New Law Review Article: Wayne A. Logan, Dirty Silver Platters, 99 Iowa L. Rev. __ (2013). Abstract from SSRN:
This article addresses a longstanding concern in American criminal justice: the risk that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper “working arrangements.” Judicial vigilance, however, has long since waned, a problematic development assuming added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature.
Dirty Silver Platters offers the first comprehensive examination of this phenomenon and its many negative consequences, highlighting the need for more exacting judicial scrutiny of intergovernmental investigations. Without such scrutiny, modern silver platter doctrine, which allows admission of evidence illegally secured by non-forum agents found to be acting independently of agents of the forum court, is permitted to reign supreme. The article therefore seeks to pick up where mid-twentieth century courts left off, providing a reinvigorated framework to smoke out forum government agent involvement in investigations and condemn the legal evasion that it allows. In doing so, the article shines a spotlight on a critically important matter, implicating core rule of law and governmental transparency values, which will assume ever-greater importance in coming years as governments accelerate their combined investigative efforts in the battle against crime and domestic terrorism.
New law review article: Dirty Silver Platters
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Chin on Race and the Disappointing Right to Counsel
Gabriel J. Chin (University of California, Davis - School of Law) has posted Race and the Disappointing Right to Counsel (122 Yale Law Journal, 2013, Forthcoming) on SSRN. Here is the abstract: Critics of the criminal justice system observe that...
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Commemorating Equal Pay Day
Today, the Department of Justice’s Civil Rights Division (@CivilRights) participated in an Equal Pay Twitter Chat. Hosted by the National Women’s Law Center, the event brought together officials from across the Administration, members of Congress, advocates and community members to recognize National Equal Pay Day, which marks the point in the year when women’s wages [...]
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Louis Taylor freed after 42 years in prison
Recently, a man who spent 42 years in prison was finally released from custody. The man was convicted at the age of 16 of starting a fire that killed over 20 people. New evidence, however, convinced the government that it might not be such a bad idea to let him go. See "After 42 Years in Jail, Conviction Overturned in Case of Deadly Fire":
Louis Taylor was a teenager when he was convicted of murder for supposedly starting a fire that killed 29 people. Now 58, Taylor has been released from an Arizona prison after new information cast doubt on the evidence he committed arson.
The problem with so many people who are in custody that it is very difficult to get them out even if new evidence is discovered. Arizona has a procedure called a petition for post conviction relief, more commonly known as Rule 32. This procedure is most commonly used when a defendant claims his lawyer was ineffective. That's why is known as a petition for ineffective assistance of counsel. It is usually only available if the defendant went to a trial and lost. While it can be used if the defendant pled guilty, it is rare for it to be successful. The main problem with the rule 32 petition is that it goes to the same trial judge who heard the defendant's trial. As one may imagine any trial judge is unlikely to overturn a conviction that happened in his or her court.
The defendant has what is called a petition as a matter of right for the first rule 32 and that's is filed. That means the court must consider the petition. If the defendant files in a later rule 32 petitions, the court does not have to actually consider the petition.
If somebody has exhausted all state court remedies, which means appeal and a rule 32 petition, then they could go to federal court even though the conviction is in state court. If somebody is still in custody they can do what is called a petition of habeas corpus. If they are out of custody but still facing civil sanction, they can do another procedure called a petition for writ of error coram nobis.
The problem with any petition in federal court is that a federal judge is unlikely to overturn a state court conviction. And the simple fact of the matter is when somebody has been convicted of a crime they are more than likely to stay convicted of a crime whether or not they were truly guilty.
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Thomas & Leo on Torture to Miranda and Beyond
George C. Thomas III (pictured) and Richard A. Leo (Rutgers, The State University of New Jersey - School of Law-Newark and University of San Francisco - School of Law) have posted Confessions of Guilt: From Torture to Miranda and Beyond...
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Ineffective Assistance of Counsel in Utah
In Utah, a person may petition the Appeals Court after he has been convicted of a felony for ineffective assistance of counsel—another way of saying that an attorney erred in some fashion. In order to claim ineffective assistance of counsel, a person must prove that his attorney’s performance was deficient and that such deficient performance [...]
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Mortgage Broker to Spend a Year Behind Bars for Loan Fraud
Fred Stevens, 56, Easton, Connecticut, was sentenced by United States District Judge Janet C. Hall in New Haven to 12 months and one day of imprisonment, followed by three years of supervised release, for his role in a Fairfield County mortgage fraud scheme.
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Homeowner Admits Lying to Obtain Mortgage
John J. Doran, 63, Niantic, formerly of Deep River, Connecticut, pleaded guilty before United States Magistrate Judge Donna F. Martinez in Hartford to one count of making false statements to influence a bank in connection with a mortgage application.
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Schopp on Retribution, Revenge, and Capital Punishment
Robert F. Schopp (University of Nebraska at Lincoln - College of Law) has posted Retribution and Revenge in the Context of Capital Punishment on SSRN. Here is the abstract: Several Supreme Court opinions that reject capital punishment specifically or retributive...
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The Sandwich Theory
Quoth Papa Greenfield: Shortly after an instructor first arrives at Cardozo’s Intensive Trial Advocacy Program, after settling in with a bagel and coffee, Ellen Yaroshefsky would give a speech about how to critique the students’ performance. It’s been the same speech for years: First, tell them something they did well. Give them praise. Then, when [...]
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Del Norte County DA Facing Disbarment
Jon Alexander, the elected District Attorney of Del Norte County, recently faced the California State Bar Court for allegations of professional misconduct. Seven charges of misconduct were issued against Alexander last year for various occurrences that transpired during his time as the DA. One of the charges relates to an event where Alexander allegedly spoke with a represented defendant about a case without defense counsel present. Other alleged offenses include failing to disclose potentially exculpatory evidence.
Alexander's professional license defense was reportedly void of any sign of remorse or recognition of misconduct. This seems to have factored heavily in the court's decision as the judge pointed out that his claims of discriminatory prosecution were without support. The judge also noted that Alexander's supporters did not fully comprehend the gravity of the situation.
Based on the showing by prosecutors, Judge Lucy Armendariz dismissed four of the charges, but also ordered that Alexander's law license be placed on inactive status. The judge also recommended that he suffer disbarment. Alexander still has the ability to request a review of this decision within 30 days. He released an email which suggests that he is considering taking this step. For now we will have to wait to see how the case plays out in the near future.
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Tuesday Night Open Thread
Jimmy Kimmel's latest threat to Germany to release Justin Bieber's monkey is pretty funny. So is Kid Rock who comes on at the end (and of course Guillermo in the middle blowing up a German chocolate cake.)
Why is the Voice so much better...
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Justice and Revenge, Rosenbaum Trolling
I heard Thane Rosenbaum on NPR yesterday, and was instantly struck by how juvenile this law professor’s understanding of justice and human nature is. (Greenfield wrote last week about Rosenbaum’s Chronicle of Higher Education piece.) Rosenbaum’s stated premise is that justice equals revenge: “A call for justice is always a cry for revenge.” This is transparently [...]
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Papachristos, Wallace & Fagan on Desistance, Legitimacy, and Offender Notification Meetings
Andrew V. Papachristos , Danielle M. Wallace and Jeffrey Fagan (pictured) (Yale University - Department of Sociology, Arizona State University (ASU) and Columbia Law School) have posted Desistance and Legitimacy: The Impact of Offender Notification Meetings on Recidivism among High...
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All In For Citizenship March - We Will Be There!
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The Sixth Circuit Limits FCA Liability Arising Under Express and Implied Certifications: US ex rel Hobbs v. Medquest Associates
In United States ex rel Hobbs v. Medquest Associates, Inc., 2013 WL 1285590 (6th Cir. April 1, 2013), the Sixth Circuit reversed an $11 million False Claims Act judgment and rejected the Government's attempt to turn a health care provider's breach of its Medicare enrollment agreement into a False Claims Act violation. In so doing, the Sixth Circuit limits False Claims Act liability arising from violations of "express and implied certifications" in Medicare contracts. Rather, the Medquest Court reaffirmed that the "False Claims Act is not a vehicle to police technical compliance with complex federal regulations" and that the statute's "hefty fines and penalties make them an inappropriate tool for ensuring compliance with technical and local program requirements."In Medquest, the relator and later the Government alleged that Medquest, a diagnostic testing company that operated testing facilities, violated the False Claims Act ("FCA") by (1) "using supervising physicians who had not been approved by the Medicare program and the local Medicare carrier to supervise the range of tests offered" at testing sites; and (2) after acquiring a physician's practice in Charlotte, "fail[ing] to properly re-register the facility to reflect the change [in Medquest's] ownership and to enroll the facility in the Medicare program" and instead "continue to use the former owner's payee ID number." On the "supervising physician" issue, the District Court found that Medquest had expressly certified to Medicare that the "physicians listed in its [enrollment] application [to Medicare] would supervise" diagnostic testing and had implicitly certified that in billing Medicare, the "tests were provided in accordance with applicable Medicare regulations and by physicians approved by Medicare." By using "non-supervising personnel" to monitor diagnostic tests and by billing for such tests, the District Court found that Medquest violated these certifications, thus giving rise to FCA liability. According to the District Court, Medquest's failure to re-register the practice it acquired also constituted a "false certification" which together with Medquest's continued use of the former practice's billing number qualified as an FCA violation as well. The District Court entered summary judgment against Medquest.Though it expressed "little sympathy" for Medquest, the Sixth Circuit overturned the summary judgments, finding that the regulations underlying the certifications were "not conditions of payment" and did "not mandate the extraordinary remedies of the FCA." Rather, such violations, the Court observed, were "instead addressable by the administrative sanctions available." The Court found that Medquest's Enrollment Application statement that it was "in compliance with supervising-physician requirements" did not "constitute certifications that would support an FCA action." Moreover, the Court noted, "the certification does not contain language conditioning payment with any particular law or regulation." As for Medquest's failure to transfer the practice into its own name and its continued use of the prior physician's billing number, the Court rejected the Government's claim that this represented a "failure to enroll problem," stating that "[t]his case, at most, represents a failure to update enrollment information, which we have held is not a violation of a condition of payment."The Medquest decision is a powerful antidote to those decisions that seek to characterize every enrollment agreement breach or violation of a Medicare regulation as a violation of an express or implied condition of payment that gives rise to FCA liability. Rather, in the absence of specific contractual or regulatory language making Medicare payments contingent on fulfilling Medicare enrollment or participation conditions, the Sixth Circuit clearly applies a common sense approach, reserving the FCA's "extraordinary penalties" for more egregious regulatory violations.A. Brian AlbrittonApril 9, 2013
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Cybercrime Review welcomes Andrew Proia as guest writer
I am excited to welcome Andrew Proia as a guest writer for Cybercrime Review. Andrew will post as a guest writer starting this week. He plans to formally join Cybercrime Review as a permanent author sometime mid-summer.
Andrew is a 3L at Indiana University Maurer School of Law and is finishing up his J.D. with a concentration in information privacy and cybersecurity. In 2010, he received his B.S. in Criminal Justice, summa cum laude, from the University of Central Florida. Andrew was part of the 2012 scholarship class at the International Association of Privacy Professional’s 2012 Global Privacy Summit. Currently, he is a research assistant to Professor Fred Cate, C. Ben Dutton Professor of Law at Indiana University Maurer School of Law and Director of the Center for Applied Cybersecurity Research. A Managing Editor on the Indiana Law Journal, Andrew has two notes that will be soon published in the Indiana Law Journal and the University Of Florida Journal Of Law & Public Policy.
Andrew’s passion in law centers on issues related to privacy, technology, constitutional law, and (of course) cybercrime. In his downtime, he enjoys playing golf, reading, and spending time with his fiancée, Katie, and their dog, Duncan.
You can follow Andrew on Twitter at @andrewproia.![]()
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WI: Trial court erred in not considering automobile exception alternative for search
While the trial court expressly didn’t believe the officer that he could smell marijuana and suppressed, there was other evidence of marijuana in the passenger compartment of the car that supported a search under the automobile exception. State v. Jackson, 2013 Wisc. App. LEXIS 304 (April 9, 2013).*
Officers did a knock-and-talk to investigate a photograph of an alien in possession of a firearm under 18 U.S.C. § 922(g)(5), and it was initially consensual. Because one person locked the door and there was concern of an assault rifle inside, officers could position themselves for safety purposes without making the knock-and-talk become coercive. United States v. Lara-Mondragon, 2013 U.S. App. LEXIS 7129 (11th Cir. April 9, 2013).*
The stop was for speeding. “Defendants point specifically to Sergeant Soles' direction to Deputy Russell to ‘see if you can get a violation on your own, and if not we'll use one of mine.’ (Gov't Ex. 2 (Video from Sergeant Soles' Patrol Car), 1:15.)” The officer with the speeding stop is credited. Reasonable suspicion then developed. United States v. Williams, 2013 U.S. Dist. LEXIS 50782 (M.D. N.C. April 9, 2013).*
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D.Md.: Where no "binding circuit precedent" Davis good faith can't save GPS placement
Where there was no binding circuit precedent, pre-Jones placement of a GPS could not be protected by Davis. There were, however, court orders for cell phone tracking. The court finds that these orders were not sufficient to provide an independent source for the detailed tracking information the GPS provided. United States v. German, 2013 U.S. Dist. LEXIS 50462 (D. Md. April 8, 2013):
The Government has not met its burden of proving that the independent source or inevitable discovery doctrines apply. As to the independent source doctrine, the Government has not shown by a preponderance of the evidence that they obtained the same surveillance evidence through use of authorized cell phone tracking. As to the inevitable discovery doctrine, the Court is not persuaded that law enforcement "inevitably" would have obtained the same evidence, particularly given the duration and scope of the surveillance and the officers' necessarily limited resources.
911 shots fired call coupled with a reasonable belief the shooter went into the house justified a hot pursuit into the house. Opening a basement door and finding the gun was not unreasonable. United States v. Barclay, 2013 U.S. Dist. LEXIS 50914 (N.D. Ohio April 9, 2013).*
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E.D.N.Y.: Defendant gets a Franks hearing and doesn't prevail
Defendant got a Franks hearing, and he did not prevail. “Consequently, the Court finds no evidence that the transcript or the affidavit contained statements that were deliberately false or made with reckless disregard for the truth.” Even if the challenged information were excised, there still is probable cause. United States v. Serrano, 2013 U.S. Dist. LEXIS 50996 (E.D. N.Y. April 8, 2013).*
“In this case, the record establishes that Agent Jackson entered the apartment only after the facts and circumstances would have led a reasonable person to conclude that the apartment contained contraband or evidence that was imminently likely to be destroyed. Therefore, his entry into the apartment was objectively justified. Agent Jackson's subjective expectation that a search would be fruitful has no bearing on the inquiry. See King, 131 S. Ct. at 1859 ...” United States v. Staley, 2013 U.S. Dist. LEXIS 50901 (M.D. Ala. March 15, 2013).*
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