Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Thursday, February 18, 2016

USDOJ vs Apple: Privacy and National Security

Full disclosure, this blogger has an immediate family member that works for Apple and this blogger owns stock in the high-profile global company. That said, the show-down between the U.S. Department of Justice and Apple is so timely and important, with such critical privacy implications for users of devices connected to the Internet, we are compelled to blog on this topic.

This case [officially referred to on PACER as "In the matter of the search of an Apple iPhone seized during the execution of a search warrant on a black Lexus IS300 California license plate 35KGD203"] could be the perfect storm to allow the federal courts and ultimately the SCOTUS, to address and attempt to resolve the building tensions between the cyber-privacy of Internet-using citizens and the government's interest in maintaining national security in the terrorist era.

The San Bernardino shooting case in December has now brought these tensions from an esoteric philosophical discussion, to an actual terrorist investigation involving several deaths and one specific iPhone. In the ensuring federal investigation, the shooter's county-issued iPhone 5 device was recovered from his Lexus vehicle shortly after he was shot dead by law enforcement officers.

Due to the genius encryption and design of the recovered phone, the FBI techs cannot access the data contained on the phone; Apple is believed to have the capability to "unlock" the phone; a device it manufactured.

Federal magistrate judge Sheri Pym issued an order in the case stating:
  1. Apple shall assist in enabling the search of a cellular telephone [make, model and serial number], (the "SUBJECT DEVICE"), pursuant to a warrant of this Court by providing reasonable technical assistance to assist law enforcement agents in obtaining access to the data on the SUBJECT DEVICE.
  2. Apple's reasonable technical assistance shall accomplish the following three important functions: (1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE; and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposely introduce any additional delay between the passcode attempts beyond what is incurred by Apple hardware.
  3. Apple's reasonable technical assistance may include, but is not limited to: providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File ("SIF") that can be loaded onto the SUBJECT DEVICE. The SIF will load and run from Random Access Memory ("RAM") and will not modify the iOS on the actual phone, the user data partition or system partition on the device's flash memory. The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE. The SIF will be loaded via Device Firmware Upgrade ("DFU") mode, recovery mode, or other applicable mode available to the FBI. Once active on the SUBJECT DEVICE, the SIF will accomplish the three functions specified in paragraph 2. The SIF will be loaded on the SUBJECT DEVICE at either a government facility, or alternatively, at an Apple facility; if the latter, Apple shall provide the government with remote access to the SUBJECT DEVICE through a computer allowing the government to conduct passcode recovery analysis.
  4. If Apple believes it can accomplish the three functions stated above in paragraph 2, as well as the functionality set forth in paragraph 3, using an alternate technological means from that recommended by the government, and the government concurs, Apple may comply with this order in that way.
  5. Apple shall advise the government of the reasonable cost of providing this service. 
  6. Although Apple shall make reasonable efforts to maintain the integrity of data on the SUBJECT DEVICE, Apple shall not be required to maintain copies of any user data as a result of the assistance ordered herein. All evidence preservation shall remain the responsibility of law enforcement agents.
  7. To the extent that Apple believes that compliance with this order would be unreasonably burdensome, it may make an application to this Court for relief within 5-business days of receipt of the Order.
Of course, Apple is hating both the spirit and the letter of the above court order. For its part, the world's most valuable company issued a statement to its customers via CEO Tim Cook, warning of the dangerous precedent the above order created in terms of circumventing Apple's significant user security features.

Cook also highlighted the potential privacy breaches that could flow from the precedent set in this case, including having the government force Apple to develop surveillance software programs that could: intercept private messages; access medical records and personal financial data; track a user's location; and co-opt a user's private photos and other data stored on a device.

We here at the Law Blogger expect Apple's lawyers to file an objection to the Court's order tomorrow or Monday latest. Then its on the the United States Court of Appeals for the Ninth Circuit in San Francisco for appellate resolution; if the case is fast-tracked, an opinion could be issued by the intermediate appellate court by April or May.

Depending on the rulings and given that the legal positions taken by the parties seem entrenched, the case could potentially be briefed and argued at the SCOTUS during its next term.

Meanwhile, the investigation remains stalled for months and any useful data stored in the recovered device is frozen and of no value to law enforcement and homeland security. Plenty of time for the bad guys, if there were any beyond the shooters, to get away.

Understandably, this irks a great many people; even those who value their own privacy. For our part, we will monitor this potentially seminal case and report all significant developments.

Post #525

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Tuesday, February 16, 2016

Justice Scalia's Constitutional Legacy

The stunning news swept the country over the weekend; the longest-serving SCOTUS justice on the current bench, Antonin Scalia, died suddenly in Texas at age 79. His death leaves a vacancy on the bench of the High Court that is sure to create political tensions in this, a highly contentious election year.

Justice Scalia was appointed to the Supreme Court by President Ronald Reagan in 1986 and was unanimously confirmed by a U.S. Senate vote of 98-0. Whoever is nominated by President Obama will not have it so easy with Republican members of the Senate vowing to block any appointment until after the election.

A conservative justice, Scalia disdained consideration of legislative commentary about the meaning and purpose of a particular law. He focused instead on the original intent and meaning of the U.S. Constitution, as ratified by its drafters; the so-called Founding Fathers.

An unusual paradox of Scalia's constitutional originalist philosophy was its effect on matters involving criminal defendants. Justice Scalia was consistent in his judicial philosophy, studying each case before the SCOTUS, with great regard for the text of the specific clause or amendment at issue.

In the cases of the Sixth Amendment confrontation clause and the Fifth Amendment right to a fair trial at the sentencing phase, citizens accused of serious crimes benefited from Scalia's originalist approach.

We here at the Law Blogger took advantage, for example, of Scalia's majority opinion in Crawford v Washington, a Sixth Amendment confrontation clause case, when the Washtenaw County Prosecutor convicted one of our clients based, in part, on a DNA analysis that featured testimony from only one of the 3 lab technicians that prepared the report. Scalia's majority opinion was very useful in the ultimate habeas corpus petition filed in the United States District Court for the Eastern District of Michigan.

Another example of Scalia's handiwork in the realm of the constitutional rights of the accused is his dissent in the 2000 case of Apprendi v New Jersey, which ripened into a majority opinion 4-years later in Blakely v Washington, holding that a judge cannot fashion a sentence based on facts that were not proved beyond a reasonable doubt by evidence submitted at a trial. This decision played a part in scraping the federal sentencing guidelines and, more recently, the Michigan sentencing guidelines. Now, facts that give rise to a punishment are either assented to by the convicted defendant, or determined by a jury beyond a reasonable doubt; they can no-longer spring from the pages of a probation intake officer's report.

Neither Scalia's Sixth Amendment confrontation clause opinions, nor his Fifth Amendment sentencing decisions are pro-conservative. Yet, they are consistent with his originalist theory of constitutional law; and they are necessary for a truly free society.

So now what? President Obama has vowed to do his duty as President and make an appointment to fill the vacancy under Article II, section 2 of the U.S. Constitution. The Constitution also provides, however, for such an appointment to receive confirmation by the Senate.

This is an election year and at least one of Justice Scalia's former law clerks, Ted Cruz, is running for the Republican nomination for President. Senator Cruz has remarked about an informal unwritten convention in American politics that a sitting but "lame duck" President does not get to have his SCOTUS nomination confirmed.

In the 20th Century alone, there were six justices appointed and confirmed during a sitting president's last year in office before an election: Justice Anthony Kennedy in 1986; Michigan's Justice Frank Murphy in 1940; Justice Benjamin Cardozo in 1932; Justices Louis Brandeis and John Clarke both in 1916; and Justice Mahlon Pitney in 1911. Therefore, we here at the Law Blogger have to wonder what Senator Cruz is talking about.

Post #524

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Wednesday, February 10, 2016

Lawyer's Blog Post Prompts Physician's Grievance

Dr. Rosalind Griffin
Over the past decade, our law firm has been an early-adopter of blogging as a tool to publish relevant legal content to client prospects. As such, we here at the Law Blogger have followed Steve Gursten's Michigan Auto Law blog with keen professional interest.

With nearly 300 posts, Gursten's blog has been around for a while. In November 2014, Gursten, a personal injury lawyer specializing in auto no-fault claims, took aim against a physician hired by an insurance company to conduct an independent medical examination of one of his injured clients.

In this post, he takes Dr. Rosalind Griffin to task for purported discrepancies between her recorded examination of his client and her subsequent testimony in the injury case. [In an automobile accident personal injury case, the insurance company insuring the at-fault driver secures an independent medical examination to verify the nature and extent of the injuries suffered by the plaintiff driver.]

Gursten's premise is that Dr. Griffin, a physician he says is notorious among the personal injury bar, performs a "hatchet job" on his client. He conducts a tour-de-force of his cross-examination of Dr. Griffin using a top-9 list of "hatchet job" tactics and applying those principles to Dr. Griffin's specific testimony in the case. Frankly, the piece is well-written and he really gets his points across.

The entire deposition transcript is attached to the blog post. By doing so, Gursten takes the concept of bringing legal content to the people to a whole new level; that, in fact is his mission. Through the post on his case, Gursten seeks to shine a light on the practice of physicians that are supposedly independent but who Gursten says are beholden to the insurance companies who pay for their examinations.

Not taking the matter sitting down, Dr. Griffin filed a grievance against Gursten with the Attorney Grievance Commission asserting his blog post defames her and places her in the proverbial "false light". She is no lightweight when it comes to attorney discipline; she sits on the Attorney Discipline Board.

Just a few days ago, citing the first amendment's free speech clause, Gursten told Michigan Lawyers Weekly that the post will stay right where it is; he has also posted a defense of his post in the Michigan Auto Law blog.

The official play book on law blogging says do not post about your own cases. Your client may not want the spotlight on her case; there are confidentiality concerns; you risk promoting yourself at the expense of good content, etc.

There are exceptions to this general rule and this post appears to be one of them if you ask us here at the Law Blogger. Gursten believes in what he posts and he'll convince you if given half a chance.

Post #523

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Friday, February 5, 2016

Prohibition of Juvenile Life Sentences Applies Retroactively

Juvenile lifer Ray Carp
A few years ago, we tracked the Miller v Alabama case as it went to the SCOTUS to decide whether juveniles could be given life sentences. The Court said such sentences were unconstitutional but did not address whether the decision applied retroactively; i.e. to inmates long-ago convicted when they were juveniles but who still remain incarcerated several decades later.

The SCOTUS decision from last month in Montgomery v Louisiana held that the ban against life sentences for convicted juveniles does apply retroactively and in dicta, urges the states that have refused to release such convicts to parole them as soon as possible. Michigan, along with 5 other states, has refused to apply the Miller ruling retroactively, keeping all of their juvenile lifers locked-up.

A close read of the 6-3 opinion in Montgomery shows that the SCOTUS has not only retroactively applied the juvenile lifer ban to all past state and federal sentences, it also strengthened its ruling in Miller.  The legal scholar Lyle Denniston of SCOTUSBlog puts it this way:
The new decision does make Miller retroactive to cases that were final before the date of that ruling — June 25, 2012.  But it also appears to go beyond the actual scope of the Miller ruling, by strengthening the chance that a newly convicted juvenile will be able to show, at the time of sentencing, that he is not beyond rehabilitation to become a law-abiding individual.  Life without parole, the Court declared, is always unconstitutional for a juvenile unless he or she is found to be “irreparably corrupt” or “permanently incorrigible.”
The Michigan Attorney General has actively resisted applying the juvenile lifer ban retroactively. The AG asserts that the sentences were constitutional when imposed and that the focus should be on the crime victims, not the murderers.

There are approximately 350 persons in Michigan that are in a position to be re-sentenced or paroled. Among them is Raymond Carp, who perhaps has the most questionable conviction of this select group. Carp was the subject of one of our 2014 posts; his conviction, although it withstood a lengthily and withering appeal, arguably was a result of "guilt-by-association"; his co-defendant was a much older mastermind of the murder in which he was entangled.

Now, Carp, along with the other juvenile lifers here in Michigan actually stand a chance at parole.

Post #522

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Wednesday, February 3, 2016

State Police Lab Target of Defense Counsel's Department of Justice Complaint

In early November, I attended an excellent panel discussion on the topic of medical marijuana put on by the Oakland County Bar Association; the 1/2 day seminar addressed the topic from the perspective of medical marijuana card holders that desired to legally grow their businesses along with their pot. The panel had an all-star cast, including our friend, preeminent defense lawyer Neil Rockind.

At the conclusion of the presentation, Mr. Rockind told the packed room to be on the lookout for a big-news-splash coming soon on the topic of blood testing for marijuana. The following month, Rockind, along with two other well-known medical marijuana lawyers, filed a complaint with the U.S. Department of Justice's Office of Investigative & Forensic Sciences.

The primary thrust of this complaint accuses the Michigan State Police crime laboratory with negligence and, worse, intentional deceit. The complaint, in a 7-page letter to the DOJ forensic office's director, alleges that the lab is influenced by the state prosecutor's association in its method of reporting lab results such that a report that would normally support a misdemeanor charge [i.e. use of marijuana, or driving under the influence of drugs] is elevated to a felony [i.e. possession or manufacture of synthetic marijuana].

In doing so, Rockind characterizes the prosecutor's influence, in getting the lab to deviate from established scientific principles, as political; the crime lab has become politicized. The result is that a scientific lab now produces forensic reports that support a felony rather than a misdemeanor conviction.

Toward the end of the complaint, Rockind requests an audit by the DOJ's forensic office pursuant to General Accountability Office standards, as well as a Michigan State Police internal affairs investigation, apparently already underway.

If his allegations are proven, then it does give us grave concerns over here at the Law Blogger that forensic crime labs, tasked with getting to the scientific truths of a specific case, can be influenced in their reporting methods by a political organization like the prosecutor's association. We will certainly monitor this file as it moves through the DOJ.

Post #521

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