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crime to record a chat room conversation? and Tyco jury Wendy Leibowitz I always thought a hung jury helped the defense because the prosecution had to lay out all its cards; there is less media interest in the re-trial; and all you need to do is get to one more juror before the judge gives up. I can't BELIEVE (from what I read--hmm--could the press accounts be wrong?) that anyone could avoid convicting these men, who looted Tyco of $600 million dollars, but the compassion and skepticism of American jurors is boundless, apparently. Just to waddle in on another subject while dodging April showers, a tax deadline, and Ariel Sharon's visit to DC tomorrow: I was stuck by this item about "recording" a chat room conversation. On the one hand, cutting and pasting the conversation IS similar to recording a phone call. On the other hand, reasonable people could point to differences--there is less of an expectation among informed people that one's electronic conversations will vanish when one logs off, as a phone call does. The full article is here. http://www.securityfocus.com/printable/columnists/233 An excerpt, from Declan McCullogh's politech bot: Chat, Copy, Paste, Prison By Mark Rasch Apr 12 2004 11:19AM PT You are engaged in a chat session with some friends and colleagues, when one of them makes a witty remark or imparts a pithy bit of information. You hit CTRL-A and select the conversation, then copy it to a document that you save. Under a little-noticed decision in a New Hampshire Superior Court in late February, these actions may just land you in jail. New Hampshire is "two-party consent state" -- one of those jurisdictions that requires all parties to a conversation to consent before the conversation can be intercepted or recorded. The decision is the first of its kind to apply that standard to online chats, and the ruling is clearly supported by the text of the law. But it marks a blow to an investigative technique that has been routinely used by law enforcement, employers, ISPs and others. On August 22, 2002, as part of his official duties, Detective Frank Warchol of the Portsmouth, New Hampshire Police Department signed on to a chat room on America Online, posing as a fourteen-year-old girl. We all know what happened next. A man named Roland MacMillan also signed on to the chat room, and solicited what he believed to be the 14-year-old for sexual acts. Shortly thereafter Mr. MacMillan was arrested. Detective Warchol -- in keeping with good evidentiary procedure and knowing that the record of the conversation would be important to preserve -- used screen capture software to essentially make a "video" of the online chat room conversation. The software created a record of the chat session that did not previously exist. The New Hampshire detective then transferred this "recording" to another computer for both preservation and analysis by essentially copying and pasting. It was this capture and recording which was used against MacMillan in court -- or, at least, was almost used. Before trial, Mr. MacMillan's attorney filed a motion in limine to suppress the results of the recorded conversation as a violation of the New Hampshire wiretap statute. You see, New Hampshire law makes it illegal to engage in "the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of an electronic, mechanical, or other device" without consent. MacMillan's attorney argued that the making of the recording violated this statute. 1:37 PM | | link to this post | what's new in Law Reporting | go to JURIST
I Hate to Think Jack Ayer That Antonin Scalia is the only thing to draw me out of my hole, but does anyone know of any legal authority for this? The NYT and the LAT both scare up lawyers who question the legality of the move, the LAT's fuller and more emphatic. The WSJ goes with a wire report. 12:50 PM | | link to this post | what's new in Law Reporting | go to JURIST
Tyco Jury Jack Ayer Jack Coffee from Columbia made some provocative sense last night on CNN (can't seem to find a good link) re the Tyco jury: if I understood him right, he was making the point that a hung jury usually works to the advantage of the defense, because it wears the prosecution down. In Tyco, however, the defense will get a chance to see how narrowly they dodged the bullet (only one holdout; 12 days of deliberation). Meanwhile the prosecution will have a chance to buff up and streamline what was by most accounts a shambolic presentation. Coffee smells plea bargain, and even mentioned the number "ten years," which astonished his interviewer -- but then he said hey, I'm talkin' state time, with time off it will be more like three or four. 3:02 PM | | link to this post | what's new in Law Reporting | go to JURIST It's 10 O'clock Jack Ayer Do you know what your government is up to tonight? Perhaps this. Or this. My neanderthal friend Roy says the latter is just a lot of liberal government meddling. As to the former, he's still trying to figure out the logistics (a detachable steering wheel?). [PS--Or this. Come to think of it, Roy may have a point about capital punishment. Texans don't believe anything is a crime unless it carries the death penalty]. [PPS--Or this. My heavens, I seem to have found a new career here.] 2:51 PM | | link to this post | what's new in Law Reporting | go to JURIST The Man in Black Jack Ayer Authorities described the non-abductor in the Wisconsin non-abduction as wearing "black sweatshirt, jeans, and black hat." My friend Joel says his papa told him: "when the victim says the perp was dressed all in black and driving a black car that it's not to be believed." And we know what to think of the lady in red. Or the girl with the black velvet band (cute audio on that last). 2:35 PM | | link to this post | what's new in Law Reporting | go to JURIST
What It Is With Scalia Jack Ayer New Republic has a wonderful piece about what it is with Scalia -- and no, it is not the ducks. It's a matter of character, and NR could hardly have put it better. Consoling to know he may have blown his chance to be Chief Justice. [PS: I have no idea why that botched partial entry keeps appearing on our blog -- have tried half a dozen times to kill it out, so far without success.--jda [ PPS: As of Saturday morning it seems to have vanished.--jda] 5:51 PM | | link to this post | what's new in Law Reporting | go to JURIST
Never Saw Life? Jack Ayer Over my right shoulder, President Bush is reading his statement on his signing of "Laci and Connor's Law," the fetal-protection act. I wasn't paying close attention, and I'm too cheap to pay for the video feed, but I think I just heard him refer to Connor as one "who never saw life." But if he never saw life, then why is it a taking of life to destroy him? Update: the text at the White House website says he said "never saw light" (emphasis added). Well, makes more sense that way. 3:02 PM | | link to this post | what's new in Law Reporting | go to JURIST
What Is It With Juries? Jack Ayer I've actually been and gone on two separate trips since I made that crack about calling me when the Tyco jury came back. This last time I was on a farm Amish country -- four days without CNN--so I didn't know anything about the Lone Ranger Granny who gave the high sign to the defense. Says "mistrial" to me but lat that pass -- what I really wonder is: what's this thing about juries? Every hot case appears to generate jury news these days--or at least (aside from Tyco) Martha Stewart and Scott Peterson. Is it happenstance? Or are we paying more attention to juries than we used to? I pine for a simpler time when the jury's job was simply to declare that "we find the defendant incredibly guilty." 11:36 PM | | link to this post | what's new in Law Reporting | go to JURIST Did There Come a Time ... Jack Ayer Wendy makes me remember an old New Yorker cartoon where he says to she (or maybe it was vice versa) "Did there come a time when you thought you could love a lawyer?" I started law school at the age of 28, a night student, married and with a child (my second kid was born the night of my criminal law exam)--in a cohort of students who were demographically pretty much the same. We used to make jokes about how LS had changed our home life. "Let's have chicken for dinner tonight"--"No! I'll give you six reasons why we can't have chicken!" I also remember the 70s, when all our women students arrived at the age of 28, married and with children, but divorced by the time they got through--it was like standing at Picadilly Circus and saying"those two cars are going to crash," and they do. Still, one thing I have always wondered is in how many cases it is LS that saves a marriage--or at least defers the inevitable -- by preventing all that potential interaction time. 11:17 PM | | link to this post | what's new in Law Reporting | go to JURIST the social lives of lawyers Wendy Leibowitz We interrupt the musings on important issues of the day to link to a story in the Washington Post today on the lawyers' singles scene in Washington, entitled "Lawyers ISO Love." Law school does NOT develop one's social skills, but one's adversarial argumentative skills, so one leaves looking for an argument and then wonders why attractive, non-judgmental people have trouble sustaining a relationship or even a conversation with you. Law school and legal journalism are also generally obsessed with litigation, so the reporter can write with awe that there are some lawyers that aren't litigators: "Even those who don't meet Mr. or Ms. Right can come away from a FriendSwap party with a renewed appreciation for the myriad ways in which it's possible to be a lawyer. At Maxim, there are government lawyers and corporate lawyers, law clerks and lawyers-to-be. Fully 30 percent of FriendSwap is made up of lawyers. Of course, there are also politicians -- two FriendSwap singles have run for Congress -- as well as people who work in politics, some of whom happen to be lawyers. There are government wonks and nonprofit people. There are PR folks and journalists, a number of whom spend their professional lives talking to politicians or lawyers. Which is not to say that FriendSwap is homogeneous. After all, some of the singles here got their law degrees at Harvard, while others got them at the University of Virginia, and still others at George Washington University. Plus, there are four gay men. Three of them are lawyers. " It's a big world out there. Legal journalists cover such a tiny fraction of it. 12:51 PM | | link to this post | what's new in Law Reporting | go to JURIST
Kobe Again (If You Have to Read Just One) Jack Ayer Watching CNN tonight you could get the impression that almost as important as the Clarke testimony is the story of Kobe and the rape shield law. It's tempting to indulge in a little celebrity mockery here, but I will try to resist the urge. I've thought for a long time that the issues underlying rape-shield laws put the court (and the legislature) in one of the toughest balancing acts that litigation can present. Some of the most intelligent coverage I've seen has been in (surprisingly?) the Christian Science Monitor. Here's the latest entry. If you have to read just one story on the topic, this would be a good candidate, but here is an earlier entry that job equally well. 11:09 PM | | link to this post | what's new in Law Reporting | go to JURIST For Richard Stans Jack Ayer I don't know, maybe my general air of corruption and cynicism is traceable to the fact that I grew up in an age when you didn't have to say "under God" as part of the pledge of allegience. Or maybe it was enhanced by the air of xenophobic hoopla that surrounded the adoption of the "under God" clause back in the McCarthy era. Either way, I admit I have little or nothing to add to the commenetary about the case as its makes its way into the Supreme Court. I therefore direct attention to one of the more interesting new blogs to come to my attention lately--that would be "Mirror of Justice," billed as "a blog dedicated to the development of Catholic legal theory." MOJ's entry on The Pledge confesses: "I am afraid I have not yet been able to muster much interest." He (?) adds: "I'm not sure why," but then he goes on and suggests a reason. "I believe that the Court will almost certainly conclude (assuming that it reaches the merits of the Religion Clause question) that the Ninth Circuit got it 'wrong,' and that neither the Pledge itself, nor its recitation in public schools, violates the First Amendment's 'Establishment Clause.' At the same time, I suspect that the reasoning provided in support for this result will be hard to take seriously. 'This is ceremonial deism, not an "establishment of religion,"' the Court will probably say. 'Even with the words "under God," the Pledge is a patriotic, and not a religious affirmation. The term "under God" no longer has -- if it ever really did -- any religious content or meaning.'" This strikes me as right, and refreshing. I've always thought that the best argument for keeping religion out of public life is that religion is too important for public life--they'll only screw it up. Indeed, MOJ presses the point further: "What would it mean for us to take such a proclamation seriously, I wonder? As I expect my friend, Fr. Michael Baxter of Notre Dame, would say, it's not far from an aspirational statement, i.e., 'we aspire to be one Nation, under God,' with all the obligations and burdens such aspirations would entail, to an idolatrous one, i.e., 'we are God's Nation, and isn't God lucky to have us?'" 1:23 PM | | link to this post | what's new in Law Reporting | go to JURIST
China Needs More Lawyers Jack Ayer --or so we learn from The People's Daily, reporting on remarks from Zhang Fusen, minister of Justice (and thanks again to the ever-vigilant Howard Bashman). There are so many ways to go with this story, it's hard to know where to begin. --The good folks at People's Daily report that there are now 102,000 "certified lawyers" in a population of 1.3 billion, which pencils out to about one for every 12,745 people. I'm a little shaky on the relevant American data, but I remember working as an infant newspaper reporter in a County seat town in Ohio 45 years ago, population 12,000 (the whole County had about 24,000). We had about a dozen lawyers, mostly clustered in around the old neo-Warren G. Harding courthouse, and it didn't seem like all that many. --And speaking of the 50s, how many remember the great rage to "export American law" that sucked up so much wealth from the Ford Foundation the Fulbright Exchange program, and heaven knows what other sources of benefaction? We wrote constitutions, drafted codes, trained judges -- the late Myres McDougal sent out battalions of acolytes to form the infrastructure of the former colonies. These days, it makes me think of Mark Twain, talking about his uncle the missionary -- "He went to preach the good news to the savages -- and they et 'im." --But deeper: I remember Joseph Needham's great treatise, "Science and Civilization in China: it ran to many volumes, but a fair chunk of one volume was devoted to the question: why has China, with such a proud tradition and ancient civilization, in recent centuries fallen so far behind? Needham's answer: the absence of a tradition of lawfulness, as we might understand it in the west. --So we were selling, and they weren't buying--and now here they are, all knocking at our door. I speak from experience: I sat on the admissions committee for our "overseas LLM" program a couple of years back. We're a small program; we are (or were) new; we hadn't done a lot to advertise. But it was dazzling th see the quality of applicants we were getting eager. to make their connections in the US, and then go back home and change those one-in-12,745 odds. 11:43 PM | | link to this post | what's new in Law Reporting | go to JURIST How Is It That Jack Ayer South Carolinians cannot display a license plate that says "Choose Life," while those individualists in New Hampshire have to display one that says "Live Free or Die"? And in Ohio, "Most Boring State in the Union"? (All true. Except the part about Ohio) (and thanks again, Elizabeth). [Bankruptcy angle: my friend Rich was second chair on the bankruptcy of Public Service Company of New Hampshire. He says the real mottol is "Live For Free or Die".] 3:38 PM | | link to this post | what's new in Law Reporting | go to JURIST And Here I Thought it was Arkansas Jack Ayer One thing any lawyer will tell you about that defamation suit you want to bring -- all you do is call attention to the original offense. Somehow, this message never got through to the governor of West Virginia, who does not like the suggestion that his constituents are, well, inbred. This one will be all over the blogosphere before the owl hoots in the holler. Like here, and here. And here. And here. And ... oh, you get the idea. If you really want more, go to Feedster and search for Governor West Virginia. 2:18 PM | | link to this post | what's new in Law Reporting | go to JURIST Media Access to Trials Jack Ayer LA Times has a nice temperate piece on judges who take steps to try to limit media access to trials. It's fair and balanced, almost to the point of boring: makes the "freedom of information" case in a straightfoward manner without any air of media special pleading. Nice job, but not as jazzy as a triple beheading in a pizza parlor. 1:43 AM | | link to this post | what's new in Law Reporting | go to JURIST Kelley, The Sequel: No More Mr. Nice Guy Jack Ayer Pardon, that was done for literary effect only. If you believe John Gorenfeld at Salon, Jack Kelley was never a nice guy -- rather, says Gorenfeld, he "trafficked in particularly explosive stereotypes" -- and, more awkward, his readers believed them. 1:23 AM | | link to this post | what's new in Law Reporting | go to JURIST
Tell Us Your Name Jack Ayer We commented earlier on Dudley Hilbel, the guy who didn't want to give his name to police. Following argument in the Surpeme Court, Stephen Henderson of Knight Ridder has an excellent analysis here. OH, and here's Dahlia (also instructive). 8:03 PM | | link to this post | what's new in Law Reporting | go to JURIST Say Again? Jack Ayer Most interesting and instructive re Jack Kelley, Wendy (though I more and more inclined to wonder why his bosses were asleep at the switch). But did you notice that Editor and Publisher writes: "... a Pulitzer Prize, the most prestigious award in journalism." Uh, does E&P really need to tell its readers that? [fn. re asleep at the switch: back at E&P, John Hanchette has a few pointed words: "USA Today editors should not emerge unscathed in all this."] 4:21 PM | | link to this post | what's new in Law Reporting | go to JURIST catching the lies Wendy Leibowitz First, I want to thank Jack for keeping up this blog while I have been drowning in real estate news (face it, that's what a lot of people are talking about nowadays) and Middle Eastern horrors (that's what a lot of people are trying not to talk about nowadays, especially on the presidential campaign trail). But Jack Kelley's exposure as a serial fabricator and then Nixonian cover-up artist has shaken me back to this blog. When USA Today started, it was a weak joke (much as CNN was). But now it is a respected paper, which I read on the road, in large part because it's so readily available and in part because it's a good quick read. I think and hope that the paper will inaugurate a fact-checking department and ombundsman in the wake of this. Some reporters can also double as fact-checkers. It's doubtful people will sue USA Today because of this (if you make up sources, as Stephen Glass did at the New Republic, the invented people rarely complain, let alone file suit) but I assume that newspapers' lawyers somewhere are waking up to their responsibility as protectors of their clients' reputation. Here's Editor & Publisher's write up of the precise details that he fabricated. Excerpt: For one of his stories in 2000, the newspaper said, Kelley used a snapshot he took of a Cuban hotel worker to authenticate a tale he made up about a woman who died fleeing Cuba by boat. The woman in the photo never fled by boat, and a USA Today reporter located her alive this month, the newspaper said. Kelley, 43, quit the newspaper in January after admitting he conspired with a translator to mislead editors looking into the veracity of his reporting. Kelly said he'd never fabricated or plagiarized. "I feel like I'm being set up," he told editors at the newspaper on Thursday. [THIS IS SIMILAR TO WHAT DC MAYOR MARION BARRY SAID WHEN HE WAS CAUGHT WITH A CRACK PIPE--WENDY]. Kelley spent his entire 21-year career at USA Today and was five times nominated for a Pulitzer Prize, the most prestigious award in journalism. For one of the stories that helped make him a Pulitzer Prize finalist in 2001, Kelley wrote that he was an eyewitness to a suicide bombing. But the investigation showed that the man Kelley described could not have been the bomber, USA Today said. The newspaper also said "the evidence strongly contradicted" other published accounts by Kelley: that he spent the night with Egyptian terrorists in 1997; met a vigilante Jewish settler named Avi Shapiro in 2001; watched a Pakistani student unfold a picture of the Sears Tower and say, "This one is mine," in 2001; interviewed the daughter of an Iraqi general in 2003; or went on a high-speed hunt for Osama bin Laden in 2003. Hotel, phone or other records contradicted Kelley's explanations of how he reported stories from Egypt, Russia, Chechnya, Kosovo, Yugoslavia, Cuba and Pakistan, the newspaper said. [end excerpt] 2:56 PM | | link to this post | what's new in Law Reporting | go to JURIST Comments by Haloscan |
