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.

The 3rd Circuit on Tuesday September 7th handed down a much anticipated decision  dealing with the Governments attempts to get cellular network positioning information  without a warrant (2010 WL 3465170).

The dispute stems from the Governments attempts to obtain cell site location information (CSLI)  regarding a particular subscriber under the Stored Communications Act (18 U.S.C.A. §§ 2701 et seq.).

CSLI is information that cellular providers maintain regarding the location of their customers when they make a call.  Whenever a cellular customer makes a phone call, the cellular providers record what tower transmitted the call, as well as what “face” of the antenna was used to receive the call.

The police argue that this is valuable information for proving that individuals were at certain locations at particular times.  In this case, they requested the information under the Stored Communications Act provision that allows the Government to obtain the information by getting a court order merely upon a showing of the information’s relevance and materiality of the data to an ongoing criminal investigation.  This Act relieves the Government in certain situations of having to get a warrant and show probable cause.

In this case, the lower court refused to grant the order, and in a rare occurrence the order denying the request was joined by the other judges in the district.  The lower court held that the Stored Communication Act did not apply and that the CSLI records could only be obtained upon a showing of probable cause.

The 3rd Circuit here decided that the Stored Communications Act does not necessarily require that Probable Cause be shown in order to obtain this data.  Having decided that the lower court’s decision would not stand, much of the later decision dealt with the Government’s contention that if it met the requisite showing under the Stored Communications Act then the Magistrate must grant the order.  The 3rd Circuit did not agree, in addressing the legislative history they concluded that the magistrate might have discretion to require probable cause and a warrant under some circumstances.  The 3rd Circuit then remanded to the lower court for further consideration.

For more on the Stored Communications Act, see Chapter 9 of Data Security and Privacy Law: Combating Cyberthreats; specifically,  DATASPL § 9:17 et. seq.

Charles Carnell fancied himself a television star after he appeared on a Discovery Channel program that featured an attraction called Terminal Velocity located at a place called Extreme World in the heart of the Wisconsin Dells, WI tourism area.  Terminal Velocity is a thrill attraction known as a suspended catch air device (SCAD for short) in which the customer or “diver” ascends about 150 feet in the air either by stairs or a special elevator system.  The diver is fitted into the CFF “Controlled Free Fall” system that guarantees a secure free fall position for a comfortable landing. The operator (a “dive master”) assists the diver into a proper position and releases the cable that suspends the diver.  The diver then drops in an unattached controlled freefall for about 100 feet before being caught in a suspended net attached to airtubes and break suspensions for a soft landing so that the diver feels no impact at all.  A secondary safety system is in place in the form of an inflated air bag onto which the net is lowered.  The air is then released from the bag allowing the diver to return back to the ground.  Carnell was the dive master for Terminal Velocity during the taping of the television program.

 This same television program so captured the imagination of a young Florida girl, Teagan Marti, that she begged her parents to allow her to try a dive from Terminal Velocity the next time they visited relatives in the Chicago area.  Soon the big day came.  According to news reports, on July 30, 2010, Teagan got the opportunity to try the attraction and hoped on the elevator platform with 2 men along with their dive master, Charles Carnell.  The platform began the ascent but slowed down, presumably to let the air bag fill up.  The elevator stopped again about 100 feet in the air and Carnell assumed he was ready for the dives.  From his vantage point, he could see the net and the air bag below and was to wait for a signal to be given by the ground operator who ensures the net is raised properly and that the air bag is inflated.  Carnell then “blanked out” and placed Teagan in the dive position and released her cable.  Unfortunately, the ground operator never provided the signal and the net and air bag both remained on the ground.  With a thud, Teagan landed on the ground below.  She was alive and subsequently taken to a hospital with serious medical conditions include swelling of the brain, several fractures of the cervical and lumbar segments of her spine, multiple fractures of her pelvis and lacerations to her liver, spleen, intestines and duodenum.

 On August 17, the County Attorney for Sauk County filed a criminal complaint against Charles Carnell charging him with first degree reckless injury in violation of 940.23(a)(1) and 939.50(d).  I found it interesting that the charge is called first-degree reckless injury, yet the statute itself only refers to the class of felony but not to the degrees of reckless injury.  The case file number is 2010CF000201 and the case’s progress can be followed using Westlaw Dockets database identifier of DOCK-WI-STCTS to see if the court thinks the attraction operator is a criminal.

For related  cases and an overview of the substantive law, see section 12 of 16 COA 2d 1, Causes of Action Against Operator of Amusement Park for Inury on Ride. Section 12 is dedicated to criminal liability. //

The Ninth Circuit Court of Appeals affirmed a case that effectively allows  police to secretly place global positioning system (GPS) tracking devices on vehicles without seeking a warrant from a judge.   In United States v. Pineda-Moreno  (591 F3d 1212),  Pineda-Moreno argued that sneaking onto his driveway and secretly placing a GPS tracking device to his car violated his reasonable expectation of privacy.  The Ninth Circuit Court of Appeals held that there was no reasonable expectation of privacy to driveway; that there was no reasonable expectation of privacy to undercarriage of vehicle; that there was no reasonable expectation of privacy when parking vehicle on street or in parking lot; and that the use of a tracking device was not a search.  

Dissenting language from the order denying a rehearing enbanc ( 2010 WL 3169573) is passionate:

Having previously decimated the protections the Fourth Amendment accords to the home itself, United States v. Lemus, 596 F.3d 512 (9th Cir.2010) (Kozinski, C.J., dissenting from the denial of rehearing en banc); United States v. Black, 482 F.3d 1044 (9th Cir.2007) (Kozinski, J., dissenting from the denial of rehearing en banc), our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory.1984 may have come a bit later than predicted, but it’s here at last.

The same issue was argued in the Court of Appeals for the District of Columbia.  This court held the opposite in the case United States v. Maynard, found at 2010 WL 3063788.    The court held that warrantless use of  (GPS) device on defendant’s vehicle for a month was a search and that the automobile exception to the warrant requirement did not apply to this search. 

 The issue could eventually end up in the United State Supreme Court. To find a number of cases on the topic of whether law enforcement  is required to get a warrant before placing a GPS tracking device on a car, try the following search.

Database:  ALLCASES

Search:       G.P.S. /S CAR AUTOMOBILE VEHICLE VAN TRUCK S.U.V. PICK-UP /S (NO NOT #WITHOUT FAIL! LACK! /5 WARRANT) WARRANTLESS SECRETLY.

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From the “old news” file comes word that the corruption trial of former Illinois governor Rod Blagojevich ended in a hung jury on all but one count.  The docket for the case, which includes the verdict form, is available here (1:08-CR-00888). 

Blagojevich was convicted only of making false statements to the Federal Bureau of Investigation, a violation of 18 USCA § 1001.  That charge is outlined in the Second Superseding Indictment, which is available on Westlaw at 2010 WL 1777511.

Blagojevich has been less than elusive since the verdict, appearing at such gatherings as the Wizard World Chicago Comic Con and making several television appearances.  Among those appearances was an interview on Fox News Sunday, where he discussed his case and indicated that he may not be finished with politics:

“My adult life was serving the people as a congressman, as a governor.  It’s what I know. I’m not very good on BlackBerries or computers or anything like that.  It’s why Donald Trump fired me on Celebrity Apprentice.  But no, I — I’m not ruling myself out as coming back, because I will be vindicated in this case. ”

You can read a complete transcript of the interview (broken up into two parts) by running the following search in the ALLNEWS database:  BLAGOJEVICH & PR(FOX).  The results are ranked in reverse-chronological order, so the interview should be at or near the top of the list.

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Seven-time CY Young award winner Roger “The Rocket”  Clemens, one of the most well known pitchers in baseball, was indicted on Thursday on a series of charges related to lying to the U.S. Congress about using performance-enhancing drugs. He was charged with one count of Obstruction of the U.S. Congress, three counts of making False Statements and two counts of Perjury, in U.S. District Court for the District of Columbia.

The charges stem from sworn testimony Clemens provided to House Committee on Oversight and Government Reform staff, and later to the  House Oversight and Government Reform Committee during February, 2008.  (See, for example, the February 13th, 2008 verbatim transcript: 2008 WL 376905 (F.D.C.H.))  In both instances, he testified that he had never used steroids or human growth hormones.  The indictment however, alleges that “[i]n truth and in fact, as Clemens well knew when he gave this testimony, Clemens knowingly received injections of anabolic steroids while he was an MLB player.”

The indictment is contained within the William Roger Clemens docket, which can be found by running (Def (Clemens)) & DN(1:10CR00223) ) within the DOCK-DC-DCT data base.

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Accused “Craigslist Killer” Philip Markoff was found dead Sunday after he reportedly committed suicide.  The fact that his apparent suicide occurred while in custody brought to mind a few recent calls I’ve taken on prisoner civil rights suits.

None of those calls dealt specifically with inmate suicide, but ranged from the alleged failure of prison officials to protect an inmate from violence, to allegations of the denial of religious freedom.  I’ve found the secondary source Rights of Prisoners (RGTSPRISON) to be quite helpful in researching those types of issues.  That database has a section dealing specifically with inmate suicide. 

I also ran an ALLCASES search on Westlaw.com for sy,di(prison! inmate incarcerat! /5 suicid! /s negligen! “wrongful death”) to get a feel for some of the litigation that exists on this issue and retrieved 137 documents.  On WestlawNext, try a search in all jurisdictions for liability for inmate’s suicide.

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Credit: REUTERS/Janet Hamlin/Pool

Accused terrorist, Omar Khadr, is the youngest detainee at Guantanamo Bay. Khadr, was captured in Afghanistan in 2002, when he was just 15 years old. He is accused of helping assemble and plant roadside bombs for al Qaeda and of killing a special forces soldier. Last week, (Thursday, August 12, 2010), his trial began, marking the Obama Administration’s first full military trial of suspected terrorists detained at Guantanamo Bay (GITMO) .

There has been a lot of discussion over the Due Process Rights of GITMO detainees.  See May 19, 2010 blog article from Tedd C. entitled Guantanamo Detainees and Due Process—This Time in the U.K.   To read some law review articles on the issue of due process for Guantanamo detainees, go to WestlawNext and type in: Due Process Rights of Guantanomo Detainees. Click the Secondary Source link on the left panel to get a list of relevant articles.

Westlaw.com also has a number of dockets online where Omar Khadr is a party.

• Database: DOCK-FED-ALL
• Search: PTN(OMAR /2 KHADR) 

Khadr was just a teen when he was caught and detained. One of his defenses is that of being a “child soldier.” Was he too young to know the consequences of his acts? Was he threatened with violence or even death if he did not comply? An interesting article is found on Westlaw.  See International Law and Laws of War and International Criminal Law – Prosecution of Child Solders — United States v. Omar Ahmed Khadr, 33 Suffolk Transnat’l L. Rev. 175.

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If you were ready and willing to quit your job, how would YOU do it? What would push you over the edge? By now I’m sure you have heard of Mr. Slater’s unconventional exit off a Jet Blue flight. I only wish I could exit a commercial flight that quickly – and with two frothy beverages in hand no less. After being hit in the head by luggage from a passenger and verbally abused, he declared, according to passenger Phil Catelinet’s blog:

To the passenger who just called me a mother f***** f*** you. I’ve been in this business 28 years and I’ve had it

From that point, he activated the emergency chute and exited the plane with his carry-on bag and two beers in tow.

My first instinct upon hearing of this event was sympathy. I hate commercial travel with a passion. I’m not a fan of small enclosures and I have a tendancy to get motion sickness. I’m probably the guy you hope to sit next to on the plane. I’m drugged just beyond the point of caring about anything and tend to stay very quiet, still, and blend into the seat. I’ve been in many planes where I wish I could educate a fellow passenger on basic hygene, plead to a parent to control their children, or explain basic laws of physics to people who are determined to get their oversized luggage in the overhead bin that is clearly too small.

Clearly public opinion is rushing towards Mr. Slater’s defense. Some people are even calling him a hero. Facebook pages have even begun to spring up to take donations or express their support. After learning more about Mr. Slater’s behavior, I’m not surprised by the charges. Queens District Attorney Richard Brown said Slater’s actions could have had deadly consequences:

The emergency chute deploys at 3,000 pounds per square inch within seconds and could easily injure or kill ground crews or others on the tarmac who are unaware the chute has been activated.

Slater is charged with second-degree criminal mischief and first-degree reckless endangerment, both felonies that could land him in jail for up to seven years. Criminal law is not my area and ironically I have had a few calls on criminal issues this week in regards to possible sentences. In regards to Federal criminal issues, here are a few databases that may come in handy:

• Federal Criminal Justice – Federal Sentencing Guidelines (FCJ-FSG)
• Federal Criminal Justice – Federal Sentencing Guidelines-Old (FCJ-FSG-OLD)
• Practice Under the Federal Sentencing Guidelines (PRFSG)
• Federal Criminal Justice – Cases (FCJ-CS)
• Federal Sentencing Reporter (FCJ-FSR)
• Federal Sentencing Law and Practice (FSLP)
• Benchbook for U.S. District Court Judges (BBUSDISJUD)
• Federal Trial Handbook: Criminal, Fourth Edition (FEDTRHB-CRIM)
• Model Penal Code: Sentencing (ALI-SENTENCE)
• Law of Sentencing (LAWSENT)

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Credit: Reuters/Toru Hanai

Recently, Kuoa Fong Lee was released from jail after serving 2 ½ years of an 8 year sentence for criminal vehicular manslaughter. He was driving a 1996 Toyota Camry that, according to Lee, failed to stop even when he was pressing on the brakes.

In light of recent events with Toyota, and after four days of evidence and arguments made by Lee’s attorneys, a Ramsey County judge decided to grant Lee a new trial and then the county attorney decided not to retry the case. It was a dramatic moment. 

There are a fair number of materials regarding prosecutorial discretion.  Try,

• Database Criminal Justice Texts and Periodicals: cj-tp
• Query: ti(prosecut! /4 discretion)

Granting a new trial is one post-conviction remedy available—what others are out there? Find “Postconviction Remedies” at PCREM on Westlaw. This database helps you select the right course of action by distinguishing among the multitude of remedies available, describing them in detail and suggesting solutions for problems that may arise.

A search for “new trial” in PCREM returns 56 documents that discuss new trials in a variety of contexts.

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