Entries categorized "News & Current Events"

Defuse the ticking time bomb

Defenders of torture inevitably raise the dreaded "ticking time bomb" scenario.  Leaving aside questions about the plausibility of such a scenario (I have my doubts, but I'm not privy to classified intelligence), there is an obvious solution that doesn't involve legalizing torture.

At common law, courts have long recognized the defense of necessity (sometimes called "choice of evils".)  For example, a jury may refuse to convict a criminal defendant if: 1) he was faced with a clear and imminent danger; 2) he reasonably thought his action would abate the danger; and 3) there was no legal alternative.   See Commonwealth v. Pike, for example.  In the context of torture, see the opinion of the Supreme Court of Israel in Judgement on the Interrogation Methods Applied by the GSS. 

If instructions on the necessity defense were allowed in prosecutions for torture, no jury would convict a defendant who could show he was faced with a true "ticking time bomb" scenario.  Yet this is very different from prospectively legalizing torture, since the putative torturer, faced with the prospect of a criminal prosecution, would be less likely to proceed without a genuine justification.

Unfortunately, the Supreme Court effectively ruled out a general necessity defense to federal criminal law in United States v. Oakland Cannabis Buyers' Cooperative.  But there is nothing to stop Congress from enacting a necessity exception to the federal torture statute.  Provided the government aggressively prosecutes torture cases (including those involving the CIA), I would support such an exception.  I'm guessing it would get used quite infrequently, if ever.

UPDATE: Just to be clear: When I suggest that Congress enact a necessity exception to the torture statute, I mean an exception that allows for a necessity defense to be raised by a criminal defendant, not an exception that prospectively precludes prosecution.

A Season for Dissent

Criticisms of the government are needed - indeed, required.  Only sheep remain silent.  But there is  an appropriate time and place for everything - even speaking out.  Some people just don't get this.

A radical liberal used Memorial Day to attack President Bush's foreign policy.  Though no fan of the Iraq War, I saved my complaints for the other 364 days of the year.  That seemed a small price to pay in the name of decency.

Sadly, another group of rabid liberals want to hi-jack the 9-11 Memorial.  Instead of remembering the dead, they want to mock them.  Instead of building a monument or a reflection pond, where we can ponder and cry over the loss of American citizens whose only crime was going to work, these people want to speak of American atrocities.

Yes, America, like every other country, has blood on its hands.  We should confront our hurtful past, as President Bush did when he apologized to Japanese-Americans who were placed in concentration camps.  But the 9-11 Memorial isn't a place for apologies.  It's a place for remembrance. 

Sue the Plaintiff

A month or so ago, a woman claimed to have found a finger in her bowl of Wendy's chili.  Thinking people were skeptical: how could a finger appear in chili?  Unlike a booger, a prankster can't flick a finger into a bowl of chili.  And unlike a band-aid, fingers don't just fall off. 

Ultimately, the woman dropped her lawsuit.  Last night she was arrested for filing a flase report.

Good for the police.  Filing a frivolous lawsuit harms injured plaintiffs, as the taint attaches to valid claims.   What's worse, according to this CNN.com story:

Sales have dropped at franchises in Northern California, forcing layoffs and reduced hours, the company said.

The victims are the employees who can't return to work because Wendy's chili is associated with something Leatherface would have cooked up.  I wonder how many rent payments will be missed because of this foul woman?  Wendy's and trial lawyers need to unite.  This loathesome creature needs to be held to answer.

I think Wendy's should sue the vexatious plaintiff, seeking lost profits and reputational damage.  Moreover, ATLA and individual trial lawyers should stand behind Wendy's.  If you file a frivolous lawsuit, the next defendant appearing in court will be you.

If trial lawyers don't take a firm stand against this woman, her stench will rightfully attach to them.  Though sadly, injured clients will be the ones to suffer.

Letter from Elián González

Dear General Reno and other heros of freedom:

Thank you for returning me to Cuba.  Living in a communist dictatorship is really cool.  As you can see in this photo, I am very happy here.  Some might think that living in a dictatorship is unpleasant.  Those people would be wrong.

In America, you have too many choices.  For example, in the picture where I'm sitting next to Fidel Castro, no one asked me if I wanted to sit next to him.  And I also did not have any choice to turn down this newspaper interview.  In America you get to criticize your leaders and decide whether you like them.  But that just leads you to an existential crisis.

I do realize my mom died trying to bring me to America.  But my dad and uncle Fidel have shown me that she was misguided.

So thanks again for returning me to Cuba.  I'm sure I'll have a nice life doing whatever the government tells me to do.

Prisoner González


I wish that as a high-schooler, I would have had the courage to photograph my principal smoking a cigarette in violation of school rules and state law; post the pics to my website; get suspended from school; and then call the ACLU.  What a wild ride. 

See here (ACLU site) and here (student's blog) for details.

When the Leak is the Story

Tax investigations are private matters.  Strict rules prevent federal officers from telling us that a citizen is under investigation.  And for good reason -- Lots of innocent people are investigated.  It should go without saying that it's called an investigation for a reason.

Yet the LA legal community knows that one of its stars was under investigation for tax evasion.  [No, I'm not going to further harm this lawyer's reputation by naming him.] We know because in May '03, someone told a Los Angeles Daily Journal reporter.

Why was this leaked?  We don't know, but there is one very juicy theory.

After the leak, the United States Attorney's office moved to disqualify this attorney from further civil rights litigation, writing that: "Where ... an attorney opposing a prosecutor's office in an action is being investigated by the same prosecutors office [there is a possibility for a conflict of interest.]"  In other words, the government argued that this lawyer might sell out his clients for a better deal.

The judge who heard the motion flipped out, and threatened the AUSA bringing it with sanctions.  Suggesting that this civil rights legend would sell out anyone to the government, was, at best, scandalous.  Anyhow, you probably smell fish.

Hmmm.... first a leak and then a motion to disqualify.  Indeed, shutting down this lawyer would have been a tactical coup.  Judge Alex Kozinski noted that this lawyer "has a formidable reputation as a plaintiff’s advocate in police misconduct cases; defendants in such cases may find it advantageous to remove him as an opponent." 

The government lost the motion, and the lawyer's clients sued several AUSAs. The clients alleged that the AUSAs leaked information about the investigation as a litigation strategy, and that this strategy violated their right to counsel. 

Now the lawyer wants to know who squawked to the reporter at the Daily Journal.  The Daily Journal is resisting this effort.  They've hired Los Angeles' top litigation botique to resist the subpoena.  They got to protect sources, because protecting sources will lead to more news.

What's newsworthy -- That a local attorney is under investigation for tax evasion, or that someone potentially within the government is leaking information about confidential investigations? According to the Daily Journal, serving the dish about a celebrity lawyer is more newsworthy than exposing moles.

To me, that someone within the federal government is leaking confidential information about an American citizen is more newsworthy than a garden variety tax case.  So why doesn't the Daily Journal publish a real story -- Come on, folks, tell us who's spilling the beans.

$600,000 Verdict in Retaliation Case

Since grade-school we've all been taught to see the world in two shades -- The police are the good guys, and they fight the bad guys.  What happens when the good guys start breaking the law? What happens when a police officer tries exposing corruption within the police department?  What happens when a local police officer helps the FBI and the United States Attorney's office?

That's simple -- He's tossed out.  There's no greater crime than crossing the thin blue line.  Didn't this guy learn anything at the police academy?  Yesterday, however, a jury countered, "Thin blue line?  What about the First Amendment?"

A former Hartford police detective who claimed that he was fired because he helped blow the whistle on police corruption in Hartford won nearly $600,000 in punitive and compensatory damages Wednesday from a federal jury in Bridgeport.

The jury, which deliberated for more than 11 hours in U.S. District Court, found that the city of Hartford, former Hartford Police Chief Joseph F. Croughwell and former Lt. David Kenary should be held financially liable for retaliating against Nicholas Russo after they found out that the detective had offered his help in a federal probe against the police department.

The story gets better.  Norm Pattis was the lead trial lawyer.  Although Norm has a reputation for his skills in winning excessive force cases, he also frequently represents police officers who have been harmed for doing nothing more than tell the truth.  And he has another win.  Congratulations, Norm!

Devon Brown Shooting - The Facts

Devin Brown was shot dead in Los Angeles several weeks ago.  The shooting outraged many in Los Angeles, and his mom has filed a civil rights suit against the police.  Devin Brown's estate is well-represented -- The Cochran Firm took the case.

I'm going to examine the facts and the law, to see if Brown's estate can state a claim under 42 U.S.C. 1983.  Since no one really knows what happened, I'm going to favorably characterize the facts first for the plaintiff, and then for the defendants.

The Facts

The plaintiff's version.

Devin Brown was a thirteen year old student.  Still in junior high, he was well-liked by his parents and classmates.  He had a remarkable smile that could cheer up even a grouch. 

Unfortunately, Devin made a youthful mistake and took a car that did not belong to him.  Since he had never driven before, he wasn't driving steadily the way experienced drivers would.  When he saw the police behind him, he paniced and did not know what to do.  He just kept driving, frozen with fear.  His youthful face was ashen.

Finally, he lost control of the car and it slid to a halt.  Scared and confused, he frantically started pulling knobs and pushing buttons on the vehicle.  These knobs felt so strange to his youthful fingers.  It appears that car started back up, though Devin wasn't trying to make it.  Finally, the car backed up into a squad car.

Fortunately, no one was in the police car when it was struck.  No one was hurt.

Then a police officer opened fire on Devin. Rat-tat-tat-tat-tat-tat-tat-tat-tat-tat.  Ten times the police officer shot at poor Devin.  Even though department policy, drafted by experienced law enforcement officers, required police to think before firing every shot.  Even one stray bullet can kill the innocent, and so the chief of police required thinking before shooting.

But the officer violated official policy.  And his aim was poor.  He ended up shooting a nearby squad car five times.  Poor though his aim was, several bullets hit poor Devin. 

Little Devin, only thirteen years old, was soon pronounced dead.

The defense version.
At 4 a.m. police officers began following a car that was weaving erratically.  Suspecting that the driver was drunk, the police signaled for the car to pull over.  Instead of pulling over, the driver - who police later learned had stolen the car - led the police on a high-speed chase through a residential neighborhood.

Finally, the driver lost control of the car, which started skidding and then slid to a halt.  The driver put the car in reverse and began backing up towards the police officers.  He slammed into the police car.

Fearing for their safety and scared that the driver might harm innocent residents, police officers began shooting at the car.   Tragically, the driver died. 

Had the police officers know Devon's age, they might have acted differently.  But they didn't.

What they did know was that the car was driving out of control in a residential neighborhood, and that it had attempted to run over police officers.