Category: Justice

Before I Put Polanski on My List of

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They Who Must Not Be Named, like he cares about whether or not I write about him, let me repeat what Atrios Said:

I really was going to try to avoid Polanski blogging, but then Richard Cohen referred to drugging and raping a 13 year old over clear objections as her being ‘seduced.’

What is wrong with these people?”

This was never seduction.

You can argue that he is a talented artist, and he is, Chinatown is brilliant.

You can argue that his trial was ineluctably tainted, by virtue of prosecutorial and judicial misconduct, and the trial was ineluctably tainted by those actions..

You can argue that the time has passed for this, as the victim has.

But the coercion, drugging, and penetration of a 13-year old girl is not a “seduction,” it’s a rape, and the only reason that moral pygmies like Richard Cohen call it seduction is because they profoundly believe that there should be no consequences for people that they deem consequential.

I do now know whether Roman Polanski is a monster, or a sick victim, but I do know that Richard Cohen is a monster.

Massachusetts Senate Update

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The Massachusetts Republican Party just filed for an injunction against Paul Kirk’s appointment to the US Senate.

The issue is that under the state constitution, laws do not take effect for 90 days unless they are declared “emergency laws,” as Governor Patrick has.

No clue as to the finer constitutional points here.

[update]
The judge has not granted an ex parte restraining order, which would immedieatly stay the restraining order, which implies the court expects arguments and motions to be done well before the formal Friday appointment and/or that the Republicans have little or no case.

Sotomayor Challenges the Idea that Corporations are People

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One day, I want to have a WSJ type picture of me published

When Obama nominated her, I figured that she would be a standard Democratic weasel choice, like Ruth Bader Ginsberg, in rock ribbed support of Roe v. Wade, but otherwise, not inclined to rock the boat.

Well, Jess Bravin saw some indications that she may be rather more inclined to change things than I had anticipated:

But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

In challenging the opinion, or more accurate clerks notes, in Santa Clara County v. Southern Pacific Railroad, the corporations are legal persons with constitutional rights, she is making a big statement on her position on corporate law, and it is significantly to the left of the court, and IMHO, the right position.

It could be that she feels that extending the idea of corporate civil rights to unlimited political donations crosses a line, but hopefully, it means more than that.

It’s a Start

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One of the well known facts out there is that defamation law in the UK is positively insane and tilted in favor of the plaintiff that the phrase”Libel Tourism,” has been coined.

It places the burden on the defendant to prove that the statement is true, and in the case of web publications, every web page served is treated as a separate publication for the determination of damages.

Well, as one of the few growth industries in the UK, what with investment banking in the toilet, and the fact that this is a useful way for politicians to browbeat the press, there has been little, if any, movement to change these laws.

That being said, it looks like someone has gotten a bit of a clue, and decided that each hit on a web page is like each newspaper delivered, so , but it now appears that some common sense in terms of the internet, where the government is proposing to change the law so that each web page hit is not another incident of defamation:

The Government proposes changing the law so that a ‘single publication’ rule applies. “A possible alternative to the multiple publication rule would be to adopt a single publication rule,” said the consultation. “This would mean that instead of the limitation period running from the time of each publication of the defamatory material, it would run from the date of the first publication, even if copies of the material continued to be made and re-published years later.”

“A single publication rule would provide clarity and prevent the possibility of open-ended liability. It would also remove some of the potential obstacles presented to defendants by the multiple publication rule, such as the possibility of having to mount a defence against an old claim,” it said.

BTW, if you want to know just how f$#@ed up British defamation law is, note the precedent cited in the article, “

The Times newspaper took a case to the European Court of Human Rights arguing that the multiple publication rule was so onerous a burden for newspapers in the internet age that it had a ‘chilling effect’ on their right to free speech, as guaranteed by the European Convention on Human Rights, which the Court enforces.

The Court, though, ruled that a precedent from the 19th century involving a servant of the Duke of Brunswick looking up an article in a library forming the basis of a defamation suit meant that UK law did not breach the Times‘s rights.

Looking up an article in the library is defamation? This is truly whack.

About Bloody Time!!!!

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If you own a licensed version of MicroFlaccid’s Windows operating system, you have no doubt encountered the nagware program on Windows Genuine Advantage, which serves no purpose but to prevent unauthorized copies of the operating from being installed.

It should be noted that it also frequently locks people out with proper licenses, after they do things like replace a motherboard of a hard drive, and the installation of the upgrade is deceptive, saying that it provides system security, when what it really provides Microsoft with is revenue protection.

Well now, after discovering that the software phones home, a lawsuit has been filed against Microsoft as a purveyor of spyware:

A US lawsuit has alleged that Windows Genuine Advantage (WGA), Microsoft’s controversial anti-piracy software, is little better than spyware.

A lawsuit (which seeks class-action status) filed in Washington district court last week also cries foul over false advertising as well as allegations of privacy law violations, Electronista reports. More specifically, the suit alleges that the XP version of WGA was offered to users as a security update rather than as an anti-counterfeiting technology.

WGA phones home to Microsoft daily with IP address and other information on users. The latest lawsuit, like others against WGA before it, takes exception to this behaviour.

The case here is pretty easy to understand, so let’s look at what the program is and does, and compare it to spyware:

What WGA Does Is it Spyware
Does it install on your system without notifying you of what it does? Yes, it calls itself a security upgrade 
                               
Does it contact the “mother-ship” regularly and without your approval? Yes, it does.   
  
                                                            
Does the Removal of the program require extraordinary measures? Yes, the only removal mechanism is reformat and reinstall the system
Does the program have interfere with the system function? Is this intentional? Yes
Yes
 

Dude, you’ve got spyware!

And Andy Cuomo is on the Case

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OK, we all know the story, Bank of America bought Merrill Lynch, but before the deal closed, they discovered that they had uncovered a toxic waste dump and bonus mill, not a brokerage, and when they tried to get out of it, the Treasury and the Fed leaned on them not to.

That much is clear. What is not clear is just how badly this is flubbed, how much pressure was put on BoA, and whether any laws were broken.

In any case, the SEC has been investigating this, and about 3 weeks ago, when presented with a settlement, Judge Jed Rakoff balked, saying that the settlement seemed not to make any sense: The fines were too low, and the conditions were too favorable to BoA:

U.S. District Judge Jed Rakoff in Manhattan said today that he wants a fuller explanation of the settlement by Sept. 9. He wants to know why the SEC accepted the bank’s claim that executives who issued a misleading statement relied on lawyers’ advice and why the agency didn’t press the bank to waive its attorney-client privilege to keep communications with counsel confidential.

Relying on lawyers’ advice can be a defense to a securities fraud lawsuit. At a trial, in order to invoke the defense, defendants must waive their attorney-client privilege, the SEC has said.

“This is puzzling,” Rakoff wrote in a four-page order today. “If the responsible officers of the Bank of America, in sworn testimony to the SEC, all stated that ‘they relied entirely on counsel,’ this would seem to be either a flat waiver of privilege or, if privilege is maintained, then entitled to no weight whatsoever, since the statement cannot be tested.”

So what the SEC has been doing is to say that they accept the claim of bad legal advice, but will not demand any proof by actually looking at this legal advice. IANAL, but this is just fracked, so he deferred it, and today, he has out right rejected the settlement.

And now we are starting to see weirdness, specifically the fact that Merrill’s general counsel was summarily fired 4 days after the deal closed. (also here).

We’re talking seriously, “He was immediately escorted from the building without being permitted to return to his office,” fired.

And now, Bank of America is refusing to waive privilege in order to get to the bottom of this, they are demanding to be let off without having any proof, and while the SEC is good with this, Andrew Cuomo is not.

He is now writing letters making it clear that anyone who attempts to suggest that it was bad legal advice, but refuses to supply legal memoranda will be subject to prosecution (also here):

I think that is legal speak for pulling out the hand cuffs, and saying talk now, co%$-suckers.

Bank of America is denying all wrong doing, of course, and the SEC continues to aggressively stonewall both Cuomo and Rakloff.

Maybe I’,m just a paranoid son of a bitch, but I think that there is something very big and very ugly under this rock.

Warning To Whistleblowers: If You Turn in Big Fish, We Will Destroy You

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Bradley Berkenfeld was the man who turned informant to reveal that Swiss Bank UBS was actively aiding and abetting fraudulent schemes to evade taxes.

He has now been sentenced to 40 months in a Federal prison, while folks like Igor Olenicoff, who hid hundreds of millions of dollars from the IRS are getting probation:

Birkenfeld got slammed because, for all the good he did, he didn’t tell on himself. So prosecutors sought a 30-month prison term for him, and a federal judge in Fort Lauderdale, Florida, ratcheted it up to 40 months at sentencing last week.

…

If you’re looking to ferret out waste, fraud and abuse, that notorious trio of government parasites, there is nothing like an insider.

That is why Congress has for years passed laws encouraging whistleblowers by offering job protection to government employees and a cut of any funds recovered because of their informing.

The Birkenfeld sentence stands as an insult to any claim that the government wants whistleblowers to step up. Fear of retaliation and career suicide make it hard enough to rat on your boss. Now you can add the possibility of prison time as payment for your effort.

…

Prosecutors better hope that Birkenfeld’s tips will last them a very long time. They shouldn’t expect more whistleblowers to show up any time soon.

The author of this article, Ann Woolner misses the point: This is not a bug, it’s a feature.

Prosecutors and judges have a long history of going after white collar whistle-blowers with jail time because they don’t want people to rat out rich people, who after all, are not like you and me, and should not be subject to the rule of law.

In eulogizing Dominick Dunne, Daily Beast correspondent Allan Dodds Frank sheds some light on this attitude:

He [Dunne] had a view that nonviolent crimes committed by the upper class were understandable, defensible, and often just part of what they do. Martha and Al were getting raw deals, he felt. In fact, white-collar crime was so commonplace and garden variety that he had no desire to cover the great corporate crooks of the era who had so little class.

(emphasis mine)

Not enough bullets.

He Should Not Be Prosecuted for Marijuana Possession

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Because no one should be prosecuted on marijuana possession.

On the other hand, Andrew Sullivan’s endorsement of the racist pseudoscience of the Bell Curve, and his publication of the lies of Betsy McCaughey while editor-in-chief of The New Republic should be grounds for deportation from the United States on moral grounds.

You see Andrew Sullivan was smoking pot on the beach in Massachusetts, where marijuana possession has been decriminalized, only it was on a federal beach, and that makes it a federal beef.

The prosecutors decided not to pursue charges, which basically amount to a $125 fine, though they did with 3 other defendants that day, and US Magistrate Judge Robert B. Collings believes that this was a case of prosecutors not applying the law equally or fairly:

Three other defendants charged with the same offense had to appear before Collings the same day as Sullivan, the judge noted. But Sullivan’s case was the only one prosecutors did not pursue, out of concern that the $125 fine carried by the relatively minor offense could derail his US immigration application.

“It is quite apparent that Mr. Sullivan is being treated differently from others who have been charged with the same crime in similar circumstances,’’ Collings wrote in the 11-page memorandum, adding that prosecutors’ rationale for the dismissal was inadequate.

Collings added with obvious irritation that he had no power to order prosecutors to pursue the case, and granted their motion to dismiss it. The fact that he did, however, “does not require the Court to believe that the end result is a just one,’’ he wrote.

Needless to say, the United States Citizenship and Immigration Services, formerly the INS, could do the right thing, and deport him back to that socialist hellhole, England.

I Bet They Didn’t Expect the Spanish Inquisition

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Two investigating judges in Spain who are investigating the torture of Spanish citizens by the United States are demanding more details regarding the Department of Justice investigation.

What is going on here is that the Spanish Judges would be obligated to drop their criminal investigation of if the DoJ was engaging in a credible investigation of Gonzales, Bybee, John, Addington, Feith, and Haynes:

Under Spanish law, the opening of a criminal investigation covering the same matters by the United States would probably lead to the termination or suspension of a case in Spain grounded on universal jurisdiction. However, the Spanish authorities tentatively concluded that suspension of their cases was not warranted at this point because Holder had placed so many limitations on Durham’s work and because it does not appear that Durham is being asked to examine the cases involving the Spanish subjects who were held at Guantanamo.

(emphasis mine)

You see, the problem here is that the Obama administration is just too busy kowtowing to Glenn Beck’s smallest and most delusional whim.

Here is a hint for Barack Obama and His Stupid Minions™: Americans are not that into ideology, but they hate wimps.

It Looks Like Campaign Finance Limits Are Dead

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At least, that is my take on reading Dahlia Lithwick’s observations in court.

We will be seeing corporate sponsored electioneering in 2010, but I expect the 5-4 decision to add a twist which will allow labor unions, which are outspent under today’s rules, to continue to remain in their straight jacket.

We have some profoundly deceitful and venal men on the bench.

This will likely be the 2nd most disgraceful decision in the past 9 years.

Cramdown Has Returned

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And it is about bloody time.

Barney Frank has announced plans to reintroduce a bill to give bankrputcy judges the ability to modify mortgages, it appears that the banks got cocky, and promptly forgot promises of voluntary mortgage mods, as the picture (from here) shows.

It appears that members of Congress are shocked that banks are not willing to do mortgage mods, when they:

  • Cost them money.
  • Require them to post the losses to their balance sheets immediately, as opposed to marking them to face value for the next few years.

Campaign contributions and lobbyists are a much better investment than helping people.

Ashcroft Can Be Sued Over Misuse of Material Witness Statute

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There are limits to the immunity of people in law enforcement.

Basically, it comes down to the fact that you can sue someone for being wrongly arrested or imprisoned, but not for being wrongly indicted or prosecuted, so a 3 judge federal appellate panel, by a vote of 2½ to ½, there was a partial concurrence by one of the judges, said that a Lawsuit against John Ashcroft over the misuse of the material witness statute can proceed.

Basically, the purpose of the material witness statute is to ensure that a witness who might otherwise become unavailable, i.e. skip town, will be available to the authorities, but John Ashcroft used it to detain people on his whim, which the judges describes as, “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Because a prosecutor cannot be sued for a prosecution, but he can be for an arrest.

Glenn Greenwald’s take on this is a good read.

This Looks Bad

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So, the Supreme Court will be looking at overturning the bans on corporate campaign contributions.

The last time this hit, it was 6-3 supporting the bans, but 2 of those 6 votes are now Roberts and Alito, whose jurisprudence is politically motivated hypocrisy rather results oriented, which makes it a 5-4 decision which will overturn the most basic campaign finance regulations.

So much for stare decisis. They explicitly lied to congress during their confirmation hearings, but you won’t be able to get a conviction.

I’m just waiting for the first case where a Chinese owned firm uses funds to aid a political campaign.

Repairing the Damage That Bush and His Evil Minions&trade Have Done

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Barack Obama and Eric Holder have to go on a hiring binge for the DoJ’s Civil Rights Division.

It appears that after 8 years of forcing competent, experienced, and qualified people out, and replacing them with hacks who got their diplomas from the back of cereal boxes, they need to bring in some people who are not implacably hostile to the idea of Civil Rights.

Of course, some of these same hacks, most notably Hans “der Novotenfuhrer” von Spakovsky, who has built a career on keeping blacks from the ballot box, are claiming that this is “nakedly political,” but they think that the law, and for that matter facts, have a liberal bias, to paraphrase Stephen Colbert.

Bad Hair News

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Upon his indictment about 7 years ago

Leaving Prison with hair in a pony tail.

Corrupt Congressman James Traficant has been released from prison after serving 7 years.

Normally, I would not note this, but when I first found the web, I decided that it was impossible for me to create a particularly useful web page, so instead I attempted create the most useless page.

It was dedicated bad hair days, and it’s been kind of moribund for years, but Mr. Traficant is there front and center.