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.
For more information email: info@clarkstonlegal.com

Saturday, July 30, 2016

Notorious RBG and an Independent Judiciary

United States Supreme Court Justice Ruth Bader Ginsburg, sometimes known by her tag Notorious RBG, has been mixing it up of late, openly trashing Republican presidential nominee Donald Trump in a series of interviews. She asserts Trump is uniquely disqualified to be President and that the exercise of his powers of appointment under Article II of the U.S. Constitution would be catastrophic for the federal judiciary and the SCOTUS.

Now, full disclosure: if you were to stroll down the halls of our law firm, you'd bump into a few card-carrying Republicans, but you would not likely find a Trump supporter among them. Nevertheless, we here at the Law Blogger do find it disturbingly distasteful whenever a SCOTUS justice speaks their mind about a sitting President or, more generally, partisan politics.

There are good reasons for that. The federal judiciary is designed to remain independent of the other two branches of government. Recognizing that partisan politics are alive and well at the High Court and throughout the federal courts across the nation, legal professionals still count on the judges assigned to their cases to bring an unbiased and neutral mindset to the decisions they make based on the evidence presented in the cases.

When justices speak out publicly, it shatters this illusion. Who could forget election night 2000 when Justice Sandra Day O'Connor, the first woman appointed to the SCOTUS, infamously quipped that it was "terrible" that Al Gore was apparently heading for victory and then, months later, participated in one of the more historically partisan decisions ever to be issued by the High Court.

The code of judicial ethics only binds lower federal court judges; one tenet proscribes a federal judge from commenting on a presidential election. While this ethical code does not bind justices of the Supreme Court, there is nevertheless a powerful custom, usually observed by the justices, requiring them to maintain a safe distance from the partisan politics in which the other  two branches marinate.

Predictably, Trump immediately called upon RBG to resign following her public commentary on his candidacy. Democrats have been calling for the 83 year old justice to resign since 2010, long before President Obama became a lame duck, now powerless to appoint a successor to the Notorious One.

Post #552

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Monday, July 25, 2016

The Prosecutor's Blue Book

Full disclosure: as criminal defense lawyers, we would certainly appreciate getting our hands on the so-called "Blue Book"; a practice manual rumored to circulate among federal prosecutors. One of the primary topics allegedly covered in the manual is a prosecutor's duty to disclose exculpatory evidence.

Our criminal justice system is designed to prevent, to the largest degree possible, the possibility that an accused person is convicted of a crime they did not commit. One of the tenets that furthers this principle is that prosecutors have a solemn duty to disclose exculpatory evidence to the defense lawyer representing the accused.

A few years ago, as this Blogger was heading to trial with a client accused of a sexual assault, the assistant prosecutor turned over reports from the alleged victim's high school that she had, on at least two other occasions, made similar allegations involving fellow students that were proven false. Here's the catch: the assistant prosecutor was leaving her job to practice criminal defense and did not send me the evidence until a week before she left her job.

We were acquitted in that case but I've often wondered whether I would have received the evidence if the assistant prosecutor did not leave her post a month prior to the trial. Although our use of the evidence was limited by the trial court judge, it still had a favorable impact on the development of our defense.

In an interesting recent case, the National Association of Criminal Defense Lawyers sued the Justice Department using the Freedom of Information Act to obtain a copy of the federal criminal discovery blue book. The genesis of the case arose from the reversed conviction of former U.S. Senator from Alaska Ted Stevens, where prosecutors elected not to turn over materials necessary for his defense.

According to the D.C. Circuit Court of Appeals, the book contains, "information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants." The USDOJ refused to disclose the book, asserting it was exempt from FOIA as attorney-client work-product; both the district court and the Ninth Circuit agreed.

So the blue book will not see the light of day unless an Assistant United States Attorney leaks one to the press or to the criminal defense bar. Not a likely scenario.

Nevertheless, we can presume the blue book deals with exculpatory evidence and how to handle it from a prosecutorial point-of-view. As criminal defense lawyers, we would like to believe that such evidence is routinely disclosed so that innocent folks are not convicted and the path toward the truth is respected in each case.

The cynical among us say that's way too much to ask.

Post #551

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Wednesday, July 20, 2016

Supreme Court Holds Pandora Users Not Imbued With Privacy


Readers of this Blawg are familiar with our view that persons who call things up on the Internet with keystrokes on their computer do not have a reasonable expectation of privacy as to their on-line activity. The Michigan Supreme Court advanced this view in a case that pitted the music streaming service Pandora against one of its users in a class action lawsuit that originated in federal court in California.

For those that do not know, Pandora streams music based on a user's preferences; the user cannot store, download or rewind the tune. A premium version of the service allows a user to skip commercials for a monthly fee.

A user can indicate preferences by creating a music "station" by searching for a song, artist or genre, or by indicating "thumbs up" or "thumbs down" for each song streamed by Pandora in response to the user's search request. Over time, Pandora utilizes complicated algorithms to refine a user's musical tastes, and uses that data to select new songs it thinks the user will like based on that user's input.

The California federal courts have defined a stream as, "an electronic transmission that renders the musical work audible as it is received by the client-computer’s temporary memory." Peter Deacon, a Michigan resident and Pandora user, sued Pandora in federal court for violation of Michigan's preservation of personal privacy act [also known as the video rental privacy act - VRPA].

Deacon sued in the Northern District of California based on diversity jurisdiction: each party to the lawsuit is from a different state. Deacon is from Michigan and Pandora's headquarters are located in Oakland, California.

The trial court ruled in Pandora's favor, dismissing Deacon's lawsuit. On appeal, the Ninth Circuit Court of Appeals, in a relatively rare procedure, certified a legal question to the Michigan Supreme Court:
Has Deacon stated a claim against Pandora for violation of the VRPA by adequately alleging that Pandora is [in] the business of “renting” or “lending” sound recordings, and that he is a “customer” of Pandora because he “rents” or “borrows” sound recordings from Pandora?
The Michigan Supreme Court concluded that Deacon is not a "customer" of Pandora as he did not "rent" songs due to the fact that he did not pay Pandora for the right to listen to its stream.

Deacon claimed violation of the Michigan law on the basis that Pandora made its users' profiles available and searchable on the Internet. Also, Deacon claimed Pandora tied those user profiles into the users' Facebook profiles without the users' knowledge or permission.

Our High Court started its analysis by stating the purpose of the personal privacy protection act: to preserve personal privacy with respect to the purchase, rental, or borrowing of certain materials and to punish violators of such privacy. The central provision of the Act provides:
a person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings shall not disclose to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.
The Act defines a "customer" as "a person who purchases, rents, or borrows a book or other written material, or a sound recording, or a video recording." The Act, however, does not define "rent" or "borrow".

In a unanimous decision, the Supreme Court concluded that renting requires a payment of some type and Deacon availed himself only of Pandora's free services. Nor did he borrow the recordings as there was no implied promise to return the item borrowed.

Therefore, Deacon is not a customer within the scope of the privacy act according to the Michigan Supreme Court. The decision will now be considered in the federal case pending on appeal in San Francisco.

We here at the Law Blogger again find ourselves warning our readers: when your fingers do the walking on your computer keyboard, do not hold onto a sense of privacy regarding where you've been on the Internet.

Post #550

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Friday, July 15, 2016

Oakland Family Court Judge to Challenge Misconduct Findings

Special Master Dan Ryan
Fallout for Oakland Family Court Judge Lisa Gorcyca on the Tsimhoni parental alienation case continued this month with the release of the Special Master's report to the Judicial Tenure Commission. The report made findings of judicial misconduct that Judge Gorcyca has the opportunity to challenge prior to the case heading to the Michigan Supreme Court for disposition.

Judge Gorcyca's lawyer, Thomas Cranmer of the Miller Canfield law firm, has vowed to challenge retired Judge Dan Ryan's findings as Special Master, and has until July 29th to file a statement of objections. This case will continue for the balance of this calendar year.

Here is how Judge Ryan concluded his 34-page report:
Contrary to the chilling impact Judge Gorcyca contends this case will have on judges across the state, this is not a case that stands for the proposition that judges cannot employ stern language or make difficult decisions from the bench in contentious cases. It is a disciplinary action which stands for the singular proposition that if a judge is going to use the inherent power of contempt, the ultimate “tool in the tool box” after years of “frustration,” the judge may wish may wish to consult the owner’s manual to make sure that she or he are using the tool properly before employing one of the 34 penultimate tools of inherent judicial power, a contempt finding, to deprive any individual, or children in this case, of their liberty.
Prior to the case being placed on the Supreme Court's docket for the next term, Judge Gorcyca's case goes to the full Judicial Tenure Commission for a review of the Special Master's findings. The JTC can dismiss the complaint at that time, or make recommendations to the Supreme Court.

The "next steps" in this procedure are summarized by the Commission on its website:
After hearing the testimony, or after reviewing the master’s findings, the Commission may dismiss the matter if it determines that there has been insufficient evidence of misconduct.  However, if the Commission determines that misconduct has been established by a preponderance of the evidence, it may recommend that the Michigan Supreme Court impose discipline against the judge.  The Commission itself has no authority to discipline a judge; the Michigan Constitution reserves that role for the Supreme Court.  The Commission may recommend that the Court publicly censure a judge, impose a term of suspension, or retire or remove the judge from office.  The Commission issues a Decision and Recommendation, which triggers the next series of steps.
It is difficult, given the misconduct findings of the Special Master, to predict what the plenary JTC will do, but we here at the Law Blogger think we know what the Supreme Court will do, regardless of any recommendations from the JTC.

Respectfully, while we applaud how Judge Ryan set about doing the difficult job he was asked to perform, we disagree with his ultimate conclusions, and agree with Judge Gorcyca on one key point: the next family court judge that considers making a hard decision to enforce her orders in a high-conflict custody matter will no doubt think twice about resorting to her contempt powers. In our opinion, that impacts the independence of the judiciary in the wrong way.

To appeal a decision to a higher tribunal is one thing; but to remove a jurist from the bench essentially as a consequence for a particular decision is not the way courts are designed to function.

Accordingly, while the Supreme Court may agree with the tone of Judge Ryan's misconduct findings, we here at the Law Blogger believe the High Court will reject any JTC recommendation of reprimand or suspension in this case. We hasten to add, in our opinion, that is the right result.

Regardless of the outcome, this case now stands for the proposition that family law professionals of every stripe, eventually, will bear the scars of their work in the industry.

Post #549

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Wednesday, July 6, 2016

The Legality of Bitcoin

The mysterious Satoshi Nakamoto released Bitcoin software in late 2008. The actual identity of the code founder, who promptly disassociated himself, or itself, with Bitcoin, has never been proved, remaining a matter of conjecture.

Bitcoin was designed as an electronic cryptocurrency traded on a decentralized network as a way to move and hold money.

One of the unique features of Bitcoin as a traded currency is that its encryption algorithms allow a holder to remain anonymous. Because of this, the electronic currency has been associated with a growing number of illegal transactions in the sale of arms and illegal drugs; think of the now-defunct Silk Road.

Prior to its Silk Road notoriety, Bitcoin was largely unknown until 2013 when, due to the high volume of bitcoin trades in China, its price began to spike, reaching $1000 for a single Bitcoin. There is wide-spread speculation that Chinese investors are using Bitcoin to evade the capital controls of the Chinese government.

Bitcoin was designed to be traded on a closed network of tightly controlled servers. One of the issues that has cropped-up with the cryptocurrency as it approaches its ten-year mark is whether the network should be expanded. With a network purposely limited to conducting only 7 transactions per second, there is a significant and growing backlog of transactions.

Publicity of this price spike fostered another interesting aspect of cryptocurrency: Bitcoin mining. Bitcoin mining is where a network of dedicated computers perform calculations designed to seek out and acquire the newly released Bitcoins. The activity has become organized into mining pools; the largest ones are in China.

Bitcoin mining pools are acquiring clout as well as Bitcoins. These mining pools, consistent with the software design of the cryptocurrency, get votes on software changes and other administrative decisions affecting the currency.

Estimates predict that all Bitcoins will be "mined" within the next 10-years, lessening the reward for conducting such energy and time-consuming activity until such reward reaches zero. When this happens, the costs of Bitcoin transactions will increase.

In recent years, companies that have attempted to manage a Bitcoin exchange have been burned. Mt. Gox, a Japanese Bitcoin exchange, was hacked in 2014 and lost the equivalent of $350 million in Bitcoins; it promptly filed for bankruptcy.

On the other hand, processing fees for Bitcoin transactions are relatively low; about 15 cents. Transfers of the currency across boarders is done without the typical banking delays [3-5 business days] and higher fees associated with wire transfers and credit card purchases.

The terrorist group ISIS has posted requests for its financial supporters to send Bitcoins to pro-ISIS websites. It is unlikely, however, that such a cash of Bitcoin would be converted to hard currency.

Unlike cash, Bitcoin does still leave a digital trace that can be unraveled given sufficient time and resources. The undoing of the Silk Road, for example, took a specialized FBI and U.S. Treasury joint task force 18-months. As a result, the FBI is currently holding one of the largest cashes of Bitcoin in the world; estimated to be worth over $28 million.

Despite the stigma of criminal activity associated with cryptocurrencies, retailers such as Amazon and eBay have started to accept Bitcoin payments. Locally, the Bronx Deli in Pontiac has a sign in their door pronouncing Bitcoin as an accepted as a medium of exchange.

In a recent decision coming out of Miami, a trial court judge ruled that Bitcoin had a long way to go before it could be considered the equivalent of money. The criminal case involved allegations of money laundering and was dismissed because the judge concluded Bitcoin was not money therefore there could be no money laundering.

Thus, while Bitcoin may have attributes as a medium of exchange, it is not as solid as a unit of account; folks don't always know what the value of a Bitcoin is due to its tendency for flux. This makes the currency less attractive.

Will Bitcoin be as ubiquitous as Facebook, or as functional and accepted as the U.S. Dollar? Only time will tell.

We here at the Law Blogger will continue to monitor its development, advising our readers along the way.

Post Script: A week after this post, Bitcoin plunged in value relative to the U.S. Dollar because an exchange in Hong Kong was hacked; here is the NYT article detailing same.

Post #548

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