Law

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Torture? Obviously, But What About Litany Of Other Crimes?

So, just a quick thought here, and with a little prompting by Jon Turley, obviously there is torture, and outright homicide thereon, spelled out and specified by the SSCI Torture Report. As I have said on Twitter, there are many things covered in the SSCI Torture Report and, yet, many things left out.

There are too many instances in the SSCI Torture Report to catalogue individually, but let’s be perfectly clear, the failure to prosecute the guilty in this cock up is NOT restricted to what is still far too euphemistically referred to as “torture”.

No, the criminality of US Government officials goes far beyond that. And, no, it is NOT “partisan” to point out that the underlying facts occurred under the Cheney/Bush regime (so stated in their relative order of power and significance on this particular issue).

As you read through the report, if you have any mood and mind for actual criminal law at all, please consider the following offenses:

18 U.S.C. §1001 False Statements

18 U.S.C. §1621 Perjury

18 U.S.C. §1505 Obstruction of Justice

These are but a few of the, normally, favorite things the DOJ leverages and kills defendants with in any remotely normal situation. I know my clients would love to have the self serving, toxically ignorant and duplicitous, work of John Yoo and Jay Bybee behind them. But, then, even if it were so, no judge, court, nor sentient human, would ever buy off on that bullshit.

So, here we are. As you read through the SSCI Torture Report, keep in mind that it is NOT just about “torture” and “homicide”. No, there is oh so much more there in the way of normally prosecuted, and leveraged, federal crimes. Recognize it and report it.

SSCI Torture Report Key: They Knew It was Torture, Knew It Was Illegal

CryingJusticeOkay, here are the critical working documents:

The SSCI Torture Report

The Minority Response to SSCI Torture Report

Dianne Feinstein’s Statement

But, without any question, my best early takeaway key is that the United States Government, knew, they bloody well knew, at the highest levels, that what was going on in their citizens’ name, legally constituted torture, that it was strictly illegal. They knew even a “necessity” self defense claim was likely no protection at all. All of the dissembling, coverup, legally insane memos by John Yoo, Jay Bybee et. al, and all the whitewashing in the world cannot now supersede the fact that the United States Government, knowing fully the immorality, and domestic and international illegality, proceeded to install an intentional and affirmative regime of torture.

Here, from page 33 of the Report, is the language establishing the above:

…drafted a letter to Attorney General John Ashcroft asking the Department of Justice for “a formal declination of prosecution, in advance, for any employees of the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution. The letter further indicated that “the interrogation team had concluded “that “the use of more aggressive methods is required to persuade Abu Zubaydah to provide the critical information we need to safeguard the lives of innumerable innocent men, women and children within the United States and abroad.” The letter added that these “aggressive methods” would otherwise be prohibited by the torture statute, “apart from potential reliance upon the doctrines of necessity or of self-defense.”

They knew. And our government tortured anyway. Because they were crapping in their pants and afraid instead of protecting and defending the ethos of our country and its Founders.

Coffin Corner Trash Talk

Okay, I tried to get folks interested in the criminal docket report yesterday, to sadly little avail. Oh well, so be it. Let us dive headfirst into trash then.

First up is the Pac-12 Championship game between the Oregon Quackers and the Cats from Arizona, played in the Big Blue Jeans in Not Frisco (yes, I am trying to piss off those NoCal locals who HATE the term Frisco). Halfway through the third quarter and the Quack Attack is just rolling Rich Rod and the Sad Cats. Ouch. All I can say is, yo, enjoy it Cats, unlike ASU, this is as close to the Rose Bowl as you are gonna get. I rooted for you for one night, and look what happened! Bygones baybee!

That was last night, today brings us conference championship games like Ohio State and Wisconsin, Kansas State and Baylor, Alabama and Missouri, and Florida State versus Georgia Tech. I’ll take, respectively, Wisconsin, Baylor, Crimson Tide and Tech in a wild upset. In some NCAA criminal docket new, Jameis Winston is one of the most reprehensible pieces of human trash I have seen in years. He refused to testify in his disciplinary hearing, but cravenly filed an unnecessarily graphic and lewd belligerent letter and then released it to the press. Then, not satisfied with what he has already done, Winston is mentally raping his victim once again. Winston and his lawyers now are threatening to intentionally try to separate the victim from her lawyers by suing the lawyers for defamation. This won’t work, but will eat up time and money for the victim trying to fend it off. It is one of the most assholish things I have seen from an attorney in some time; Winston is one nasty piece of work. Unbelievable.

In the pros, There are a morgue full of games that may put the losers in coffins. This is similar to a guillotine day. The Steelers play the Bengals twice in the last four weeks, starting in Cinci this weekend. They probably need to win both if they want to win the division. Unfortunately, I don’t think they get it done. The Browns, like the Steelers, have a 7-5 record and can’t lose many more games and still hope to make the playoffs. Don’t think they get it done at home against the Colts either. Colts are not flashy, but Luck has them on a roll. The Ravens and Fish play in Miami. Both of them are also 7-5, and the winner will be looking good and the loser not so much. That game is really a tossup, but I like the Fish at home.

The Chefs come to the desert to meet the suddenly reeling Cardinals. The Cards are very tough at home, and they desperately need a win after two losses in a row because they finish the schedule out agh the Rams, home for Seattle and away at Niners. There is an air of doom and gloom right now in Phoenix, with the fear that the Cards may no win another game and will not even make the playoffs despite the 9-1 start. There is good reason for that fear.

The best game of the week is Seattle at Philly. The Squawks have their groove back and the Iggles are now sitting, at 9-3, with the best record in the league (shared with Green Bay, AZ, NE and Denver). It is the age old battle of lockdown defense versus high flying offense. Mark Sanchez has been pretty good since replacing Nick Foles, but hasn’t faced anything like Seattle’s defense. I’ll take the Squawks for a key road win. The Pats have spent all week in San diego getting ready for their game with the Bolts. The Chargers close with Denver Niners and Chefs, with the last two on the road, so they could really use a win against Bill Bel, Brady and the boys. No idea why I have this crazy notion, but I think the Bolts will pull this one out.

The Pack are in Atlanta for Monday Night Football, and Denver is home against the Bill. Both should be fine, but that will about end Buffalo’s slim playoff hopes. Music this week from the Killers who are….simply killer.

Yes, Ray Rice’s Diversion Adjudication Was Appropriate

JusticePicThe popular meme has been that Ray Rice got some kind of miraculous plea deal to diversion (pre-trial intervention, or “PTI”, in New Jersey parlance) and that NOBODY in his situation ever gets the deal he did.

Is that true? No. Not at all. Kevin Drum wrote a few days ago at Mother Jones on this subject:

First, although Ray Rice’s assault of Janay Palmer was horrible, any sense of justice—no matter the crime—has to take into account both context and the relative severity of the offense. And Ray Rice is not, by miles, the worst kind of domestic offender. He did not use a weapon. He is not a serial abuser. He did not terrorize his fiancée (now wife). He did not threaten her if she reported what happened. He has no past record of violence of any kind. He has no past police record. He is, by all accounts, a genuinely caring person who works tirelessly on behalf of his community. He’s a guy who made one momentary mistake in a fit of anger, and he’s demonstrated honest remorse about what he did.

In other words, his case is far from being a failure of the criminal justice system. Press reports to the contrary, when Rice was admitted to a diversionary program instead of being tossed in jail, he wasn’t getting special treatment. He was, in fact, almost a poster child for the kind of person these programs were designed for. The only special treatment he got was having a good lawyer who could press his cause competently, and that’s treatment that every upper-income person in this country gets. The American criminal justice system is plainly light years from perfect (see Brown, Michael, and many other incidents in Ferguson and beyond), but it actually worked tolerably well in this case.

Mr. Drum is absolutely correct, Ray Rice was quite appropriate for the diversion program he was ultimately offered and accepted into by Atlantic County Superior Court.

In fact, that is exactly the deal I would hope, and expect, to get for any similarly situated client in Rice’s position. It is also notable the matter was originally charged as a misdemeanor assault in a municipal court, which is how this would normally be charged as there was no serious physical injury. Rice would have gotten diversion there too and, indeed, that was the deal his lawyer, Michael Diamondstein, had negotiated with the municipal prosecutors before the county attorney snatched jurisdiction away and obtained a felony indictment. Despite the brutality depicted by the video, this is precisely the type of conduct that underlies most every domestic violence physical assault (seriously, what do people think it looks like in real life?) and it is almost always charged as a simple misdemeanor assault.

Janay Palmer Rice clearly did not receive a “serious physical injury” level of injury under the applicable New Jersey definition in NJ Rev Stat § 2C:11-1(b) and a small period of grogginess/unconsciousness is not considered, by itself, as meeting the threshold. Now, to be fair, New Jersey has two levels of injury that can lead to a felony charge, the aforementioned “serious physical injury”, and the lower “significant physical injury”, pursuant to NJ Rev Stat § 2C:11-1(d) that Rice was charged under, and which is a far less serious charge, even though still nominally a felony under New Jersey classification.

The injury to Janay Palmer (Rice) did fall within the lower “significant physical injury” threshold under New Jersey’s criminal statutes because of the momentary apparent lapse of consciousness. So, under the New Jersey statute, while the felony, as opposed to simple misdemeanor, charge may have not been the norm for such a fact set, it was certainly minimally factually supportable. That said, most all similar cases would still be charged as simple assault, as indeed, as stated above, Rice initially was. The New Jersey assault statute, with its different iterations of offenses, and offense levels, is here.

With that description of the nature and structure of assault in New Jersey out of the way, there is something else that must be addressed: I am absolutely convinced that the Continue reading

Ferguson/Wilson Grand Jury Return Thoughts and Working Materials

CryingJusticeLast night was quite a night in the greater St. Louis Missouri area, especially the towns of Ferguson and Clayton, where the St. Louis County seat and courthouse is located.

First, at the insanely reckless, and inexplicably late hour of 8:00 pm, St. Louis prosecutor Bob McCulloch held one of the most surreal and disingenuous press conferences I have ever seen by a prosecutor in my life. Correction, not one of the most, but THE MOST. Here is the video and an uncorrected transcript from CSPAN.

The content is simply stunning. Prosecutor McCulloch basically gives a closing summation from the perspective of Darren Wilson’s personal defense attorney. Which makes sense, as that has been the clear and unmistakable posture of McCulloch from the outset of this charade. He glowingly recounts cherry picked aspects of Wilson’s testimony to support the officer’s narrative, and then attacks the numerous civilian, and mostly black, witnesses that support the Brown side of things as all being either mistaken, liars or not even there. Just amazing.

But, as I alluded to, it was not just the content, but the timing of McCulloch’s press conference as well. It was a consummately reckless and hideous thing to do to wait until well into the night and darkness to incite the tinderbox of emotion and protest. Here is Jeff Toobin at CNN:

Here’s the thing about that time of night: it’s dark. Anyone — anyone! — should have known that the decision in the Brown case would have been controversial. A decision not to indict, which was always possible, even likely, would have been sure to attract protests, even violence. Crowd control is always more difficult in the dark.

The grand jury’s deliberations concluded around lunchtime on Monday. It would have been simple to make the announcement while it was still daytime. Still, McCulloch said that he would not announce the grand jury’s decision until 8 p.m. CT.
….
The predictable reaction ensued. Protests began, some of them violent. Police responded with tear gas. Fires burned. Cars were destroyed. Gunshots were heard. The full scale of the damage was difficult to assess last night.

The ultimate verdict on the grand jury’s decision is up to history at this point. But the verdict on McCulloch opting to announce the decision at night is clear — and devastating.

That is spot on. Insane is a word that I have been using a lot in respect to this case, but it certainly applies to McCulloch’s dog and pony show timing.

Next is the actual grand jury materials and content, and what they mean to the injustice that has occurred in this matter. That one is going to take a lot longer to suss through and put together. I have read a few bits and pieces, notably much of Darren wilson’s grand jury testimony, but there are thousands of pages of material, and it will take me days to get through it properly. More will come, but for now, I want to give a couple of links to the full set of materials put together by others.

Here is the New York Times version. I think it is the best formatted and easiest to navigate so far.

Here is the NPR version from the St. Louis affiliate.

Here is the Guardian version.

They are all fine links from which to navigate and I link all three because they went to great trouble to do a public service in a short amount of time. They are owed thanks. The one substantive comment I will make for now is the way the standing prosecutors, Kathi Alizadeh and Sheila Whirley, spoon fed the witnesses, and especially Darren Wilson, and otherwise slanted everything imaginable, to support the exoneration of Wilson is just disgusting. I have read countless grand jury transcripts over the years, and I have NEVER seen anything that remotely resembles this kind of biased, for the defendant, dog and pony show. Again, it is simply insane and unheard of.

Okay, this entire grand jury was a farce, a charade, and a lie. It was a cravenly engineered whitewash by Bob McCulloch from start to the criminally reckless end with Ferguson in flames last night. And do not, like so many on social media seem to be doing, think the DOJ is going to bail the situation out by indicting Darren Wilson on federal charges. Even DOJ veterans say it is unlikely. I say there is not a chance in hell of an indictment against Wilson personally.

In closing, a few words by my friend Scott Greenfield from his excellent criminal defense blog Simple Justice:

Americans may be a smart, educated people, but we are lazy and ignorant. It’s too much effort for our delicate sensibilities to gain a deeper understanding of how our nation functions. This is why the Ferguson Lie happened. This is why the Ferguson Lie works.

That the grand jury did not indict Ferguson Police Officer Darren Wilson was a foregone conclusion. To those of us who don’t have to look up a study or read a law review article to understand how indictments happen in the real world, the outcome was clear when St. Louis County District Attorney Bob McCulloch announced that he would present all the evidence to the grand jury. Wachtler’s “ham sandwich” has grown trite in this discussion.

The Ferguson Lie is an appeal to our sense of fairness and transparency. We were played. McCulloch’s lengthy spiel before announcing “no true bill” was to spread the lie. To the ear of the media, McCulloch’s pitch was appealing; the grand jury heard all the evidence. The grand jury transcript will be disclosed to provide complete transparency. Witnesses lied to the media, but the grand jury heard the truth. The grand jury saw the hard evidence. Nine whites and three blacks, so no one would think that the grand jury was denied the voice of people of color, sat on the grand jury, which met for 25 sessions and more than 70 hours of testimony.

The grand jury did the dirty work that America needed done. The grand jury has spoken.

This is the lie.

Go read all of Scott’s piece, it is superb and exactly how I feel too.

For now though, I have to get off to court. There will be much more, but I am not sure when given the time to cull through the materials and the holidays. Until then, happy hunting in the treasure trove of documents, and post your findings and discussion in comments.

White Georgetown Student Sentenced to One Year, Tutoring Underprivileged Kids for Ricin Offense

Tell me what kind of charge (much less sentence) you think this kid would get if he were a Muslim immigrant.

Daniel Milzman, 20, was sentenced today to one year and one day in prison on a federal offense stemming from the discovery of a plastic bag of lethal ricin in a dormitory room where he was staying while he was a student at Georgetown University.

The sentencing was announced by U.S. Attorney Ronald C. Machen Jr. and Andrew G. McCabe, Assistant Director in Charge of the FBI’s Washington Field Office.

Milzman, of Bethesda, Md., pled guilty in September 2014 in the U.S. District Court for the District of Columbia to a charge of unregistered possession of a biological agent or toxin. He was sentenced by the Honorable Ketanji Brown Jackson. The plea agreement, which was contingent upon the Court’s approval, called for a prison sentence falling somewhere within the range of a year and a day to two years of incarceration.

Following the prison term, Milzman will be placed on three years of supervised release. Judge Jackson ordered that Milzman complete 400 hours of community service during that time, to be focused on tutoring underprivileged students in math and physics. She also required him to participate in a mental health program.

This is the kind of argument you get to present if your parents are local doctors who’ve gotten you good lawyers and a bed in an inpatient program at your mother’s hospital.

Milzman is nineteen years old and has had no prior involvement with the criminal justice system.  He was born in Virginia and raised in Maryland, having graduated from Walt Whitman High  School. At the time of the alleged offense, he was enrolled at Georgetown University along with his two older brothers. His parents, both doctors, reside in Bethesda and work at hospitals in the District of Columbia.

Based on representations Mr. Milzman made to agents at the time he was confronted in his dorm room, he was transferred to the Psychiatric Institute of Washington (“PIW”), where he remained voluntarily until agents unexpectedly apprehended him. Prior to his apprehension, doctors at PIW believed Mr. Milzman had progressed to a point where he could return home but maintain outpatient mental health counseling. Nevertheless, Mr. Milzman and his family were exploring opportunities for continued inpatient treatment at local facilities. Arrangements were being made for Mr. Milzman to move directly from PIW to an inpatient program at Sibley Hospital.2

As a result of his arrest, however, Mr. Milzman has been held for five (5) days in the  Medical Unit at the D.C. Jail.3 Rather than receiving appropriate and beneficial mental health  treatment and counseling, this nineteen-year-old student has been held in solitary confinement  and has had no contact with his family. For the foregoing reasons, we ask the Court to affirm  Mr. Milzman’s release pending trial.

And if you’re wondering where he was “radicalized,” it was by watching Breaking Bad.

Between February 13, 2014, and February 19, 2014, the Defendant performed a number of Internet searches on his personal computer, some of which were focused on the following key words and phrases: (1) “O-Toluc acid,” (sic.) (2)”Phenylacetic acid,” (3) “anarchist cookbook,” (4) “Recipes for Disaster,” (5) “Ricin,” (6) “Ricin#Overdose,” (7) “2003 Ricin letters,” (8) “Lily of the Valley#Toxicity,” (9) “2013 Ricin letters,” (10) “incidents involving ricin,” (11) “incidents involving ricin#April 2013. 2C Washington, DC,” (12) “how to throw a tail,” and (13) “Lose someone when being followed.” Also, during the period January 1, 2014, through March 18, 2014, Milzman used a Netflix account to watch various episodes of the television show, “Breaking Bad.” In approximately thirteen of the “Breaking Bad” episodes the Defendant watched during that time period, the plot contained references to ricin being used to injure or kill someone.

Now, to be very clear, this kid has a history of major depression. That was clearly not invented to dodge the charges. He, like many of the young Muslims who get caught in stings with “WMDs,” needs treatment for mental illness, not a long sentence.

In other words, this is what should happen when mentally ill kids do stupid things, including potentially contemplating using homemade ricin to injure a spurned associate (as the RA who reported this believed he intended to do). More power to Milzman’s family for having the resources to arrange a settlement like this.

But it is a lesson in the disparities built into our system.

More Catcalling Debate Room Needed at New York Times

[Update below]
So, the New York Times today has up another in their series called “Room For Debate”. Today’s topic is “catcalling”, and the supposedly relevant question for debate is “Do We Need a Law Against Catcalling?” The ‘debate” is based on the “catcalling video” that has gone somewhat viral the last couple of days. First off, let us stipulate that catcalling is disgusting and reprehensible, and there seems to thankfully be a bipartisan consensus on that. But does the New York Times make it a fair debate when it comes to criminalization of public speech? No, of course not, there are three contributors who specialize in seeking to restrict clear First Amendment speech on this subject against one token policy guy from the ACLU who gives the “whoa, hold on there” position. Hardly a “fair and balanced” fight, but the framing itself makes it crystal clear the Times did not want a fair fight.

Frankly, the fact that the NYT was determined to push the knee jerk attack on free speech side was patently obvious from the fact of their title “Do we Need a Law Against Catcalling” and that is exactly what they put up. Which, considering that the New York Times has led the pantheon of First Amendment law for decades, is a rather astounding and depressing thing. I guess the Times’ love and protection of the First Amendment tails off quickly when their own rear ends and press rights are not on the chopping block. A disturbing position.

This is but the latest example of a growing victim culture trend that is willing to abandon the founding Constitutional principles, and shift inherent burdens of proof, out of emotional angst. There is the attempt to criminalize speech in via so called “revenge porn” laws. There is the astoundingly intellectually backward desire of Ezra Klein to eliminate due process and shift the burden of proof onto the accused – presumed guilt – in state government sponsored punitive proceedings in state universities. And now this.

These are all feel good laws fighting against things that are detestable – revenge porn, non-consensual sex and flat out rape on college campuses, and verbal harassment of women on city streets and in public places. Those are all terrible things that we should all be firmly against, and I am. But just because there are terrible things out there in our world does not mean there is always an appropriate path to eradicate it through ever more broad and vague criminal laws. That is a path our founders took great care to protect against, and one we would do well to keep in mind when emotions try to overcome Constitutional protections.

So, in conclusion, no, we most certainly do NOT need a law against catcalling. Furthermore, in the true spirit of Halloween, I boo and hiss in the general direction of the hypocritical New York Times, who apparently view the First Amendment as protecting them, but not the rest of us non-journalist common citizens.

[Note: It is my belief that this will be one of multiple entries from a group of friends who are either practicing criminal defense attorneys, or heavily involved in the criminal justice system. Our own “More Room For Debate” if you will, because the Times will never seek out actual practicing criminal defense lawyers when talking about, you know, criminal laws. Those in for the debate, or hopefully contemplating it, are: Scott Greenfield from Simple Justice, Gideon from A Public Defender, and Liliana Segura from The Intercept. All of these people, and their blogs, are simply superb, and you should be reading them. When and if they post their entries at their sites, I will update with links here]

Update 1: And Scott Greenfield has weighed in with his take.

Criminal Docket Talk

Another week, another series of missteps and embarrassment for the National Felon League. More facts surface showing Adrian Peterson to be a backwards horrible human, the Cardinals’ Jonathan Dwyer is charged with felony assault for head butting his wife and breaking her nose and Roger Goodell held a news conference yesterday where he came off as even a bigger dissembling jackass than he seemed before.

Lost, at least somewhat, in the relentless shuffle of negativity surrounding the NFL were significant developments in the Ray Rice case that set everything off to start with. As an excellent report by ESPN’s Outside The Lines lays out, both the Baltimore Ravens and the NFL knew everything about the Rice incident immediately and colluded to minimize the impact on Rice. From the New York Daily News:

According to the ESPN report, the Ravens’ director of security, Darren Sanders, was made aware of the inside-the-elevator video just hours after Rice clocked his then-fiancée, Janay Palmer, at the now-closed Revel Hotel and Casino in Atlantic City in mid-February. Sanders, according to the report, had reached out to an Atlantic City police officer, who described in detail what transpires in the elevator video. Sanders then conveyed the information to Ravens executives, according to ESPN, although the report does not name which individuals Sanders contacted.

The report describes how Ravens owner Steve Bisciotti, team president Dick Cass and GM Ozzie Newsome worked behind the scenes to try to have their star running back get off with a lenient punishment. According to ESPN, the three men campaigned with prosecutors in Atlantic City — where Rice was charged with assault — as well as with Goodell, since he would mete out punishment for Rice, and with organizational personnel.

The full NYDN article linked above is worth a read, and the long form detailed ESPN OTL article is chock full of further details and a tick tock from the night of the incident through the present day. Literally the only person who seems to have consistently been honest in this mess is Ray Rice. As I said in last week’s Trash Talk, I think he has a pretty good chance in his appeal with the league and the Ravens over his suspension in light of the Article 46 §4 single penalty clause. The Players’ Union formally noticed that appeal last Tuesday, and it is supposed to be heard within ten days.

Hey, it is not just the NFL that is chock full of criminals, the NBA has them too! Rex Chapman, former sharp shooting guard for the Bullets and Suns, and former NBA team executive, just got arrested for shoplifting $14,000 (yes, $14,000!!) of Apple products in Scottsdale. Oh, and career criminal Jameis Winston is in trouble again.

Welp, in addition to all the criminal docket activity, there is purportedly actual football to be played. It seems kind of secondary any more.

The Florida Gators are in Tuscaloosa and look ripe to get rolled by the Tide. I actually think the BYU and Virginia game may be decent. Don’t sleep on the Cougars, they have a good team and a favorable schedule this year. They are capable of going undefeated, but the Cavaliers will be a test. FSU may not have Career Criminal Winton at QB, but they should have enough at home to get past Clemson. Mississippi State could be a tough matchup for LSU.

The big game in the National Felon League is, of course, the rematch of the Super Bowl when Peyton and the Broncs meet the Seasquawks in Seattle. This game will be a lot closer that the SB was; I rate it a toss up, but would not be surprised if Peyton pulls off the win. The surprising Bills host the Chargers in an early game that should be pretty interesting. The Packers are in Detroit. Both teams are 1-1 and need the win. As much as I hate to say it, I think Detroit is the better team right now, and it will show. But Aaron Rodgers is starting to heat up again, so it could go either way. While the rest of the country is watching Peyton versus the Squawks, I will be stuck with Niners at the Cards. Carson Palmer is out again it appears for the Cards, and Drew Stanton will start for a second week in a row. With Palmer, I would like the Cards, but not sure there will be enough offense without him, so I will take the Niners there.

Well, that is enough. Talk some trash amongst yourselves.

Are New Sealed Filings in Barry Bonds Appeal More Dirty Tricks By DOJ? Update: YES!

The handling of the BALCO series of investigations, both by lead investigator Jeff Novitsky and the US Attorneys office, has been relentlessly aggressive and marked by dubious, at best, tactics. Considering that the DOJ, during the entire time period, could not find the resources to prosecute the banksters who brought down the entire economy, BALCO was one of the most hideous wastes of taxpayer money imaginable.

Remarkably, the questionable tactics by DOJ may well be raising their ugly head yet again. Bonds’ appeal in the 9th Circuit is a somewhat mundane legal issue that has been fully briefed on the en banc petition for the better part of a year. The en banc hearing, before KOZINSKI, Chief Judge; and REINHARDT, O’SCANNLAIN, GRABER, WARDLAW, W. FLETCHER, RAWLINSON, CALLAHAN, N.R. SMITH, NGUYEN and FRIEDLAND, Circuit Judges is set for 2:00 pm tomorrow, Thursday September 18, 2014

Yet, less than 48 hours before the en banc rehearing is scheduled to commence, the DOJ has suddenly, and mysteriously, lodged sealed filings at 8:00 pm last night. These are Docket Numbers 64 and 65 respectively:

Filed UNDER SEAL Appellee USA motion to file a letter to the court under seal (PANEL). Deficiencies: None. Served on 09/16/2014. [9242886] (JFF)

Filed UNDER SEAL Appellee USA letter dated 09/16/2014 re: constructive amendment argument. (PANEL) Paper filing deficiency: None. [9242910] (JFF)

Here is Bonds’ Petition for Rehearing En Banc. Here is the previous panel decision in the 9th Circuit. If you don’t want to bother with the full pleadings, this article from the Orange County Breeze gives a nice synopsis of the scope of the en banc proceeding for Bonds.

As can quickly be discerned, the appeal centers really on common statutory interpretation as applied to the facts in the public trial record. The issue is whether there was sufficient evidence to convict Bonds because his statement describing his life as a celebrity child — in response to a question asking whether his trainer ever gave him any self-injectable substrances — was evasive, misleading, and capable of influencing the grand jury to minimize the trainer’s role in the distribution of performance enhancing drugs, and whether, under the law, that can properly constitute obstruction. I wrote an extensive piece arguing the weakness and infirmities of the verdict at the time it was handed down by the jury. Which is when the jury also acquitted Bonds of all the substantive underlying perjury counts.

Yes, the appeal is really that simple. So why, pray tell, does the DOJ need to be interjecting last minute sealed documents? What possible need could there be for anything to be sealed for this mundane criminal appeal? There may be a valid explanation, but it is nearly impossible to fathom what it could be.

I am willing to bet Bonds’ attorneys, Allen Ruby and Dennis Riordan, must be apoplectic.

UPDATE: Well well, I am sitting in Alice Cooperstown having lunch, waiting for my preliminary hearing to reconvene, and Josh Gerstein just sent me the answer to the question of this post. YES! Indeed the sealed filings are a slimy last minute trick pulled by the DOJ. DOJ was trying to insert grand jury testimony from the aforementioned government BALCO investigator, Jeff Novitsky, into the appeal when it has never, at any point of the proceedings, whether in the trial court or 9th Circuit, been part of the record or indictment.

Here is the responsive pleading just filed by Bonds’ attorney Dennis Riordan. Here is the pertinent part:

The grand jury transcripts referred to in the government’s motion and letter are not part of the record on appeal. Had they been before the district court in any form, the proper method of adding them to the appellate record would have been by means of a timely motion to correct or modify the record under Rule 10(e) of the Federal Rules of Appellate Procedure. The transcripts which are the subject of the government’s motion, however, were never placed before the district court in either pretrial, trial, or post-trial proceedings. Notably, the declaration of AUSA Merry Jean Chan which accompanies the government’s motion makes no claim that the transcripts were filed with the district court. “Papers not filed with the district court or admitted into evidence by that court are not part of the clerk’s record and cannot be part of the record on appeal.” Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (citing, inter alia, United States v. Walker, 601 F.2d 1051, 1054–55 (9th Cir.1979)).

Should the Court nonetheless wish to consider the transcripts in question, they fully support Mr. Bonds’s argument that the district court constructively amended the indictment by instructing on “Statement C” as a basis for conviction on the Count Five obstruction count, although that statement was not contained in the indictment. In his testimony, in discussing Statement C, then labeled “Statement F” before the grand jury, Novitsky admitted that Mr. Bonds had responded to the pending question—“Did Greg ever give you anything that required a syringe to inject yourself with?”—with a “denial” before veering off into a digression about “being a celebrity child.” (RT of February 3, 2011, at 110.) Novitsky’s admission that the prosecutor’s question was in fact answered by Mr. Bonds constituted a good reason why the grand jury would not have relied on Statement C in indicting on the obstruction charge. The only manner of accurately ascertaining whether a grand jury relied on an act in indicting is by the inclusion of that act in the indictment itself. Here, Statement C was expressly excised from the indictment by the use of asterisks. See Appellant Bonds’s Petition for Rehearing En Banc, at 16.

Hilarious. DOJ tries a patently inappropriate punk move and Dennis Riordan turns it around to bite them in the butt. Quite well deserved. You have to hand it to the DOJ in the BALCO cases, they are nothing if not consistently ethically dubious.

The National Felon League: Week 2 Trash Talk

Welp. Not a particularly banner week for the National Football League. In fact, I am not sure I have ever seen a league, any league, take quite the self inflicted beating that Goodell and the NFL have this week.

The Ray Rice affair was already quite the ugly black eye before all hell broke loose, and appropriately so, with the release of the TMZ tape clip from inside the elevator at the Revel Casino in New Jersey. Marcy already covered the tape and some of its implications. I don’t have a ton to add here, but I do have a couple of things to say. First, the NFL and Goodell are just flat lying through their teeth about the video. I have dealt with pro security offices before, including one in the NFL. They are almost always run by either ex-FBI or ex-state police. Experienced people that know what they are doing and are very connected to police and other local authorities (say, for instance prosecutors). If the Ravens and NFL security wanted the video, they would have the video, whether from the Atlantic City Police or from the Revel Casino itself. The thought they couldn’t get it is absurd. And that is irrespective of the law enforcement member that says he gave it to the NFL.

Secondly, a lot of people are shocked and outraged that Rice was give a diversion plea. Frankly, I am not all that shocked; diversion is not at all uncommon where there are no serious physical injuries, no prior convictions and the victim uncooperative as to prosecution and requests that diversion be given. That is certainly the case here, and from talking to a couple of experienced attorneys in New Jersey, it is not at all unheard of there. Here is the actual prosecutor’s reasoning for doing so. Here is a TMZ report citing anonymous junior prosecutors in the Atlantic County DA’s office saying it is very rare and expressing outrage. Frankly, in Arizona, I think the Rice case would be filed as a misdemeanor to start with and while diversion would be discretionary, it would not be uncommon. Time, and their own conduct, will tell if diversion was the right Continue reading

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Emptywheel Twitterverse
emptywheel RT @AthertonKD: An @charlie_simpson discussion about problems with big companies play limited liability instead of deterrence https://t.co/
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emptywheel RT @JoeBeOne: “a cyberattack caused [widespread] physical damage to an iron plant in [Germany]” http://t.co/QNnDNevUDd
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JimWhiteGNV I'm starting to have serious doubts about Treon Harris' judgement. McElwain has some thinking to do.
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emptywheel @ncweaver I think China has a much bigger incentive to remind the US how fragile our IP-based dominance is.
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emptywheel RT @bungdan: I'm 1000% for Cuba normalization, but, pls: Capitalism in Vietnam and China did not turn them into human rights paradises.
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emptywheel @ncweaver It's an attack on a business model for which IP is the foundation. Much of what got doxed was IP related.
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emptywheel @kevinjonheller Sure. But I've got 2 days to trash talk you, especially cause next years the @ChicagoBears are bound to be better.
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emptywheel A China link--given that this is abt IP, not a stupid movie--is a more logical claim than NK. NK is convenient patsy tho.
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emptywheel @speechboy71 No cyber bill would have prevented this. Simple locks would have limited damage. @charlie_simpson @HerbCarmen @DenisonBe
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emptywheel @speechboy71 Far far far better is that Sony totally negligent in terms of security @charlie_simpson @HerbCarmen @DenisonBe
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emptywheel @kevinjonheller Nevertheless, I will hold you responsible, even if I'm not crazy abt Harbaugh. Why not? @ChicagoBears
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emptywheel @dandrezner Until we get corps--especially ones that, unlike Sony, are critical infrastructure--to worry abt their risk, this will recur.
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