim are substantially more likely to receive the death penalty than any Caucasian defendant who has killed a minority victim. Both the California Supreme Court and the federal courts have reversed many California death sentences because the defense attorney was incompetent, but California has yet to establish any commission to determine that any lawyer is qualified to represent a defendant facing the death penalty. Further, California still fails to comply with the minimum standards for the appointment and qualification of counsel in capital cases required by the American Bar Association. And even a cursory glance at California ’s death row graphically demonstrates how the rate of defendants sentenced to death is extremely disproportionate from one county to another. Indeed, no defendant prosecuted for a capital crime in Shasta County was ever sentenced to life without parole instead of death until the middle of 2002.
The CDAA White Paper’s unwillingness to accept–or even acknowledge–these cold hard facts should not be surprising, given that it was not written by any independent organization or academic institution, but by the same prosecutors who seek the very executions of human beings they then try to justify in their White Paper. These are the same prosecutors who try to convince jurors to impose the death penalty many more times than jurors find is appropriate. We should recognize their position for what it is, and in the meantime, should strive to guarantee that the innocent are never sentenced to death, and that if anyone is sentenced to death, their fate cannot rest on the arbitrariness of race, the quality of the attorneys involved, or the geographic location where the crime occurred. Unless and until we can make that guarantee, we cannot ignore our responsibility to change the way the death penalty is imposed in California. March 26, 2003 CHIEF JUSTICE GEORGE WARNS STATE LAWMAKERS THAT BUDGET CUTS TO THE STATE COURT SYSTEM WILL RESULT IN REDUCTION OF ACCESS TO JUSTICE Chief Justice George Applauds Lawmakers for Supporting Key Reforms, But Notes Court Services Are Eroding San Francisco — Landmark reforms in the California courts have led to great progress in expanding access to court services, yet budget reductions threaten to undo major benefits provided to the public, Chief Justice Ronald M. George today (3/25/03) told a joint session of the California Legislature in his annual “State of the Judiciary” Address. “Our overall goal is to keep California’s courts open not just physically, but also effectively—especially for those who are least able to help themselves and who must rely upon the courts,” said Chief Justice George. “At the same time, we are striving to avoid placing the impact of the budget reductions primarily on the backs of our employees.” While the courts are doing their part to alleviate the state’s budgetary woes, the judicial branch “continues to look to our sister branches of government to ensure that the courts have the resources necessary to fulfill the obligations to the public imposed upon us under the federal and California constitutions,” the state’s top jurist said. The effect of budget reductions will “fall most harshly on families, children, and civil litigants,” the Chief Justice said. Cutbacks in services already made this fiscal year include:
Budget ProposalsThe Governor’s proposed fiscal year 2003–2004 budget includes increases in court fees and several measures to reduce costs within the judicial system, Chief Justice George noted. Among them are proposals that would give courts flexibility to implement electronic court reporting and to open bidding on courthouse security to all law enforcement agencies. The Judicial Council, the state’s policy-making body for state courts, has created task forces that are now meeting to reach consensus in each area on the best ways to achieve cost-savings, the Chief Justice reported. In addition, the Chief Justice stated that new efforts are underway to improve collection of fines, fees, and forfeitures—estimated to be more than $5 billion nationally. “We intend to continue to work closely with the counties and with court employees to see how we can maximize the benefits of increased collections for all levels of government,” the Chief Justice said. Landmark ReformsChief Justice George thanked state legislators for their support of three structural reforms that have resulted in a landmark transformation of the court system. The reforms are (1) state court funding; (2) trial court unification, and (3) passage of last year’s Trial Court Facilities Act, which shifts the ownership and management responsibility for California’s 451 courthouse facilities from the counties to the state.These “major reforms have been the key to our transformation to a more cohesive and accountable branch of government” the Chief Justice said. “The savings generated from trial court unification and state funding have resulted in unprecedented experimentation by local courts in programs designed to assist the public.” Some programs were honored at the recent California Judicial Administration Conference, a court leadership conference sponsored by the Judicial Council. Award-winning programs included a Public Law Center in Nevada County, a Juvenile Violence Court in Yolo County, and a collaborative educational program reaching 1,900 students in San Diego County. Read the Chief Justice’s “State of the Judiciary” Address at: State of The Judiciary March 19, 2003 ATTORNEY GENERAL LOCKYER AND CALIFORNIA DISTRICT ATTORNEYS RELEASE THEIR OWN DEATH PENALTY STUDY - Prosecutors' Perspective on California's Death Penalty (SACRAMENTO)
– The California District Attorneys Association (CDAA), Attorney General's
Office, Criminal Justice Legal Foundation (CJLF) and others today released
a comprehensive research study contradicting assertions that the death
penalty system is flawed in California.
March 19, 2002 ASSOCIATE JUSTICE ANTONIN SCALIA TO RECEIVE "FREE SPEECH" AWARD AND, AT SAME TIME, PARADOXICALLY DEMANDS MEDIA BAN FROM THE EVENT CLEVELAND - In what can only be described as a classic "Scalia paradox", Supreme Court Justice Antonin Scalia, who is scheduled to receive an award from the City Club of Cleveland for supporting free speech, agreed to appear and accept the award only in the event that the broadcast media were banned from recording (taping) the Wednesday (3/19/03) event. It appears that the City Club has historically taped speakers for later broadcast on public television. However, Justice Scalia insisted on banning television and radio coverage, the club said. Ironically, it turns out that the City Club is honoring Justice Scalia by giving him its Citadel of Free Speech Award. The Club's executive director, James Foster, was quoted by the AP as saying, "I might wish it were otherwise, but that was one of the criteria that he had for acceptance." The ban on broadcast media, "begs disbelief and seems to be in conflict with the award itself," C-SPAN vice president and executive producer Terry Murphy wrote in a letter last week to the City Club. "How free is speech if there are limits to its distribution?" It seems that the City Club selected Justice Scalia because he has "consistently, across the board, had opinions or led the charge in support of free speech," executive director Foster said. Cameras and recording devices are banned from the Supreme Court chamber, and Scalia prefers not to have camera coverage in other settings, said Kathleen Arberg, spokeswoman for the court. Scalia made the same demand on John Carroll University, where he spoke March 17th. He talked mostly about the constitutional protection of religions, but also said that government has room to scale back individual rights during wartime without violating the Constitution. "The Constitution just sets minimums," Scalia said. "Most of the rights that you enjoy go way beyond what the Constitution requires." Editor's Note: Without question, Justice Antonin Scalia will go down in American history as America's most "minimalist" Supreme Court Justice of all times, as well as one of the most inexperienced justices to ever sit on the U.S. Supreme Court. Next to Clarence Thomas, it's a true toss-up as to which justice is genuinely the dumbest to ever sit on the bench. Seriously, we're talking about Justices with IQ's in the low 70's...... March 18, 2003 ATTORNEY GENERAL LOCKYER ANNOUNCES THAT FOR 2002, SALES OF HANDGUNS WERE UP SLIGHTLY AND THE SALES OF RIFLES WERE DOWN SLIGHTLY (SACRAMENTO)
– Attorney General Bill Lockyer today announced sales of firearms during
2002 dropped slightly to 352,425 from 354,202 in the previous year. Sales
of handguns in 2002 inched higher than 2001's thirty-year low, while the
sale of rifles and shotguns dropped slightly. March 13, 2003 NEW CHARGES LEVELED AT SFPD, THIS TIME BY SAN FRANCISCO'S PUBLIC DEFENDER JEFF ADACHI, CLAIMING SFPD SYSTEMATICALLY WITHHELD POLICE DISCIPLINARY FILES FROM THE COURTS AND FROM DEFENSE COUNSEL At the conclusion of last evening's SF Police Commission meeting, the San Francisco Chronicle reported that SF Public Defender Jeff Adachi requested that the commission begin an immediate investigation into charges that the SFPD systematically withheld police disciplinary files from the Court and from defense counsel. In what is commonly referred to as a Pitchess motion (Pitchess v. Superior Court (1974) 11 C3d 531), defense attorneys seek out discovery of arresting officer's prior police disciplinary files for the purpose of developing impeachment and/or exculpatory evidence for their clients. In this instance, two former members of the SFPD's legal team contend that the SFPD kept disciplinary records on officers in different locations, with only one file being turned over to defense lawyers in response to defendants' Pitchess motions. This disclosure was made as a result of the on-going investigation of SFPD officer Alex Fagan, Jr., where there was apparently missing information from his central SFPD disciplinary file. It seems that the SFPD routinely kept some disciplinary files at local precincts, rather than forwarding the information on to central SFPD. Hence, it is alleged that specific disciplinary information was never produced in response to literally hundreds of Pitchess motions. Adachi is also seeking to have the SF Criminal Courts investigate the matter, as failure to fully comply with a court order may, under certain circumstances, be deemed an act of contempt of court. Adachi reportedly stated that this systematic withholding on the part of the SFPD will affect numerous on-going cases, and will also affect those defendants who have been convicted, but who were denied full disclosure of an officer's disciplinary file after having made a Pitchess motion. March 11, 2003 SAN FRANCISCO DISTRICT ATTORNEY TERENCE HALLINAN DOES a 180 AND DISMISSES OBSTRUCTION CHARGES AGAINST S.F. pOLICE CHIEF EARL SANDERS AND ASSISTANT CHIEF OF POLICE ALEX FAGAN, SR. In a San Francisco Superior Court on Tuesday, just one week after unveiling a grand jury indictment against 10 SFPD officers, including the upper brass, San Francisco District Attorney Terence Hallinan did a classic 180 degree move and sought to "strike" the names of Chief Earl Sanders and Assistant Chief Alex Fagan, Sr., from the obstruction count in the S.F. Grand Jury's earlier indictment of S.F. Police Chief Earl Sanders, Assistant Chief of Police Alex Fagan, Sr., and eight other SFPD Officers (People v. Fagan, et al.). There was a little confusion in the courtroom after the D.A. moved to strike the two names, as defense counsel inquired whether the D.A. was, in fact, dismissing the charges against Sanders and Fagan, Sr. Finally, Hallinan agreed that it was a PC §1385 dismissal and the court granted the D.A.'s motion in that regard. Previously, the indictment was roundly criticized by virtually every defense attorney appearing in court. Now, the case will proceed against three SFPD officers who got into the initial November 20th fight, and five remaining SFPD officers accused of trying to cover up the matter. As previously reported, the grand jury's indictment stems from an off-duty fight between three SFPD officers (Alex Fagan, Jr., David Lee and Matthew Tonsing) and two individuals (Jade Santoro and Adam Snyder) on November 20, 2002 outside of San Francisco's Blue Light Bar. According to the S.F. Chronicle, the SFPD arrived and took the officers away before Snyder and Santoro could identify them. Alex Fagan Jr., Tonsing and Lee also were allegedly allowed to change their clothes and drink lots of water before they were tested for alcohol, more than four hours later. The indictment charges officer Alex Fagan, Jr. and the other two SFPD officers with felony assault and battery (PC §243(d)) on Santoro and Adams, but goes on to charge the SFPD upper brass, now excluding SFPD Chief Sanders and officer Fagan's father, Alex Fagan, Sr., SFPD's Assistant Chief of Police, with obstructing justice in terms of evidently impeding the ensuing SFPD investigation of that particular November, 2002 fight. Also, Officer Alex Fagan, Jr. currently has pending two other civil rights law suits stemming from allegations that he allegedly falsely arrested and beat up certain citizens - Kevin Jordan in one instance (SFSC Case No. CGC-03-417619) and James Washburn, Jr., in another separate instance (SFSC Case No. CGC-03-416708). In those two civil suits, it is alleged that officer Alex Fagan, Jr., had been placed on probation by the SFPD, but still allowed to be a paid SFPD officer. Per the S.F. Chronicle, Alex Fagan , Jr. had at least 16 violent encounters with suspects in a 13-month period, sending six of them to the hospital, including Jordan and Washburn. Alex Fagan , Jr. was also accused of being insubordinate to his superiors. But other SFPD brass evidently took little action other than to counsel Fagan, Jr., about his conduct and order anger management training - a course he apparently never took. Thus, officer Alex Fagan, Jr., continues to be at the center of causing an awful lot of controversy, both within the SFPD ranks, as well as within the S.F. community at large. March 4, 2003 SAN FRANCISCO DISTRICT ATTORNEY TERENCE HALLINAN UNVEILS GRAND JURY INDICTMENT AGAINST S.F. pOLICE CHIEF EARL SANDERS AND NINE OTHER SFPD OFFICERS In San Francisco Superior Court Judge Kay Tsenin's courtroom on Tuesday, San Francisco District Attorney Terence Hallinan unveiled the S.F. Grand Jury's indictment of S.F. Police Chief Earl Sanders, Assistant Chief of Police Alex Fagan, Sr., and eight other SFPD Officers (People v. Fagan, et al.). The indictment was roundly criticized by virtually every defense attorney appearing in court, many of whom seemingly asked, "Is that it?" The indictment stems from an off-duty fight between three SFPD officers (Alex Fagan, Jr., David Lee and Matthew Tonsing) and two individuals (Jade Santoro and Adam Snyder) on November 20, 2002 outside of San Francisco's Blue Light Bar. According to the S.F. Chronicle, the SFPD arrived and took the officers away before Snyder and Santoro could identify them. Alex Fagan Jr., Tonsing and Lee also were allegedly allowed to change their clothes and drink lots of water before they were tested for alcohol, more than four hours later. The indictment charges officer Alex Fagan, Jr. and the other two SFPD officers with felony assault and battery (PC §243(d)) on Santoro and Adams, but goes on to charge the SFPD upper brass, including SFPD officer Fagan's father, Alex Fagan, Sr., SFPD's Assistant Chief of Police, with obstructing justice in terms of evidently impeding the ensuing SFPD investigation of that particular November, 2002 fight. Officer Alex Fagan, Jr. also currently has pending two other civil rights law suits stemming from allegations that he allegedly falsely arrested and beat up certain citizens - Kevin Jordan in one instance (SFSC Case No. CGC-03-417619) and James Washburn, Jr., in another separate instance (SFSC Case No. CGC-03-416708). In those two civil suits, it is alleged that officer Alex Fagan, Jr., had been placed on probation by the SFPD, but still allowed to be a paid SFPD officer. Per the S.F. Chronicle, Alex Fagan , Jr. had at least 16 violent encounters with suspects in a 13-month period, sending six of them to the hospital, including Jordan and Washburn. But other SFPD brass evidently took little action other than to counsel Fagan, Jr., about his conduct and order anger management training - a course he apparently never took. Thus, officer Alex Fagan, Jr., seems to be at the center of causing an awful lot of controversy, both within the SFPD ranks, as well as within the S.F. community at large. February 26, 2003 THE U.S. SUPREME COURT SENDS BACK TO THE LOWER COURT tHE CITY OF CHICAGO'S FOIA GUN CASE FOR FURTHER REVIEW IN LIGHT OF CONGRESSIONAL ACTION CUTTING OFF FUNDING FOR THE RELEASE OF GUN DEALER AND GUN OWNER INFORMATION IN THE ATF'S DATABASE On February 26th the U.S. Supreme Court ordered that the judgment in the case of Department of Justice v. City of Chicago (No. 02-322), be vacated and remanded to the U.S. District Court of Appeals for consideration of what effect, if any, Congress’ action in deleting funding for the ATF to provide parties such as the City of Chicago with gun records held by the Federal government (Div. J., Tit. 6, §644, of the Consolidated Appropriations Resolution, H. J. Consol. Res. 2, 108th Cong., 1st Sess. (2003).) As a result, the previously scheduled oral arguments were likewise cancelled by the Court. If the case had of proceeded to oral argument, the Supreme Court would have been compelled to decide whether the Federal government had to make public the details of a weapons database it possesses, including providing the names of gun shops and gun owners whose weapons were used in crimes. The case was brought under the Freedom of Information Act (FOIA), which federal law allows the public to obtain certain government records that officials would not otherwise publicly release. At issue is
access to information by the City of Chicago to some 200,000 firearm traces
a year, in which police, after confiscating a weapon in a crime, track
down who made it, sold it and bought it. The ATF releases some information
now, after a time lapse, but erases items such as the name of the seller
and the buyer. Editor’s Note: See, U.S. v. Bean (2002) 537 U.S. ___, a case recently decided by the Supreme Court wherein it held that Congress’ action in precluding the ATF from spending money in reviewing rehabilitation applications from convicted felons to again own or possess a firearm meant that the ATF could not make an administrative decision one way or the other on the issue and, hence, an applicant could not thereafter seek judicial review of the ATF’s non-action. January 9, 2003 THE NEW YEAR BRINGS WITH IT A NEW SET OF LAWS FOR CALIFORNIA - RANGING FROM CRIMINAL IDENTIFICATION THROUGH dNA SAMPLE COLLECTION TO CONTINUING WIRETAP AUTHORIZATION BY THE STATE In the new millennium, waging "war" against terrorism, crime and violence, have become extremely popular themes for virtually every government bureaucrat, including California's State legislators. The beginning of the new year - 2003 - is witness to this continuing popularity, as it initiates a whole host of new laws in California, the majority of which are aimed at strengthening the State government's hand in waging its numerous "wars" against evil. These laws run the gamut from permitting the government to use "reasonable force" to collect DNA samples from convicted felons, to permitting the government to initiate asset forfeiture proceedings against suspected gang members for a single alleged incident of a gang-related crime, to permitting the government to seize and impound the vehicle of a person accused of "reckless" driving. Read the Legislative Summary . January 6, 2003 CALIFORNIA SUPREME COURT RULES THAT "RAPE" CAN BE COMMITTED EVEN AFTER CONSENT FOR INITIAL INTERCOURSE IS GIVEN (POST-PENETRATION RAPE) In In Re John Z (2003) (1/6/03; 03 C.D.O.S. 129; ___ C4th ___) in a 6-1 decision, the California Supreme Court ruled that forcible rape (PC §261(a)(2)) was committed when the woman who, in fact, had consented to the initial penetration, evidently withdrew her consent after intercourse had commenced ("no reasonable person in defendant's position would have believed that [the victim] continued to consent to the act") and, thus, the intercourse was thereafter purportedly continued against her will. In the process, the Court also disapproved the holding in People v. Vela (1985) 172 CA3d 237, which case held to the contrary. Presumably, in a post-penetration rape case, the prosecution still has the burden of showing, beyond a reasonable doubt, that the victim clearly communicated withdrawal of consent and the defendant exercised some degree of force to continue. Moreover, a defendant’s reasonable and good faith mistake of fact regarding a person’s consent to sexual intercourse is a defense to rape. (People v. Williams (1992) 4 C4th 354, 360; People v. Mayberry (1975) 15 C3d 143, 154-155.) To be acquitted, a defendant need only raise a reasonable doubt as to his reasonable and honest belief in consent. Thus, to convict in such a case, the government must prove the absence of such a belief beyond a reasonable doubt. Editor's Note: This is another Justice Ming opinion which, unfortunately, but not unexpectedly, simply fails to even address the issue of the victim's communication of consent withdrawal, or the issue of the defendant's reasonable or good faith mistake of fact regarding the issue of the victim's consent. January 2, 2003 WITH ITS IN RE ROBERTS RULING, THE CALIFORNIA SUPREME COURT STARTS OFF NEW YEAR WITH A BIG THUD In
re Roberts (2003) (1/2/03; 03 C.D.O.S. 47; ___ C4th
___) the California Supreme Court has started off the new year with a
big thud, giving a thumbs down to convicted killer Larry Roberts in his
bid to overturn his conviction for a 1980 jailhouse murder. In August,
1999 the California Supreme Court ordered an evidentiary hearing on Roberts
habeas corpus petition. The appointed Referee to conduct the evidentiary
hearing, Solano County Superior Court Judge Franklin R. Taft, found that
three prosecution witnesses testified falsely at trial, but that the prosecutor,
S.F. Deputy Attorney General Charles Kirk (aka "Mad Dog" around the courts),
did not attempt to induce the false testimony. "A judgment of conviction
based on testimony known by representatives of the state to be perjured
deprives the defendant of due process of law [citations] and may be attacked
on habeas corpus [citations]. In making such an attack, however, petitioner
must establish by a preponderance of the evidence that perjured testimony
was adduced at his trial, that representatives of the state knew that
it was perjured [citations], and that such testimony may have affected
the outcome of the trial [citations]." (In re Imbler (1963) 60
Cal.2d 554, 560.) While not adopting all of the findings of the appointed
Referee, the Court adopted those findings that held the petitioner failed
to carry his burden of proof. A habeas writ may also issue if a conviction
was based on false testimony that was substantially material and there
is a reasonable probability that the result would have been different
if it had not been introduced. This ground does not require that
the prosecution know the testimony was false. (Penal Code, §1473(b)(1);
In re Sassounian (1995) 9 Cal.4th 535, 546.) In order to make
the second finding (that the testimony at trial was not false), the court
disregarded most of the Referee's findings. "Despite the findings of
the referee, petitioner is not entitled to relief based upon the claim
that his conviction is based upon false testimony." December 24, 2002 PRESIDENT GEORGE W. BUSH PARDONS SEVEN INDIVIDUALS, aLL OF WHOM HAD PREVIOUSLY COMMITTED RELATIVELY MINOR CRIMES
In a first for this President, on Friday, December 20th, but not announced until Monday, the 23rd, George W. Bush pardoned seven individuals, all of whom had previously committed relatively minor crimes. Included in the list was one Born-Again Christian, Olgen Williams, an individual who was able to shake his former drug habit, turn his life around, and later become the executive director of Christamore House, an Indianapolis, Indiana community center. Also making the President's list this year was a Tennessee man, Kenneth Copley of Lyles, Tennessee, who had been convicted of making moonshine (selling untaxed whisky). Whitehouse spokesperson Ashley Snee stated, "What all these cases have in common is that each pardon recipient committed a relatively minor offense many years ago, completed his prison sentence or probation and paid any fine, and has gone on to live an exemplary life and to be a positive force in his community." Others on the Dean's List include: Harlan Paul Dobas of Portland, Oregon. Dobas was sentenced to three months in jail in 1966 for conspiracy involving the sale of grain from his employer; and Walter F. Schuerer of Amana, Iowa. Schuerer was convicted in 1989 of making a false statement to the Social Security Administration regarding his employment and fined $15,000; and Paul Herman Wieser of Tacoma, Washington. Wieser was convicted in 1972 of stealing $38,000 worth of copper wire and sentenced to 18 months probation; and Stephen James Jackson of Picayune, Mississippi. Jackson was convicted of altering a car odometer in 1993 and sentenced to three years probation and fined $500.00; and Douglas Harley Rogers of Brookfield, Wisconsin. Rogers, a Jehovah's Witness, was convicted in 1957 for failing to report for military induction and sentenced to two years in jail. December 18, 2002 ATTORNEY GENERAL ASHCROFT ANNOUNCED THAT TEXAS-BASED COMPUTER COMPANY, INFOCOM, AND HAMAS LEADER INDICTED ON CHARGES OF VIOLATING U.S. BAN ON FINANCIAL DEALINGS WITH TERRORISTS
December 11, 2002 DIGITAL MILLENNIUM COPYRIGHT ACT CASE TAKING UNUSUAL tURNS IN COURTROOM BATTLE Already in the very first criminal trial under the Digital Millennium Copyright Act (DMCA), the case is seeing unusual developments. In this instance, after the prosecution used a videotaped deposition of Dmitry Sklyarov and then proceeded to rest its case, the defense called Mr. Sklyarov personally to the witness stand. In sworn testimony, Mr. Sklyarov, who had earlier been granted immunity in exchange for his testimony for the government, stated he didn’t care about U.S. Copyright law, as he performed his work in Russia, a country which allows persons to reverse engineer software for compatibility purposes. The sole defendant in the case, Mr. Sklyarov’s employer, Elcomsoft Co. Ltd., faces a possible fine of up to $2 million if convicted of violating the U.S. law. The case is being tried before a San Jose, CA jury, with U.S. District Judge Ronald Whyte presiding. As previously reported, the principal issue in the case is whether the copyright infringement is a “strict liability” crime, where the government need not prove any intent on the part of Elcomsoft. The defense maintains that the government prosecutors must prove that Elcomsoft intended to commit a crime. Hence, the money at stake is viewed as trivial compared to the precedent-setting effect that the case will have on future prosecutions under the DMCA. November 18, 2002 FIRST-EVER RULING BY FEDERAL APPELLATE “SPY COURT” REVERSES COURT-IMPOSED WIRETAP RESTRICTIONS
November
13, 2002 Yesterday, November 12, 2002, the Supreme Court announced it would intervene in a dispute over free speech on the Internet that could affect the online choices available to millions of Americans who depend on public libraries for access to the World Wide Web. The court said it would decide whether the Children's Internet Protection Act (CIPA), a federal law that requires libraries that receive federal Internet subsidies to use anti-pornography filtering software, violates the Constitution. For a Supreme Court that has generally taken an expansive view of the First Amendment, this will be the third review in the last half-decade of an attempt by Congress to regulate sexually explicit material in cyberspace. The court struck down one previous law on First Amendment grounds and issued a mixed ruling on a second.
Senator
Leahy, the Chair of the Senate’s Judiciary Committee, fired back
at the President regarding the White House plan for the Senate to consider
judicial nominees. Leahy is quoted as saying, “I regret that instead
of accepting our many previous invitations to work with the Senate and
increase the level of consultation and cooperation to help fill judicial
vacancies, the White House repeatedly has chosen to continue down its
path of trying to politicize the process. The timing and handling of this
unilateral White House proposal, a week before the elections, and after
ignoring all previous invitations to consult with the Senate, cannot help
but raise questions about its purpose.” Read
the President’s full Press Release and Read
Senator Leahy’s full Press Release.
SYMPOSIUM ON DOMESTIC VIOLENCE
THE TWO ARRESTED IN THE MARYLAND SNIPER CASE
FOR A NATIONAL BALLISTICS SYSTEM
OF WELFARE MOTHERS – IS CALIFORNIA NEXT?
ABA’S REPORT ON TREATMENT OF ENEMY COMBATANTS
|