The United States Supreme Court heard oral arguments on November 8, 2011 in the case of US v. Jones.  The oral arguments are available at UNITED STATES, Petitioner, v. Antoine JONES. 2011 WL 5360051. The issue presented in the case is an interesting one regarding Fourth Amendment’s protection against unreasonable searches: “Whether the warrantless use of a GPS tracking device on a vehicle to monitor its movements on public streets violates the Fourth Amendment.” See the Electronic Frontier Foundation’s (EFF) Amicus Brief: United States of America v. Jones, 2011 WL 4590838.

You can retrieve the briefs filed in this case by going into the database SCT-BRIEF-ALL and running a search such as: da(2011) & GPS & TI(JONES). I have also set up a WestClip in the SCT database to be notified when the Supreme Court issues an opinion in this case. My search for this clip is: TI(JONES) & GPS.

USA v. Whatcott is an ongoing federal case regarding mortgage fraud that poses an interesting question regarding the scope of the Fifth Amendment in the digital age.  In Whatcott, the prosecutors wanted defendant Ramona Fricosu to decrypt her laptop to make the contents of the laptop available to the government. Defendant claims that this would violate her Fifth Amendment rights against self-incrimination.

EFF filed an amicus trial brief “to help the Court apply the Fifth Amendment privilege against self-incrimination in a manner that ensures the constitutional rights of those who use this technological measure [encryption] to protect their privacy and security.”  See entry 172 at 1:10CR00509.

EFF stated that their interest in this case, “is the sound and principled application of the Fifth Amendment to encryption passwords and encrypted information stored on computers.” “EFF submits in this brief that “Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity.”  On Page 9 the EFF argues, “The Act of Entering a Password or Otherwise Decrypting Data on a Computer is a Compelled Testimonial Act Protected By The Fifth Amendment.” EFF further argues that “forcing an individual to supply a password necessary to decrypt data is more like revealing the combination to a wall safe than to surrender a key.” The Government replied that, “[t]he privilege against self-incrimination must be interpreted narrowly and is not a mechanism to protect abstract privacy.” See, docket entry 177.

In an order dated July 26, 2011, the Court stated that, “Unless the government establishes by at least a preponderance of the evidence that the laptop that is the subject of the application belonged to defendant, requiring her to provide the password thereto would force her to admit ownership of the laptop, in ostensible violation of the Fifth Amendment.” See docket entry 182. The court scheduled a hearing in this matter for October 19, 2011.

To track this docket to follow up on all the developments in this case, Find the docket by going into the Dockets for the District Court of Colorado database (DOCK-CO-DCT on Westlaw) and run the docket number 1:10CR00509 or simply click on this link:  DN(1:10CR00509). For WestlawNext, click here.

Once you have accessed the docket for this case, you can click on “Track this Docket” (Westlaw) or “Track” (WestlawNext) to keep abreast of the developments in this case:

Click to Enlarge

Other Research References

For general state of the law on this subject, try these traditional boolean searches:

CASES: In ALLCASES, try 

(FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /P PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

SECONDARY SOURCES: In TP-ALL, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

TRIAL FILINGS: In FILING-ALL, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

and 

 BRIEF-ALL: (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

NEWS: In ALLNEWSPLUS, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

We’re receiving regular requests for the John Edwards indictment.  It can now be found here: 2011 WL 2162889.

The Conspirator, a film directed by the venerated Robert Redford and released April 2011, treats the military tribunal conviction of Mary Surratt for conspiring in the assassination of President Abraham Lincoln.  For those unfamiliar with the story, Mrs. Surratt was proprietor of the boarding house frequented (and sometimes lived in) by John Wilkes Booth, and she was the mother of John Surratt, a Booth confederate and alleged conspirator.  Tried by a military tribunal with more lenient rules of evidence, no jury of peers, and no presumption of innocence, Mrs. Surratt’s case reached a conclusion fairly described as pre-determined.  She was convicted and hanged in 1865.  Mary Surratt holds the unenviable distinction of being the first woman executed by the United States government.

In the aftermath of Mary Surratt’s execution, questions were raised regarding military authority over civilians.  Ultimately, these questions would be answered by a case before the United States Supreme Court in 1866.  The case, Ex Parte Milligan (1866 WL 9434 subscription required), held that martial law was acceptable “on the theatre of active military operations” where civil courts do not function.  However, where civil courts remain in operation, civilians may not be tried by military tribunal; they must be allowed to avail themselves of the courts and of the safeguards of the U.S. Constitution, “a law for rulers and people, equally in war and in peace.”

Ex Parte Milligan is hailed as a landmark case for its protection of civil rights.  The story of Mary Surratt, once obscure, is gaining in popularity and spawning debate of her guilt or innocence.  Readers interested in reviewing the Milligan case may access it on Westlaw.  You may also find other cases and secondary sources pertaining to military topics in the MIL-TP (Military Texts and Periodicals) and MJ (Military Justice Cases)* databases.   And for you film buffs, take a minute to peruse Roger Ebert’s review of The Conspirator.

Other Sources / Research

*An interesting case NOT found in the MJ database (coverage begins in 1951), does provide some clues as to where to find documents related to the Surratt trial.  See 27 F.Cas. 1367:

 The trial of Mrs. Mary E. Surratt and others for the murder of Abraham Lincoln, president of the United States, was by military commission sitting in Washington, D. C., in May, 1865. The trial of John H. Surratt was by the criminal court of the District of Columbia, in June, 1867.

As decisions by the military courts and the courts of the District of Columbia after their reorganization under the act of March 3, 1863 (12 Stat. 764), are not included in this series, the reader is referred to the pamphlet reports of these trials, which can be found at many of the larger libraries. The trial of Mrs. Mary E. Surratt and others it sometimes denominated the ‘Conspiracy Trials.’

Westlaw Database: jlr

Query: mary /3 surratt

Results: 32

Also check out the official site’s resource center.

A Pennsylvania appellate court recently heard thirteen-year-old Jordan Brown’s appeal of a lower court’s decision to try him as an adult for the murder of his father’s fiancée.  Brown, who was eleven years old at the time of the 2009 killing, had moved to have his case transferred to juvenile court, but a judge denied that request in March of 2010.

Pennsylvania law requires that individuals accused of murder be tried as adults, unless the accused succeeds in having the case transferred to juvenile court.  PA ST 42 Pa.C.S.A. § 6355(e) provides, in part:

Where the petition alleges conduct which if proven would constitute murder, . . . the court shall require the offense to be prosecuted under the criminal law and procedures, except where the case has been transferred pursuant to section 6322 (relating to transfer from criminal proceedings) from the division or a judge of the court assigned to conduct criminal proceedings.

The “Section 6322” referred to in that subsection allows the accused to attempt to have his case transferred to juvenile court, but places the burden of proof on the juvenile:

[T]he child shall be required to establish by a preponderance of the evidence that the transfer will serve the public interest.

It is not uncommon to hear stories of 16 or 17 year-olds being tried as adults, but I can’t recall hearing of many 11-year-olds facing trial as an adult.  According to this story, Brown would be the youngest person in U.S. history to face life without parole if convicted.

RESEARCH

I ran a quick  search on Westlaw.com to see how many cases I could find that dealt with young individuals being tried as adults.  I chose to look for ages 5 to 12.  The search, age year-old /2 5 6 7 8 9 10 11 12 /s tried trial try! punish! charg! indict! +5 “as an adult” in ALLCASES, returned 40 results.  At least one of the cases also dealt with an individual who, like Brown, was 11 at the time of the offense.  Another case, Commonwealth v. Kocher, 602 A.2d 1308, which also happened to be a Pennsylvania case, involved a nine-year-old charged as an adult.

OMG! R U 4 Real? 

That furious tapping sound in the Golden State?  It might be the collective sounds of thousands of stored text messages meeting their fates courtesy of the delete button.

In a 5-2 decision, the California Supreme Court recently ruled that police can search an arrestee’s cell phone and its text messages without a warrant.

According to NPR:

The justices determined a Ventura County deputy had the right to conduct a warrantless search of the text messages of a man he had arrested on suspicion of participating in a drug deal… The state court ruled 5-2 that U.S. Supreme Court precedent affirms that police can search items found on defendants when they are arrested.

 The San Francisco Examiner provides some context:

Sheriff’s deputies seized Diaz’s cell phone along with six tabs of Ecstasy. One and one-half hours later, a detective, who did not have a search warrant, looked in the text message folder of the phone and discovered a coded message that referred to Ecstasy sales.

You can pull up State v. Diaz using the citation 2011 WL 6158.  (I found the case by running “co(high) & text-message” in California cases.) It is worth noting one cool, step-saving difference between using Westlaw or WestLawNext to retrieve this case.  When viewing the document on WestlawNext, you can click on the filings tab to access a transcript of the oral argument.  You would need to search the California Oral Argument Transcripts (CA-ORALARG) for the transcript. 

Also worth noting?  This is not the first time we’ve seen cases dealing with warrantless searches of cell phones.  In 2009, the Supreme Court of Ohio in State v. Smith (920 N.E. 2d 949) found the other way – ruling that warrantless cell phone searches violate 4th Amendment rights. 

I imagine we will be reading more about this when the Supreme Court gets around to reviewing it all. 

Until then?  B2W,TTYL.

Saudis urging the U.S. to attack Iran.  Another Royal scandal.  Hillary Clinton ordering her diplomats to spy…

The Wikileaks saga continues with the latest “dumping” of over 250,000 diplomatic cables.  The fallout – and its impact on the individuals caught up in these missives – will be immeasurable.

The fallout for one individual though is fairly certain: Private First Class Bradley Manning.

Pfc. Manning is the U.S. military member allegedly responsible for illegally downloading these and other classified files (onto a CD-rom disguised as a Lady Gaga album) and making them available to Wikileaks.org.

Pfc. Manning. 23, is currently detained and awaiting court martial for his role in these leaks.  He stands charged with “transferring classified data” and “delivering national defense information to an unauthorized source.” He faces 52 years in jail if found guilty.

RESEARCH REFERENCES

The Uniform Code of Military Justice can be found on Westlaw searching in FMIL-USCA.  Search for pr(“uniform code of military justice”).  A natural language search of “leaking information” in Shanor and Hogue’s National Security and Military Law in a Nutshell (NSMILLAW-NS) retrieves 17 articles.  A broader plain language search through all secondary sources on WestlawNext for the phrase “leaking classified military information” results in 125 documents – including articles entitled Prosecuting the Press:  Criminal Liability for the Act of Publishing and The Classified Information Protection Act:  Killing the Messenger of Killing the Message?

According to the New York Times, Manning once wrote, “I wouldn’t mind going to prison for the rest of my life, or being executed so much if it wasn’t for the possibility of having pictures of me plastered all over the world press.” Given these words, perhaps it is safe to assume he understood the life-altering implications of his alleged actions.

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The Ninth Circuit Court of Appeals recently reversed a conviction for placing water bottles along trails frequently traveled by illegal entrants to the United States (click here to view the opinion, United States v. Millis, on Westlaw.com or here to view it on WestlawNext).

Daniel Millis was convicted of violating 50 CFR § 27.94, a United States Fish and Wildlife Service regulation that prohibits:

The littering, disposing, or dumping in any manner of garbage, refuse sewage, sludge, earth, rocks, or other debris on any national wildlife refuge except at points or locations designated by the refuge manager, or the draining or dumping of oil, acids, pesticide wastes, poisons, or any other types of chemical wastes in, or otherwise polluting any waters, water holes, streams or other areas within any national wildlife refuge[.]

Mr. Willis, along with three other members of an organization called “No More Deaths,” had placed gallon-sized jugs of water along trails within the Buenos Aires National Wildlife Refuge in Arizona.  They were spotted in the refuge by Fish and Wildlife Service Officers and, when questioned, admitted leaving the water behind.  Millis was convicted based on the theory that the water jugs constituted “garbage” under the regulation.

The Ninth Circuit ultimately reversed Millis’s conviction after applying the “rule of lenity,” a canon of statutory construction providing that an ambiguity in a criminal statute be construed against the government.  The court held that the term “garbage” as used in the regulation was sufficiently ambiguous to call for the application of the rule of lenity:

[G]iven the common meaning of the term “garbage,” coupled with the regulatory structure, we conclude that § 27.94(a) is sufficiently ambiguous in this context that the rule of lenity should apply. Millis likely could have been charged under a different regulatory section, such as abandonment of property or failure to obtain a special use permit. However, that is not the question presented here. The only question is whether the rule of lenity should be applied to the offense charged. We conclude that it does apply, and we reverse the judgment of the district court.

Given the large amount of media coverage surrounding immigration, I was surprised to have never heard of the “No More Deaths” organization before this decision.  I ran searches through cases, trial court filings and orders, briefs, and dockets on Westlaw for “no more deaths” to see if there existed any other litigation involving the organization.  Those searches turned up a total of 3 relevant documents (two cases and one brief), and each related to the Millis case.  There are several mentions of the organization in the Journals and Law Reviews (JLR) and ALLNEWS databases.  A JLR search for “no more deaths” /200 immigra! returns 8 articles, while the same search in ALLNEWS returns 351 documents.

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The Texas Court of Criminal Appeals has reversed a murder conviction that was based on dog scent lineup evidence.  The opinion in Winfrey v. State is available at 2010 WL 3656064, and describes the scent lineup as follows:

[The lineup] involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including appellant. The dogs were “pre-scented” on the scent samples obtained from the victim’s clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing appellant’s scent sample.

The scent lineup was conducted by Deputy Keith Pikett of the Fort Bend County Sheriff’s office.  Deputy Pikett has conducted similar scent lineups for other cases in Texas.  A search in the Texas Cases (TX-CS) database for pikett /p scent returns 14 results.  Among the results is the Court of Appeals opinion in Winfrey v. State that the Court of Criminal Appeals reversed.  That opinion (291 S.W.3d 68) discusses in some detail the mechanics of the scent lineup conducted in this case.

The Court of Criminal appeals eventually concluded that Winfrey was convicted solely on the basis of the scent lineup evidence, as there was neither physical evidence nor eyewitness testimony to support the conviction.  The opinion concludes:

It cannot be denied that the jury and the court of appeals found the dog-scent lineup evidence in this case to be compelling. . .  But, the question essentially presented in this case is whether dog-scent lineup evidence alone can support a conviction beyond a reasonable doubt. And, while this evidence may raise a strong suspicion of appellant’s guilt, we nevertheless decide that, standing alone, it is insufficient to establish a person’s guilt beyond a reasonable doubt.

The Wall Street Journal’s Law Blog yesterday had a story regarding a federal inmate and frequent frivolous litigant Jonathan Lee Riches.  It seems that the United States District Attorney for the Eastern District of Kentucky has attempted to obtain an injunction preventing Mr. Riches from filing documents in any court unless a  federal judge determines that they have a basis in law and fact.

Mr. Riche’s history of filing lawsuits that are later dismissed as frivolous is quite long.  His filings are often hard to understand, and his list of parties are also sometimes confusing.  A search of:

AT(LEE-RICHES) & PRO-SE INMATE-MAIL CORRECTIONAL-INSTITUTION

Returns over 2,000 results in DOCK-ALL, although in fairness they may not all be Mr. Lees cases, they are simply anything with Lee Riches in the attorney field with pro se, inmate mail, or correctional institution elsewhere in the document.  One docket in particular stands out (and has a new motion filed as of July 30th 2010) as having a very strange mix of parties, some of the extremely numerous names:

We start out with the usual individuals:

GEORGE W. BUSH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES OF AMERICA

RICHARD B. CHENEY VICE PRESIDENT

CONDOLEEZA RICE SECRETARY OF STATE

No real surprises there for a case filed in 2006.  However the list of parties also contains foreign governments and celebrities:

KINGDOM OF SAUDI ARABIA

JEWISH STATE OF ISRAEL

THE VATICAN

JERRY WEST VICE PRESIDENT OF THE LOS ANGELES LAKERS

TONY DANZA

ANNA NICHOLE SMITH

BRAD PITT AND HIS ADOPTED SON MADDOX PITT/JOLIE

SADDAM HUSSEIN

But more strangely included are a large list of inanimate objects, geographical places, long dead historical figures, wholly fictional product spokespeople and sometimes ephemeral concepts that have no physical existence.  Some examples:

VIENNA CONVENTION

MAGNA CARTA

TSUNAMI VICTIMS

FRUIT OF A-LOOM [sic.]

PLATO

MEIN KAMPF

NORDIC GODS

THE DA VINCI CODE

MT. RUSHMORE

GREEN BAY’S LAMBEAU FIELD

MING DYNASTY

GANGS IN HONG KONG

THE APPALACHIAN TRAIL

THE COLOSSUS OF RHODES

BETTY CROCKER

LIBERTY BELL

This is a very small sampling of the parties.  You can find the entire list by clicking the link above.