US Supreme Court becomes Canadian

Yes, I mean this a bit facetiously, but to a certain extent it is true.  The US Supreme Court has now agreed that improperly obtained evidence may be admissible now, in particular circumstances.  This has been the law in Canada for some time as the interpretation of s.24(2) of the Charter of Rights and Freedoms, and has been expanded and reaffirmed in a quartet of SCC judgments this past summer (for example, R. v. Grant).

Specifically, the SCOTUS has said, in a 5-4 decision, that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant.  This is still a very specific exemption from the exclusionary rule.

“To trigger the exclusionary rule,” Chief Justice Roberts wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

This is an interesting decision from a rather conservative court, though one that is not unexpected.  It does, to a certain extent, water down the rights of the accused.  However, unlike in Canada, it simply excuses sloppy record keeping from preventing an otherwise sound charge. 

The case began when methamphetamines and a gun were found after Bennie Herring was arrested based on police officers’ mistaken belief that he was subject to an outstanding arrest warrant.  He wasn’t.  Or rather, he had been, but the warrant was withdrawn though the records were not updated.

This didn’t prevent the courts from getting the conviction that Herring rightly deserved.  And, in my opinion, this was a correct decision.  The officer acted in good faith in moving on what he perceived to be an outstanding warrant. 

The Dissenting judges (4 of the liberal justices on the Court) stated that the majority

“underestimates the need for a forceful exclusionary rule and the gravity of record keeping violations,” particularly given the heavy reliance by law enforcement on the electronic databases that “form the nervous system of contemporary criminal justice operations.

I see their point as well.  We don’t want to excuse police error and encourage sloppy record keeping.  However, in the isolated case like this, I do think the court should have the discretion to admit this sort of evidence.  I mean, it’s worked in Canada, right?

[Source: NYT]

IUD removal sparks claim

In what has to be one of the most invasive and ridiculous stories I have read all year (as more and more of these posts seem to be), a Nurse at Presbyterian Medical Services Rio Rancho Family Health Center allegedly yanked out a woman’s IUD (inter-uterine device).

Nurse practitioner Sylvia Olona is alleged to have done this during a procedure to shorten the strings on the device to make it more comfortable. 

According to the plaintiff,

"Olona then stated, 'having the IUD come out was a good thing.' She asked (the plaintiff) if she wanted to hear her 'take' on the situation. Without receiving a response, Defendant Olona stated, 'I personally do not like IUDs. I feel they are a type of abortion. I don't know how you feel about abortion, but I am against them. What the IUD does is take the fertilized egg and pushes it out of the uterus.'

"Defendant Olona stated, 'Everyone in the office always laughs and tells me I pull these out on purpose because I am against them, but it's not true, they accidentally come out when I tug.'

Now, a statement such as this must be taken with a grain of salt as it is simply the allegations of the plaintiff and has not been subject to any sort of judicial treatment.  For the sake of all involved, I hope this was just a tragic accident and was truly a mistake.  If not, there are major issues at stake here, not the least of which is the right for medical treatment to remain separate from any sort of personal views.

[Source: Courthouse News]

Justice of the Peace may be racist

In what has to be one of the most absurd and unacceptable decisions by a legal system, Justice of the Peace Keith Bardwell has denied an interracial couple a marriage license.

Why?

Because:

he had discussed the topic with blacks and whites. “There is a problem with both groups accepting a child from such a marriage,” Mr. Bardwell said. “I think those children suffer, and I won’t help put them through it.”

Despite how ridiculous that sounds, he goes on to say this:

"I'm not a racist. I just don't believe in mixing the races that way," Bardwell said.
"I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else." [emphasis added]

There have been calls from everyone, including the Governor of Louisiana (the infamous Bobby Jindal) to have Justice Bardwell removed from office.  He is, technically, an elected official, so this is not as simple as it may seem. 

Besides the obvious racism and the unnecessary proselytizing, there is an argument to be made that Justice Bardwell may have broken state law by refusing to conduct a marriage without reason to doubt capacity to enter into this contract.  Essentially, by refusing on prohibited grounds.

Listen to Bardwell’s response below:

Watch CBS News Videos Online

Further, it seems that Louisiana's law may be interpreted in a way favourable to Bardwell, according to CNN.

A state statute says justices of the peace may perform marriage ceremonies, but it does not require such officials to do so, Tammi Arender, a spokeswoman for the Louisiana attorney general, told CNN on Monday.

However, the Louisiana Supreme Court does have the ability to remove him from office if they deem it appropriate.  In this case, I sure hope they do.

[Source: CNN, LA Times, NYT]

State of Kentucky and Net Neutrality

I think the most remarkable thing about this decision is the media coverage of it.  I mean, quite honestly, I agree with what this reporter states, but the tone is both dismissive and amusing:

In a decision what can only be described as the grownups regaining control, the Kentucky Court of Appeals yesterday overruled a lower court decision that allowed Gov. Steve Beshear's Keystone Cops to confiscate 141 domain names last fall.

The ruling can be read here, if you are looking for the details.  The lower court erred in law so severely that there was no other recourse but to overturn the decision.  To let it stand would have set a dangerous precedent for electronic advocates and internet companies everywhere.

The Court of Appeal states:

[I]t stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute a "machine or any mechanical or other device ... designed and manufactured primarily for use in connection with gambling."

It certainly does.  There’s no way to justify that an IP address can qualify on its own to be a machine or device manufactured primarily for use in connection with gambling.  IP addresses cannot be said to have been manufactured primarily for anything other than connecting remote machines together for any number of purposes.

Thank goodness the cooler heads prevailed.

[Source: Network World]

Arar was ID’d by Khadr?

I won’t waste time rehashing the Omar Khadr story.  But suffice it to say that this development back in January was rather shocking.  Even more shocking is that nothing has really been mentioned about this issue since.

In January 2009, it was widely reported that Omar Khadr, the Canadian child detained at Guantanamo and now the only Western citizen to still be held there, had identified Maher Arar.  Arar is a Canadian who was detained when travelling via New York, arrested and deported to Syria for several years while he was tortured mercilessly.  He has now successfully obtained money from the Canadian government after a public inquiry cleared him of all charges.

The CP24 news story states that:

Maher Arar, the Ottawa computer engineer whose 2002 deportation and torture in Syria made him a symbol of the perils of post-9-11 hysteria, was identified by Omar Khadr as someone he'd seen at al-Qaida safehouses and possibly an Afghan training camp, an FBI special agent testified Monday.

It was pretty spurious as far as allegations go, because this information had not come up until this point and has not really come up again.

Most importantly, this testimony was widely condemned.  Khadr’s US Lawyer Lt.-Cmdr. Bill Kuebler said that Khadr often lied to investigators so they would stop torturing him.  Paul Cavalluzzo, who served as chief counsel for the Arar inquiry also stated that it was useless if it was a product of torture.

Supreme Court Strip Searches

Okay, the title of this piece may be a bit misleading, but the point is there.  The Supreme Court of the United States is to rule on whether or not schools can strip search students.  In this case, an 8th grader.

Basically, a school in Safford, Arizona is very against prescription medicine.  So when one student claimed that another student had given her ibuprofen, the school searched the girl’s locker.  That, in and of itself, may raise eyebrows but is not uncommon.

When nothing was found, they ordered the 13 year old girl to strip in front of two women to see if she was hiding any pills.  This is completely asinine.  

Perhaps it would be one thing if the girl was accused of having some sort of weapon, but ibuprofen? Really?

The school, appealing to the Supreme Court, has said that the Court of Appeal decision to ban these searches:

The decision "places student safety and school order at risk by impairing the ability of school officials to effectively carry out their custodial responsibility," it said.

That’s also ludicrous.  There were multiple options available to the school, not the least of which was sitting her down in the principal’s office and calling her parents.  Or, here’s a thought, don’t strip search a girl based on a report from another 13 year old girl.  It’s common sense.  I hope the SCOTUS finds against the school board very quickly.  It’s a pretty egregious violation of personal space.

[Source: Reuters]

BART Cop Arrested

This is an extraordinarily outdated post, but I wanted to talk a little bit about the incident in Oakland back in January.

For anyone unfamiliar with the issue, the BBC sums it up best when they say: “Johannes Mehserle, a transport officer at the time, is accused of shooting Oscar Grant, 22, in the back as he lay face down on a train platform.”

That is it, in a nutshell.  The details do paint a bleaker picture. 

The story unfolds that the police responded to a fight on the BART Train and pulled several men off the train, including Grant.  Eventually, Grant, several of his friends, and others were seated along the side of the station and Grant appears to be handcuffed.  Finally, Grant was pulled up and thrown on the ground, at which point it appears there was some resistance.  However, while one officer pinned him down another pulled his gun and shot him once in the back.

Mehserle has argued that Grant was actively resisting arrested and has alluded to pursuing several other events.  He was arrested on charges of murder in January.  This is extremely rare for a police officer, especially regarding an event that occurred in the line of duty. 

It will be interesting to follow this case to examine a fairly unprecedented trial process.

[Source regarding Arrest: BBC News]

Copyright Primer

For any US readers out there, this is a pretty good post explaining some of the details of the Creative Commons license.

If you’re not familiar with  the Creative Commons Program, it’s a way for people to copyright their work and specify how it can be used.  The program focuses on digital creations, but can be applied to other things as well.

While there is also a Canadian Creative Commons program, there is no major explanatory post about it.  Some of the guiding principles are the same but the differences between American and Canadian copyright law is such that you may want to get specific advice.

From the “About” section:

We provide free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.

[Source: Freelance Switch via Lifehacker]

You just got served by a twit

I almost feel the need to retire from both the law and the internet after reading this article.

Apparently, the UK High Court has just approved its first injunction via Twitter.  That’s right.  Twitter.  That Twitter.  The mind-numbing website with a 140 character limit.  The site that has singlehandedly made the internet a little less valuable.

Someone on Twitter was alleged to have been impersonating a right-wing blogger.  They were, in essence, doing so anonymously.  To combat this, and to allow effective service of a court writ, the High Court has allowed service by a tweet.

Andre Walker at Griffin Law said the anonymous Tweeter targeted by the writ will get a message from the High Court the next time they open their online account.

"Whoever they are, they will be told to stop posting, to remove previous posts and to identify themselves to the High Court via a web link form," he said.

I wonder how well this works.  It’s now not uncommon for lawyers in Canada to use Facebook to effect service, but somehow I find that much less absurd than Twitter.  But maybe that’s just me.

[Source: Yahoo! News]