Archive for March 1st, 2014

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Be afraid

March 1, 2014

The U.S. government keeps using its forfeiture laws to stack the deck against people it has accused but hasn’t yet convicted. All a prosecutor needs to do to financially cripple a defendant is to convince a grand jury to indict, usually a much easier job than convincing a jury to convict.

The Big, Bad Freeze

Justice for Kerri and Brian Kaley, the Supreme Court held Tuesday, is of the Alice in Wonderland variety: First comes the punishment—the seizure of all their assets—then the trial, and the crime last of all.* “But suppose they never committed the crime?” Alice asks. “It doesn’t matter,” comes the court’s answer, “because a grand jury said so.”

Writing for a six-justice majority in Kaley v. United States, thus concluded Justice Elena Kagan that a criminal defendant indicted by a grand jury has essentially no right to challenge the forfeiture of her assets, even if the defendant needs those very assets to pay lawyers to defend her at trial. In an odd ideological lineup, the dissenters were Chief Justice John Roberts and the more liberal Justices Stephen Breyer and Sonia Sotomayor.

The Kaleys’ saga began more than nine years ago when Kerri, a medical device salesperson, learned that she was under investigation by federal authorities for stealing devices from hospitals. Kerri admits she took some devices and later sold them with Brian’s help, but she says the devices she took were unwanted, outdated models that the hospitals were glad to be rid of—in effect, that she couldn’t steal something that was given to her. (It’s not a crazy argument. In fact, it worked for a co-defendant, who was quickly acquitted by a jury after the government failed to find even a single hospital that claimed ownership of the allegedly stolen goods.)

Since the court didn’t put a stop to this, it looks like it’s going to take an act of Congress.

See also Harvey Silverglate’s piece about this from last fall.

How Prosecutors Rig Trials by Freezing Assets
Is it fair to seize all a defendant owns without showing its criminal source? The Supreme Court will rule.

On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant’s assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?


Update (3/8/14)

Ken White at Popehat describes the problem with this decision pretty concisely in this post from Feb. 27th.

The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich

Yesterday, in Kaley v. United States, the United States Supreme Court ruled 6-3 that a criminal defendant has no right to challenge the pretrial freezing of assets based on a forfeiture allegation in a grand jury indictment, even if the criminal defendant needs those very assets to pay his or her attorney of choice.

The question presented was not whether assets can be frozen before trial — it’s old news that they can — or whether they can be frozen even if it deprives the defendant of the ability to pay counsel. The question presented was whether the defendant could ask the judge to review the grand jury’s probable cause finding in the course of challenging the freeze. The Court found that the defendant had no such right, because of the trust we place in the grand jury: […]

Others […] have explained what this means: prosecutors can deprive you of the effective defense of your choice by aggressive use of forfeiture statutes. I have seen it done to my clients.

Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I’d like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a “historical role of protecting individuals from unjust persecution” — is not a polite fiction. A polite fiction would have some grounding in reality. It’s an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.

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Privacy today

March 1, 2014

Reason.tv interiews Ladar Levison about his Lavabit service and why he shut it down.

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The Snowden revelations continue

March 1, 2014

Glenn Greenwald writes at his new site (The Intercept) about more things he’s discovered in the documents leaked by Edward Snowden. RTWT.

How Covert Agents Infiltrate the Internet to Manipulate, Deceive, and Destroy Reputations

One of the many pressing stories that remains to be told from the Snowden archive is how western intelligence agencies are attempting to manipulate and control online discourse with extreme tactics of deception and reputation-destruction. It’s time to tell a chunk of that story, complete with the relevant documents.

Over the last several weeks, I worked with NBC News to publish a series of articles about “dirty trick” tactics used by GCHQ’s previously secret unit, JTRIG (Joint Threat Research Intelligence Group). These were based on four classified GCHQ documents presented to the NSA and the other three partners in the English-speaking “Five Eyes” alliance. Today, we at the Intercept are publishing another new JTRIG document, in full, entitled “The Art of Deception: Training for Online Covert Operations.”


This seems like just the place for this cartoon. (Click for a larger view at its source.)
5-stages-nsa

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Moore on AGW

March 1, 2014

On Wednesday, The Washington Times reported that Patrick Moore made a statement to a Senate committee this week.

Greenpeace co-founder says ‘no scientific proof’ humans cause climate change

A co-founder of Greenpeace told a Senate panel on Tuesday that there is no scientific evidence to back claims that humans are the “dominant cause” of climate change.

Patrick Moore, a Canadian ecologist who was a member of Greenpeace from 1971-86, told members of the Senate Environment and Public Works Committee environmental groups like Greenpeace use faulty computer models and scare tactics in further promoting a political agenda, Fox News reported.

Here’s Mr. Moore’s full statement (in PDF) from the Senate’s site.

Naturally, this caused some reaction on the ‘net. MediaMatters response is:

Who Is Patrick Moore? A Look At The Former Greenpeace Member’s Industry Ties And Climate Denial
Patrick Moore’s Climate Misinformation Is Nothing New

Conservative media are latching on to the climate change denial of Patrick Moore, who has masqueraded as a co-founder of Greenpeace. But Moore has been a spokesman for nuclear power and fossil fuel-intensive industries for more than 20 years, and his denial of climate change — without any expertise in the matter — is nothing new.

And at Watts Up With That, we have:

Confessions of a ‘Greenpeace Dropout’ to the U.S. Senate on climate change

Our friend Dr. Patrick Moore, co-founder of Greenpeace, went before the U.S. Senate yesterday to tell his story as it relates to global warming/climate change. It is well worth your time to read. WUWT readers may recall that since Dr. Moore has decided to speak out against global warming and for Golden Rice, Greenpeace is trying to disappear his status with the organization, much like people were disappeared in Soviet Russia.

I won’t try to argue my view of global warming since I’m no expert. It’s a very complicated topic and not all the experts agree. But I liked John Christy’s statement to the same Senate committee in August of 2012.

Christy and Roy Spencer maintain a dataset of satellite temperature measurements.

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