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1st Circuit Issues 57 page Opinion About Toilets and a 7 Day Jail Sentence

On a lighter note, via How Appealing: Senior U.S District Court Judge Richard Kopf (Nebraska)has a blog about the role of a federal judge called Hercules and the Umpire. A few days ago he wrote a post opining that no misdemeanor and 7 day jail sentence for abuse of a toilet and bathroom warrants 57 pages in an appellate decision. The opinion at issue: U.S. v. Strong, decided last week by the First Circuit Court of Appeals. Judge Kopf describes the case:

In Strong, the defendant was convicted of three misdemeanors, and received a sentence of seven days in jail, for literally messing up a bathroom in a federal court-house. He claimed to have a problem with his bowels, but the government saw his conduct in a more malicious light.

Judge Kopf also includes some personal details in his post, including that he's a "toilet freak" and the worst part of moving from being regular District Court Judge to senior status was losing his private bathroom.

I decided to read some more of Judge Kopf's blog. Parts of it are really funny.

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Sentencing Deal for Jeff Skilling Appears Likely

Former CFO of Enron Jeff Skilling may get his sentence cut appreciably if a deal under consideration between his lawyers and DOJ goes through.

DOJ has sent a written notice to victims:

"The Department of Justice is considering entering into a sentencing agreement with the defendant in this matter...."Such a sentencing agreement could restrict the parties and the Court from recommending, arguing for, or imposing certain sentences or conditions of confinement. It could also restrict the parties from challenging certain issues on appeal, including the sentence ultimately imposed by the Court at a future sentencing hearing."

Skilling, who has served six years, has yet to be resentenced following his appeal that tossed a few counts. He is currently scheduled for release in 2028. Will the deal be for time served?

Both Skilling and Blagojevich are serving their sentences at FCI Englewood. Blagojevich is scheduled for release in 2024. I wonder if they are pals.

Details of Skilling's original sentence here. Posts explaining the ensuing twists and turns are assembled here .

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Supreme Court : Copyright Infringement Cases, Different Outcomes

The record companies are happy today. Text book publishers and authors are not.

The Supreme Court has denied cert in the case of Jammie Thomas-Rasset, a native American who uploaded, downloaded or otherwise shared 24 songs on Kazaa, a now-defunct music file-sharing service, for personal use. The record companies sued, and the ultimate judgment against her, after several retrials and appeals with jury verdicts as high as $1.9 million, was $222,000, or $9,250 per song. The issue, according to the Petition for Cert (which includes the 8th Circuit and trial court's opinions in the Appendix portion):

Is there any constitutional limit to the statutory damages that can be imposed for downloading music online?

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Judge Rejects Zimmerman Request to Depose Ben Crump

George Zimmerman will not be allowed to depose Benjamin Crump, the judge ruled today.

The hearing is going on now, you can watch live here.

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AL Appeals Court Vacates Death Penalty Conviction : Pre-Trial Publicity

The Alabama Criminal Appeals Court has reversed the conviction and death sentence of a Vietnamese immigrant who allegedly killed his four children by throwing them off a bridge, citing the trial court's rejection of a motion to change venue due to pre-trial publicity. The 90 page opinion is here.

"It is clear that publicity surrounding the murders completely saturated the Mobile community in 2008. A great deal of that publicity was prejudicial... Luong was denied his constitutional right to an impartial jury. Therefore, we must reverse Luong's convictions and sentence of death and remand this case for a new trial."

The Court also ruled the trial judge erred by refusing to allow the defense to individually question the jurors, who had filled out questionnaires, on what they had heard about the case. [More...]

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Judge Uses Good Faith Exception to Save Cell Site Data Search

The Supreme Court ruled warrantless GPS monitoring of Antoin Jones violated his Fourth Amendment rights and could not be used at his trial. (Opinion here, background here.) Basically,

The case concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his travels for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The Government then sought to introduce cell site locator data obtained by a court order (but not a search warrant establishing probable cause.) The judge has now ruled the cell site data can come in at trial. She said she didn't have to rule on the issue of whether a search warrant is required because the good faith exception to the warrant requirement saves the search. Wired's report is here.

The opinion is here. EFF filed this amicus brief. The Government's argument is here.(In non-legalese, here.) [More...]

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Judge Blocks PA Voter ID Law

Commonwealth Court Judge Robert Simpson has blocked Pennsylvania's voter ID law. He ruled it could go into effect for next year's election, but cannot be implemented for the November elections.

His ruling came after listening to two days of testimony about the state's eleventh-hour efforts to make it easier to get a valid photo ID. He also heard about long lines and ill-informed clerks at driver's license centers and identification requirements that made it hard for some registered voters to get a state-issued photo ID.

The ruling, available here, was not based on constitutional issues.

Rather, the state Supreme Court had ordered him to stop the law if he thought anyone eligible would be unable to cast a ballot because of it or if he found the state had not complied with the law's promise of providing liberal access to a photo ID that voters were required to carry on Election Day.

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PA Supreme Court Vacates Order Denying Injunction on Voter ID Law

The Pennsylvania Supreme Court reversed the Commonwealth Court which refused an injunction against the Voter ID law. The opinion is here.

[W]e agree with Appellants’ essential position that if a statute violates constitutional norms in the short term, a facial challenge may be sustainable even though the statute might validly be enforced at some time in the future. Indeed, the most judicious remedy, in such a circumstance, is the entry of a preliminary injunction, which may moot further controversy as the constitutional impediments dissipate.


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Text Messages Get 4th Amendment in Rhode Island

In a whopping 190 page opinion, a judge in Rhode Island has ruled that the 4th Amendment protects against warrantless seizures of text messages.

The case is State v. Pantino and the full opinion is here. Text messages weren't all the judge tossed, citing a "tsunami of illegal evidence". EFF and law Prof Orrin Kerr participated in the case and the judge especially credits Kerr's analysis: [More...]

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O'Mara Releases 6 Jail Calls, Seeks Reconsideration For Remainder

Update: I've uploaded the transcripts and bank records here.

Mark O-Mara, attorney for George Zimmerman, has posted the full audiotapes of the six jail calls between Zimmerman and his wife on the website he maintains for the case.

He has also filed a motion asking the judge to reconsider its previous order and keep the remaining jail calls and a statement of W-9 private. W-9 will not be a witness for either party and her statement, which is inflammatory, is not admissible. The state has released the credit union bank records and transcripts of the six calls. I assume the media will publish these.

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Great Britain High Court Okays Assange Extradition

Wikileaks founder Julian Assange has lost his appeal on extradition to Sweden. The British Supreme Court says he can be extradited to face charges there.

In a 5-2 vote, the British Supreme Court upheld the validity of an arrest warrant made by a Swedish prosecutor to question Assange over accusations by two Swedish women that he sexually assaulted them.

The ruling is here. The Court's press summary is here [More...]

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No Immunity for Strauss-Kahn in Civil Suit

A judge in New York has refused to dismiss the civil lawsuit filed against Dominique Strauss-Kahn by Nafissatou Diallo, the housekeeper at the Sofitel who alleges he sexually assaulted her. Strauss-Kahn raised the defense of diplomatic immunity.

In his decision, Justice McKeon quoted from a monetary fund document advising its officials that they enjoy immunity from the judicial process only in respect to their official duties.

The judge added that even that limited immunity expired with Mr. Strauss-Kahn’s resignation. The decision also noted that Mr. Strauss-Kahn chose not to raise immunity during his criminal proceedings because he wanted to clear his name.

Prediction: This case will now settle for an undisclosed sum of money. [More...]

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Colo Appeals Court: No Medical Marijuana While On Probation

The Colorado Court of Appeals has ruled persons on probation may not use marijuana, even if they have a valid state license to do so. The opinion is here.

The Court based its decision on federal law which it says outlaws possession and use of marijuana. (Actually, federal law only bans possession, not use of a controlled substance but no one seems to raise creative ways one could use marijuana without actually or constructively possessing it.)[More...]

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9th Circuit Affirms Unconsitutionality of Prop 8

Update: The 9th Circuit has affirmed the lower court's ruling that Prop 8 is unconstitutional. The 128 page opinion is here.

The 2-1 decision found the ban -- known as Proposition 8 -- "served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationship and families as inferior to those of opposite-sex couples." That violates the 14th Amendment's guarantee of equal protection under the law, the decision states

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PA AG Seeks Exclusion of Centre County Jurors for Sandusky

The Pennsylvania Attorney General has asked the court to empanel jurors from outside Centre County for the Jerry Sandusky trial. It says, in addition to pre-trial publicity, the Penn State Community and Centre County are "philosophically and economically” intertwined."

Sandusky's lawyer says he will fight the motion.

“Jerry’s case has drawn national attention, as a result of which we feel there’s no better place than Centre County from which to select fair-minded individuals to sit as jurors in Jerry’s case,” Amendola said. “We will vehemently oppose the commonwealth’s motion for a change of venire.”

In other words, the state wants to keep the trial in Centre County, but import jurors from other counties to decide the case. The judge will decide on Feb. 8.

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