Tag Archives: criminal

Court orders reporter to testify in leak case re: Sterling

The Fourth Circuit Court of Appeals ruled in a 188-page decision that there is no journalist protection of sources.  The decision can be viewed here.

In this case, ex-CIA officer Sterling worked for the CIA from 1993 to Jan. 2002.  During his tenure, he provided classified information to a NT Times reporter Risen.  In 2001, Risen published two articles based on classified information provided to him by Sterling.  After Sterling’s employment was terminated, Sterling attempted to publish a book but was denied ultimately because it contained classified information.

Afterwards, and while Sterling was pursuing legal action against the CIA, Sterling again gave Risen classified information.  NY Times Reporter met with senior administration officials to discuss the impact of the story.  The recommendation was to not publish, which the NY Times agreed to.  Nevertheless, NY Times reporter Risen published his book, “State of War: The Secret History of the CIA and the Bush Administration,” which disclosed classified information.

As a result, the Attorney General sought to compel Risen’s testimony about the identity of his source.  Risen motioned to quash the subpoena on the basis that he was protected under the First Amendment or/and the federal common-law reporter’s privilege.

 

The Circuit Court of Appeals disagreed.  The court held that Risen did not have a reporter’s privilege.  The Circuit Court of Appeals relied heavily on Supreme Court cases.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court in no uncertain terms rejected the existence of a reporters’ privilege.   In Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990), the Supreme Court explained that the “First Amendment does not invalidate every burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”  In Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991), the Supreme Court again stated that the First Amendment does not “relieve a newspaper reporter of the obligation shared by all citizens to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source.”

Pointedly, the Circuit Court of Appeals refused to apply a “balance test” approach when deciding whether a reporter can be compelled to testify in criminal proceedings.  The court noted that in civil matters, the court recognized a reporter’s privilege which could be overcome if the 3-part test was met.

The Circuit Court of Appeals noted why this line is so important.  In criminal cases, there is a fundamental and comprehensive need for every man’s evidence.  For this reason, any shield to information has to be narrowly construed.  In a civil matter, however, the need for information does not share the same urgency or significance.

For these reasons, the Fourth Circuit Court of Appeals ordered NY Times reporter Risen to testify in the criminal trial of former CIA official Sterling charged with providing the reporter with classified information.  In so doing, the Court of Appeals held that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them.

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July 22, 2013 · 13:45

Hair evidence analysis is not so great

I came across this very interesting press release which stated that in many FBI cases hair analysis’ reliability was exaggerated when making a positive identification in FBI cases.  These include 27 capital cases.

According to the press release, the FBI labs reports have consistently asserted that hair analysis can’t be used to make a positive identification.  However, some FBI agents asserted that hair analysis led to near-certain matches.

In other words, the practice of using hair analysis was deemed “highly unreliable” by the National Academy of Science.  Even though it is possible to conduct hair microscopy and find similarities among various samples, “in many cases the FBI analysts were overstating the significance of these similarities, often leaving juries with the false impression that a hair recovered from the crime scene must have come from the defendant and could not have come from anyone else.” (italics and underline added).

The FBI and the Justice Department uncovered the cases in a review of more than 20,000 lab files that was undertaken in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers, the story says.  So far, about 15,000 files have been reviewed, turning up about 2,100 cases in which hair evidence was used and 120 convictions that could be problematic, including the 27 capital cases.

The Innocence Project Co-Director Peter Neufeld made the following statement:

The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented.

The Justice Department will notify prosecutors, convicted defendants and their lawyers if a review panel finds FBI examiners made excessive claims. In such cases, the Justice Department will waive rules that restrict post-conviction appeals and will test DNA evidence upon the request of judges or prosecutors.

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Minn. Sup. Ct. reins in expungement power

Minnesota Lawyer (subscription required) has an interesting article regarding expungement of adult and juvenile cases.

In this decision, the Minn. Sup. Ct. declined to recognize a court’s inherent authority to order expungement of executive branch records of an adult’s criminal history (State v. M.D.T.).  When explaining prior precedent, the court differentiated State v. C.A., where the language was dicta and the case did not involve executive records.

The Minn. Sup. Ct. also narrowly construed a juvenile’s statutory expungement remedy in companion cases (In the Matter of the Welfare of: J.J.P.).  Here, the court held that the authority of the court under Minn. Stat. sec. 260B.198 is limited to the order adjudicating the juvenile delinquent.

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Filed under Appellate, courts, legal decision, Minnesota, Privacy Rights, state, Supreme Court

DNA collection of arrested individuals

This month, the Supreme Court will hear arguments on the issue of whether it is constitutional for the State to require DNA collection of arrested individuals.  The case is Maryland v. King.  The argument is set for February 26, 2013.

As way of background:

  • The federal government and at least 26 states (including California, Illinois, and Florida) take DNA samples from some or all who are arrested but not yet convicted of serious crimes.
  • Last month, President Obama signed into law the Katie Sepich Enhanced DNA Collection Act.  The statute will help pay the start-up costs for other states to begin testing people who are arrested.

So what does this issue mean?  The issue is whether the State, without a search warrant, can take a DNA swap of an arrested individual – who has not been convicted.

The Maryland Court of Appeals stated the 4th amendment, which bars unreasonable searches, protects people who haven’t been convicted from having to provide DNA evidence.  In addition, the court stated, “Although arrestees do not have all the expectations of privacy enjoyed by the general public, the presumption of innocence bestows on them greater protections than convicted felons, parolees or probationers.”

The Maryland Court of Appeals further explained that DNA samples “contain a massive amount of deeply personal information.”

 

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Judge Admonished for Comments About Victim’s ‘Technical Rape’ and Lack of Body Shutdown

You may remember the argument, which caused public outrage, over the belief that a body just “shuts down” when a woman is not subjected to real rape.  A judge used this same language in a California case, and was admonished for showing bias – a trait that runs afoul of judicial ethics.  These are the relevant parts of the article published in the ABA Journal News.

Judge Derek Johnson, from Orange County, California, was publicly admonished for saying a sexual assault victim had suffered only a “technical” rape and didn’t display vaginal damage characteristic of rape victims he had encountered as a prosecutor.

Judge Derek Johnson of Orange County had advanced his theory on body shutdowns during rape in a 2008 sentencing hearing, according to the opinion (PDF) by the California Commission on Judicial Performance.  The judicial discipline opinion has a transcript of his explanation why:

Johnson: “I spent my last year and a half in the DA’s office in the sexual assault unit. I know something about sexual assault. I’ve seen sexual assault. I’ve seen women who have been ravaged and savaged whose vagina was shredded by the rape. I’m not a gynecologist, but I can tell you something: If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight. And to treat this case like the rape cases that we all hear about is an insult to victims of rape. I think it’s an insult. I think it trivializes a rape.”

Johnson: “I just found the threats to be technical threats. I found this whole case to be a technical case. The rape is technical. The forced oral copulation is technical. It’s more of a crim law test than a real live criminal case.”

The commission said Johnson’s remarks reflected biased and insensitive views about sexual assault victims who do not “put up a fight.” Johnson had apologized for the remarks to the commission, saying he was frustrated by a sentencing request he considered inappropriate under the law. He remains on the bench.

via Judge Admonished for Comments About Victim’s ‘Technical Rape’ and Lack of Body Shutdown – News – ABA Journal.

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Criminal liability for illegal content stored in the cloud

A verdict against Megaupload in the US would mean other cloud storage providers can be held criminally liable for illegal content stored by customers on their networks, a lawyer representing the shuttered file-sharing site said.

Prosecutors in the US have accused Megaupload and seven people associated with the company, including founder Kim Dotcom, of copyright infringement, aiding and abetting copyright infringement, wire fraud and money laundering. The US has started proceedings to extradite them from New Zealand to the US, where they hope to put the company on trial.

It would be the first time a provider of cloud storage services had been charged with criminal copyright infringement in the US, said lawyer Ira Rothken, who will represent Megaupload if the case comes to trial.

The cases against the music file-sharing services Grokster and Napster were both civil cases, meaning they were brought by aggrieved parties, such as the record companies, as opposed to the state. Civil cases generally require a lower burden of proof, making them easier to prove.

via Megaupload lawyer says case could affect other storage services | Computerworld New Zealand.

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Federal Appeals Court Upholds Disclosure of Cell Phone Tracking Data

The D.C. Circuit sided against the Justice Department on Tuesday in upholding the public release of information about court cases in which authorities used cell phone location data to track criminal suspects, saying the disclosure of such information is of significant public interest.

via Federal Appeals Court Upholds Disclosure of Cell Phone Tracking Data.

 

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Filed under Appellate, civil rights, electronic discovery, legal decision