Tag: Law

In a speech Saturday at The New School in New York, Noam Chomsky explained why he believes the U.S. poses the greatest threat to world peace. “[The United States] is a rogue state, indifferent to international law and conventions, entitled to resort to violence at will. … Take, for example, the Clinton doctrine-namely, the United States is free to resort to unilateral use of military power, even for such purposes as to ensure uninhibited access to key markets, energy supplies and strategic resources-let alone security or alleged humanitarian concerns. And adherence to this doctrine is very well confirmed and practiced, as need hardly be discussed among people willing to look at the facts of current history.” Chomsky also explained why he believes the U.S. and its closest allies, namely Saudi Arabia and Israel, are undermining prospects for peace in the Middle East. “When we say the international community opposes Iran’s policies or the international community does some other thing, that means the United States and anybody else who happens to be going along with it.”

As you read this , you are reading history. Not in the sense that it is something memorable but in the sense that it has happened. So everything that we do or say, once said or done, is in the past one nanosecond later. Think about that and now apply it to the the Fourth Amendment and warantless searches by law enforcement.   The North Carolina Court of Appeals has now applied that logic to a ruling involving the search of a defendant’s  cell phone records without a warrant (pdf) through the backdoor of warrant that was tangential to the case.

Superior Court Judge Lucy N. Inman signed the order and Detective Mitchell submitted it to AT&T, the cellular phone service provider and holder of the account associated with the phone number. AT&T provided the records of the location of the cell phone tower “hits” or “pings” whenever a call was made to or from the cell phone. AT&T sent emails of the longitude and latitude coordinates of these historical cell tower “hits” to Detective Mitchell every fifteen minutes. Detective Mitchell testified an approximately five- to seven-minute delay occurred between the time the phone “pinged” a cell phone tower and the time AT&T received and calculated the location and sent the latitude and longitude coordinates to him.

Tim Cushing at Techdirt explains how the definition of “historical” has now been twisted to violate a defendant’s civil rights:

The defendant argued that the “real time” tracking of his location violated his Fourth and Fourteenth Amendment rights (as well as analogous parts of North Carolina’s constitution). The court doesn’t buy these arguments, citing the Stored Communications Act, which allows government entities to obtain certain third party records without a warrant. It says the difference between what’s been considered unconstitutional by several courts — obtaining real-time location information with a tracking device — isn’t what’s happening here.

It argues that because the police didn’t intercept these “records,” everything is above-board, even if the sought “historical” data included two days of “records” that were created after the court order was approved.

Several courts have held the SCA permits a government entity to obtain cell tower site location information from a third-party service provider in situations where the cell tower site location information sought pre-dates the court order and where the cell tower site location information is collected after the date the court order issues. Although the former may technically be considered “historical” while the latter is “prospective” in relation to the date of the court order, both are considered “records” under the SCA. The government entity only receives this information after it has been collected and stored by the third-party service provider.

In plainer English, this means law enforcement entities can seek “historical” records from the “future,” with the mitigating factor being that the records are collected by third parties first. A short delay of a few minutes is enough to call these records “historical” under this interpretation.  [..]

While the majority’s interpretation dilutes the meaning of “historical” by including location data yet to be generated under its warrantless wing, it does point out to possible future problems with the use of Stingray devices. These have often been deployed with the same sort of court orders, but contain the ability to track individual phones in real time. Once more details on these deployments come to light, the courts will be forced to confront a plethora of Fourth Amendment violations — at least if they’re going to remain consistent with this interpretation of “historical.”

Can you hear the sound of the shredder?

Once again the Department of Justice has failed to hold executives of a large corporation criminally accountable. This week General Motors agreed to pay $900 million and entered a deferred prosecution agreement to end a U.S. Department of Justice criminal investigation into its handling of defective ignition switches in many of its vehicles. They have agreed to independent monitoring of their safety systems. If they adhere and their are no further violations, GM could have its record wiped clean. That’s hardly a satisfying agreement for the families of the 124 people who died in GM vehicles that the company knew were unsafe.

And even though General Motors will pay a $900 million penalty, it was 25 percent less than the record $1.2 billion Toyota agreed to pay last year.

“I don’t understand how they can basically buy their way out of it,” said Margie Beskau, whose daughter Amy Rademaker was killed in an October 2006 crash in Wisconsin. She added, “They knew what they were doing and they kept doing it.”

During the press conference US Attorney Preet Bharara defended the settlement and his satisfaction with the internal investigation that was conducted by a law firm with close ties to General Motors.

The two law firms hired for that inquiry, King & Spalding and Jenner & Block, had previously done legal work for G.M. And court papers show that Anton R. Valukas, the chairman of Jenner & Block, who headed the G.M. investigation, helped represent the automaker in its talks with the Justice Department.

Mr. Valukas declined to be interviewed, and several corporate lawyers said such arrangements are not unusual because an outside law firm that conducts an investigation knows the facts of a case. But Deborah L. Rhode, a professor at Stanford Law School, said the public’s interest may suffer when a law firm wears so many different hats.

“It would be nice to know that the law firm doing the internal investigation was truly disinterested and didn’t have an interest in subsequent representation” of the same company, Ms. Rhode said.

Needless to say the agreement has not satified the critics of the investigation. Senators Richard Blumenthal (D-CT) and Edward J. Markey (D-MA) called it “extremely disappointing.” However, congress holds some responsibility in the inability to prosecute the auto makers:

As Danielle Ivory and Ben Protess reported at The Times in July, federal law sets a very high standard for pursuing a criminal case against people who knowingly withhold information about the risks products pose to human life. In auto cases, prosecutors have to prove corporate officers intended to defraud someone, something they do not have to do in food and pharmaceutical cases.

If it was not clear to Congress already that the law needs to change, this case should certainly make it clear. Serious safety problems in cars can be as deadly as contamination in food or drugs, and the law should treat them similarly.

G.M. used the defective switch in numerous cars and it has been linked to 124 deaths, according to compensation claims evaluated by a G.M. fund for victims administered by the lawyer Kenneth Feinberg. The fund has determined that another 275 people deserve compensation for injuries.

This is just one more failure of the Obama Justice Department who are suppose to prosecute criminals.

Most people never expect to get arrested but many who do are poor and cannot afford a lawyer to represent them, so they are provided with a public defenders. Sounds fair but is it? According to John Oliver, host of HBO’s “Last Week Tonight,” it is far from fair or adequate.

John Oliver: If you’re forced to rely on “hideously broken” public defender system, “you’re f*cked”

By Scott Eric Kaufman, Salon

On “Last Week Tonight” Sunday, host John Oliver discussed the plight of those forced to rely on “the attorneys provided for you” if you can’t afford one – public defenders – and how the poor are being “charged for access to a hideously broken system.” [..]

Oliver later discussed the ordeal of a Floridian who was arrested on a traffic violation and racked up over $600 in court fees in order plead “no contest.” “They may as well as charged him an irony fee,” Oliver said, “because as it turns out, being poor in Florida is really fucking expensive.”

Arrested? John Oliver Has A Warning You Have To Hear

Ed Mazza, Huffington Post

Public defenders are so overworked that they often handle hundreds of cases — or in Fresno County, California, they handle up to 1,000 felony cases a year when state guidelines say they should only have 150.

And in New Orleans, some public defenders get an average of seven minutes to prepare a case. [..]

It’s so bad that New Orleans is turning to crowdfunding to make up its budget shortfall, Oliver said, and many states now even charge people for access to a public defender.

“We have a system where conceivably, if you cannot afford an attorney, one will be provided for you, provided that you pay that attorney, which is absurd,” Oliver said. “You can’t tell people something’s free and then charge them for it. This is the American judicial system — not Candy Crush.”

In a passionate plea, John Oliver, the host of “Last Week Tonight,” explains why the need for the federal government must put an end to the discrimination that the LGBT community faces. He does it like no else could.

It is one year since a young black man was gunned down by a white police officer on the streets of Ferguson, Missouri for jay walking. Michael Brown’s death and the subsequent cover up of his murder by the police and prosecutor’s office sparked months of demonstrations that were marked by more police brutality and violation of the constitutional rights of the protestors and the press.

Seven months later, the Justice Department cleared the white police officer, Darren Wilson, of civil rights charges. However, in a scathing report the police and the courts routinely demonstrated racial bias and violated the constitutional rights of the black citizens of Ferguson with illegal traffic stops, arrests without reasonable suspicion and excessive fines for minor infractions. Then Attorney General Eric Holder misguidedly thought that this report would effect change. The still mostly white Ferguson city council rejected the report and its reforms. And, as seen by this week’s violence, arrests of reporters and use of excessive police tactics during the demonstrations on the anniversary of Michael Brown’s death, nothing has changed and once again there is a state of emergency in Ferguson and St. Louis County.

The state of emergency was precipitated by the shooting and critical wounding of an 18 year old black man by undercover police who claim that the young man was firing at them. The officers were not wearing body cameras and unmarked vehicle they were in was not equipped with a dash camera. So there is only their word.

In the original New York Times article, this quote, cited by Esquire‘s Charles Pierce, from State Senator Maria Chappelle-Nadal, whose district includes Ferguson, was removed:

“After a year of protest and conversation around police accountability, having plainclothes officers without body cameras and proper identification in the protest setting leaves us with only the officer’s account of the incident, which is clearly problematic,” Kayla Reed, a field organizer with the Organization for Black Struggle, said in a statement. State Senator Maria Chappelle-Nadal, whose district includes Ferguson, said on Monday that she was seeking information about the shooting. “I’m just trying to figure out the timeline of events and ensure that police officers are following protocol,” said Ms. Chappelle-Nadal, who has been active in protests here. The shooting, which came toward the end of an otherwise peaceful day, was another vexing turn for activists and the authorities alike. It was the second consecutive night of gunfire on West Florissant Avenue.

There is also the issue of arresting reporters on bogus charges supressing freedom of the press:

Huffington Post, Washington Post Reporters Charged For Doing Journalism In Ferguson (UPDATE)

by Michael Calderone, Huffington Post

“You’d have thought law enforcement authorities would have come to their senses about this incident.”

Reporters from The Huffington Post and Washington Post have been charged with trespassing and interfering with a police officer’s performance, a chilling setback for press freedom coming nearly a year after their arrests in Ferguson, Missouri.

The Huffington Post’s Ryan J. Reilly and Washington Post’s Wesley Lowery were arrested while working out of a McDonald’s on Aug. 13, 2014, just four days after white police officer Darren Wilson shot and killed unarmed black teenager Michael Brown.

Police claimed the journalists, who were covering the unrest that followed the police killing, didn’t leave the restaurant fast enough.  Reilly described a police officer shoving his head against glass during his arrest, while Lowery said an officer pushed him into a soda machine. Both Lowery and Reilly were quickly released and not charged with any crime at the time.

The decision to charge Reilly and Lowery now is especially surprising, given that St. Louis County settled just last week with two other journalists arrested while reporting in Ferguson.

Until recently, Reilly and Lowery believed their incidents with police were long over with. The Huffington Post reported last month that the St. Louis County Police Department filed incident reports in late April describing the two reporters as trespassing in the McDonald’s. Police referred their cases to the St. Louis County counselor’s office, which, given a one-year statute of limitations, had until Thursday to bring charges.

Peaceful, unarmed protesters and reporters doing their jobs are harassed and arrested. Now, the vigilantes have arrived:

Heavily-armed members of a controversial right-wing “patriot” group added an extra dose of unease to protests in Ferguson, Missouri, early Tuesday.

The Oath Keepers organization says its members – all former military, police and first responders – pledge to “defend the Constitution against all enemies, foreign and domestic.”

However, St. Louis County Police Chief Jon Belmar described their presence as “both unnecessary and inflammatory.”

Protesters and police confirmed that a handful of Oath Keepers with what appeared to be assault rifles, bulletproof vest and camouflage gear were seen early Tuesday on the streets of Ferguson, which was under a state of emergency following demonstrations pegged to the anniversary of Michael Brown’s death.

Several protesters confronted members of the group, asking why they were allowed to openly carry weapons.

“I’m happy that we’re able to defend ourselves,” one Oath Keeper replied in footage from NBC station KSDK. “It’s been our right for a long time.”

The St. Louis County Police Department said it would consult with the St. Louis County Prosecuting Attorneys Office about the legalities of the issue.

Missouri allows individuals with concealed weapons permits to openly display firearms, unless it is done in an “angry or threatening manner.”

Shawn McGuire, a spokesman for St. Louis County Police, said he did not believe officers had confronted the Oath Keepers or told to leave.

Holy crap on a pogo stick, protesters are arrested for lawful assembly, two reporters are being railroaded, black men are still being indiscriminately shot by white cops, yet, civilian white men, armed to the teeth are allowed to roam free on the streets of Ferguson, unchallenged by the police or courts. Seriously, nothing has been learned from last year. Not one damned thing.

The cocksure Tea Party governor of Maine, Paul Lepage, decided he would play games with what he thought were his veto powers under Maine’s constitution by using a pocket veto of 65 bills.

On Thursday, LePage delivered vetoes of 65 of those bills (the rest he returned unsigned) and urged the Legislature to consider his vetoes. Both House Speaker Mark Eves, D-North Berwick, and Senate President Michael Thibodeau, R-Winterport, said they would not let the vetoes hit the floors of their respective chambers.

LePage argued that because lawmakers left Augusta on June 30, he had been prevented from returning the vetoes before the 10 days had expired. The Maine Constitution states that if a Legislature adjourns, the governor may hold bills until three days after they return.

The House and Senate passed a temporary adjournment order on June 30 to give LePage time to act on the bills. Top lawmakers and Attorney General Janet Mills, a Democrat elected by the Legislature, said that temporary recess was not adjournment, and thus did not give LePage more time to act.

Gov. LePage’s problem was that he was using his interpretation of the constitution, not what it really said. So off to the Maine Supreme Court he went. Briefs from both sides were submitted and oral arguments were heard last Friday

Today that court disagreed with the governor and those 65 bills are now law:

Gov. Paul LePage erred in his end-of-session veto gambit, and in so doing lost the ability to veto 65 bills that he opposed.

In an advisory opinion released by the Maine Supreme Judicial Court on Thursday (pdf), the justices said that the bills in question became law without the governor’s signature, and that the Legislature should not be required to consider his attempted vetoes. [..]

In making its decision, the court relied in part on decades of precedent in which Maine governors had returned vetoes to the Legislature while it was in recess.

“History demonstrates that Maine governors, for nearly forty years, have routinely returned bills with their vetoes during temporary absences of the Legislature that came at the end of the session – after an “adjournment” but before the Legislature adjourned sine die,” the court wrote.

“These examples demonstrate that temporary adjournments of the Legislature near the end of a legislative session-whether until a date certain or until the call of the leadership, and whether beyond a ten-day period-have not prevented governors from returning bills with their objections to their Houses of origin within the constitutionally-required ten-day timeframe.”

LePage on Thursday thanked the court for its ruling.

Indeed, too clever byhalf.

When you think of the state of Maine, you usually think of woods, camping, vacations, rocky beaches, sailing and, maybe, the Bush crime family or where Tom Clancy hid a stolen Russian submarine in his novel, “Hunt for the Red October.” You don’t think of it as one of the crazy states like Kansas, Texas or Oklahoma but since Republican Governor Paul LePage was reelected in November, Maine is now up there at the top of the crazy list.

The Tea Party Republican governor has been in a veto war with the state’s two house legislature over taxes, spending, health care, the state budget just to name a few. The Republicans, who are mostly moderates, hold the majority in the Senate and the House majority is Democratic. They work fairly well together and have been successful in overriding the governor’s vetoes that would have crippled the state. The dispute came to a head in July when the Gov. LePage tried to use a the parliamentary procedure known as the pocket veto on 19 bills. But the clerk of the Maine House says that the vetoes were not valid under the state’s constitution. Talking Points Memo has been following this wish relish

By not signing the bills and “pocketing” them, LePage could under some circumstances have effectively vetoed them. In theory, that would have allowed the proposals to die without legislators having a chance to override his veto. But the pocket veto only works if the legislature has adjourned after the end of the second regular session. And there is the rub.

The clerk of the Maine House told TPM Wednesday morning that the legislature, which is nearing the end of the first regular session, has not adjourned. By not vetoing the bills within the required 10-day period, LePage allowed the bills he opposed — some ferociously — to become law.

But LePage’s office is now claiming the legislature did adjourn. [..]

Here’s what Article IV, Section 2 of the Maine Constitution says on the subject:

   If the bill or resolution shall not be returned by the Governor within 10 days (Sundays excepted) after it shall have been presented to the Governor, it shall have the same force and effect as if the Governor had signed it unless the Legislature by their adjournment prevent its return, in which case it shall have such force and effect, unless returned within 3 days after the next meeting of the same Legislature which enacted the bill or resolution; if there is no such next meeting of the Legislature which enacted the bill or resolution, the bill or resolution shall not be a law.

Both Hunt and Suzanne Gresser, the reviser of statutes, are acting as if the usual 10-day period for the governor to veto the bills has passed and are now on their way to becoming law.

Things went downhill from there. The governor then threw a temper tantrum, refused to concede to the bipartisan interpretation of the constitution and put a hold on another 51 bills

LePage’s office is saying that he will sit on another 51 bills passed by the state legislature. Those are in addition to the 19 bills he previously failed to act on. He plans to send them all back to the legislature with a veto when lawmakers return to Augusta July 16, the Bangor Daily News reported.

Democratic lawmakers and the clerk of the state House contend — and history and custom tend to support their view — that LePage missed the 10-day deadline he had to veto those 19 bills. Under Maine’s constitution, the bills automatically become law if the governor doesn’t act within that 10-day window.

LePage contends that the legislature adjourned June 30, which triggers another section of the state constitution that gives him additional time to act. But lawmakers claim they never took the kind of “adjournment” required by the constitution to allow LePage to wait to act on the bills, and they become law when he didn’t return them in the 10-day period.

Needless to say the Democrats and the Republicans refused to accept his vetoes, stating the governor had missed the 10 day deadline. Gov. LePage then took the disagreement to the Maine Supreme Court asking them to decide if he botched the vetoes. To add insult to injury, the Democratic House and Republican Senate leadership refused House Minority Leader Ken Fredette’s request to use public money to underwrite the associated legal costs.

The court fast-tracked the request, briefs were filed last Friday and oral arguments began today

The discussion revolved around thorny, complex issues of procedural mechanics and constitutional balance of power between the executive and legislative branches. Over the course of about 45 minutes, LePage’s counsel Cynthia Montgomery and the attorney representing Maine’s House and Senate each had 15 minutes each for their opposing arguments, with Montgomery given the opportunity for rebuttal at the end. Additionally, an attorney representing a few House Republicans as well as counsel for the attorney general each had a few minutes to make their cases, with the former favoring LePage’s view and the latter challenging it.

The justices were clearly seeking to streamline the arguments being presented in front of them, perhaps knowing both the short-term impact of their decision on dozens of pieces of legislation, as well as the long-term precedent they could set in navigating what has become a constitutional crisis. Their questions touched on both broad understanding of the executive branch’s veto powers and LePage’s specific motivations in waiting to submit his vetoes. They were mostly patient to weed through the convoluted specifics of the case, but at times were willing to call out what appeared to be suspicious reasoning.

To make matters worse for Gov. LePage, he being now sued for abuse of power. Steve Brennan, at MSNBC’s Maddowblog, reported this yesterday:

Maine Gov. Paul LePage (R) is caught up in a doozy of a controversy. As regular readers know, a Maine charter school recently hired state House Speaker Mark Eves (D), but LePage, a fierce opponent of Democratic legislators, threatened the school – either fire Eves or the governor would cut off the school’s state funding. In effect, LePage played the role of a mobster saying, “It’s a nice school you have there; it’d be a shame if something happened to it.”

The school, left with no options, reluctantly acquiesced. The problem, of course, is that governors are not supposed to use state resources to punish people they don’t like. By most measures, it’s an impeachable offense.

As of today, as the Portland Press Herald [reported http://www.pressherald.com/201… it’s also the basis for a civil suit.

   Democratic House Speaker Mark Eves will file a civil lawsuit Thursday against Gov. Paul LePage, alleging that the governor used taxpayer money and the power of his office to prevent his hiring at a private school in Fairfield.

   The lawsuit, to be filed in U.S. District Court in Portland, has been anticipated ever since the board of directors at Good Will-Hinckley voted to rescind its offer to pay Eves $150,000 a year to become the organization’s next president. Eves said that the board told him before his contract was terminated that LePage threatened to eliminate $530,000 in annual state funding for the school unless it removed him from the job.

“Acting out of personal rage, vindictiveness and partisan malice, Gov. Paul LePage blackmailed a private school that serves at-risk children into firing its president, the Speaker of Maine’s House of Representatives,” the complaint reads.

The governor hasn’t denied the allegations and is now facing possible impeachment

Even Politico has called LePage “America’s Craziest Governor” and questioned if he is “playing with a full deck.”

Maine may be be this Summer’s best entertainment. Get the popcorn.