Tag: Civil Rights

Good

Finally, a court has ruled that in order for a DNA test to be admitted as evidence, the source code must be made available to the defense.

To my mind, any software used for prosecutions should be publicly available for review:

A New Jersey appeals court has ruled that a man accused of murder is entitled to review proprietary genetic testing software to challenge evidence presented against him.

Attorneys defending Corey Pickett, on trial for a fatal Jersey City shooting that occurred in 2017, have been trying to examine the source code of a software program called TrueAllele to assess its reliability. The software helped analyze a genetic sample from a weapon that was used to tie the defendant to the crime.

The maker of the software, Cybergenetics, has insisted in lower court proceedings that the program’s source code is a trade secret. The co-founder of the company, Mark Perlin, is said to have argued against source code analysis by claiming that the program, consisting of 170,000 lines of MATLAB code, is so dense it would take eight and a half years to review at a rate of ten lines an hour.

MATLAB is a pretty high level language, so if you have 170,000 lines of code in it, you are writing bloated code. 

Also, if you have 170,000 lines of code in it, I guarantee that there are bugs, and likely substantial ones, because most of those lines of code are there to handle edge (unlikely) cases, where the programmer has to make broad assumptions about the data.

………

On Wednesday, the appellate court sided with the defense [PDF] and sent the case back to a lower court directing the judge to compel Cybergenetics to make the TrueAllele code available to the defense team.

“Without scrutinizing its software’s source code – a human-made set of instructions that may contain bugs, glitches, and defects – in the context of an adversarial system, no finding that it properly implements the underlying science could realistically be made,” the ruling says.

Kit Walsh, senior staff attorney for the Electronic Frontier Foundation, hailed the appellate ruling. “No one should be imprisoned or executed based on secret evidence that cannot be fairly evaluated for its reliability, and the ruling in this case will help prevent that injustice,” she said in a blog post. If TrueAllele is found wanting, presumably that will not affect the dozen individuals said to have been exonerated by the software.

It should be noted that the studies “validating” TrueAllele have been conducted by Mark Perlin, and as such are suspect.

Also, though these are slightly different application, we already know that algorithms used for health care software, Zoom face detection, educational evaluations, and criminal sentencing are all explicitly racist.

It is no stretch to assume that an algorithm explicitly developed for police and prosecutors would be biased in their favor.

That is how you make sales.

Fuck Me, I Agree With Pat Buchanan’s Rag

At the American Conservative, they write, “Don’t Let the Riots Legitimize Facial Recognition Tech,” and they are correct.

Law enforcement has an endless appetite for expansion of their powers, and will always do so.

Letting the Capitol insurrection to give additional powers to the US State Security Apparatus is a bad idea, particularly given the predilection of law enforcement to ignore right wing terrorists to go after left wing protesters.

Live in Obedient Fear, Citizen

In response to the Supreme Court ruling Carpenter v. United States in 2018, whcih stated that law enforcement had to get a warrant to track people via their cell phones, elements of the US State Security Apparatus are purchasing exactly the same data from commercial suppliers without a warrant.

We need to make it illegal for US law enforcement to get private data from commercial suppliers that would otherwise require a warrant, if just because it would knock the pins out from underneath literal vampire* capitalist Peter Thiel’s business plan for Palantir.

Purchasing commercial information should not be allowed to be an excuse for using commercial vendor as a cut-out to the 4th amendment:

A military arm of the intelligence community buys commercially available databases containing location data from smartphone apps and searches it for Americans’ past movements without a warrant, according to an unclassified memo obtained by The New York Times.

Defense Intelligence Agency analysts have searched for the movements of Americans within a commercial database in five investigations over the past two and a half years, agency officials disclosed in a memo they wrote for Senator Ron Wyden, Democrat of Oregon.

The disclosure sheds light on an emerging loophole in privacy law during the digital age: In a landmark 2018 ruling known as the Carpenter decision, the Supreme Court held that the Constitution requires the government to obtain a warrant to compel phone companies to turn over location data about their customers. But the government can instead buy similar data from a broker — and does not believe it needs a warrant to do so.

“D.I.A. does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially available data for intelligence purposes,” the agency memo said.

Mr. Wyden has made clear that he intends to propose legislation to add safeguards for Americans’ privacy in connection with commercially available location data. In a Senate speech this week, he denounced circumstances “in which the government, instead of getting an order, just goes out and purchases the private records of Americans from these sleazy and unregulated commercial data brokers who are simply above the law.”

………

It has been known that the government sometimes uses such data for law enforcement purposes on domestic soil.

The Wall Street Journal reported last year about law enforcement agencies using such data. In particular, it found, two agencies in the Department of Homeland Security — Immigration and Customs Enforcement, and Customs and Border Protection — have used the data in patrolling the border and investigating immigrants who were later arrested.

………

The military has also been known to sometimes use location data for intelligence purposes.

In November, Vice’s Motherboard tech blog reported that Muslim Pro, a Muslim prayer and Quran app, had sent its users’ location data to a broker called X-Mode that in turn sold it to defense contractors and the U.S. military. Muslim Pro then said it would stop sharing data with X-Mode, and Apple and Google said they would ban apps that use the company’s tracking software from phones running their mobile operating systems.

………

Mr. Wyden’s coming legislation on the topic appears likely to be swept into a larger surveillance debate that flared in Congress last year before it temporarily ran aground after erratic statements by President Donald J. Trump, as he stoked his grievances over the Russia investigation, threatening to veto the bill and not making clear what would satisfy him.

The the 4th amendment should never be for sale.

*I do mean this characterization of Thiel literally.  He is literally a vampire who wants to use the blood of the young to extend his lifespan.

Nope, No Coup Attempt Here

It’s every day that the President of the United States calls the Republican members of a county canvassing board just to wish them well.

Also, it’s every day that the President of the United States calls the Republican leaders of a state legislature to lobby them about appointing their own electors.

We can make all the jokes we want about the efforts of his Evil Minions™ dissolving into a, “Nearly liquid mass of loathsome — of detestable putridity,” but this is an attempted coup, and should be confronted as such:

President Trump has invited the leaders of Michigan’s Republican-controlled state legislature to meet him in Washington on Friday, according to a person familiar with those plans, as the president and his allies continue an extraordinary campaign to overturn the results of an election he lost.

………

Trump lost Michigan by a wide margin: At present, he trails President-Elect Joe Biden in the state by 157,000 votes. Earlier this week, the state’s Republican Senate majority leader said an effort to have legislators throw out election results was “not going to happen.”

But the president now appears to be using the full weight of his office to challenge the election results, as he and his allies reach out personally to state and local officials in an intensifying effort to halt the certification of the vote in key battleground states.

………

Trump’s team appear to be increasingly focused on Michigan as a place where Republican officials — on the state’s Board of Canvassers and in the legislature — might be persuaded to overturn the results.

Earlier this week, Trump called a member of Wayne County’s Board of Canvassers after a contentious meeting in which she first refused, and then agreed, to certify election results from the state’s largest county. She subsequently released an affidavit seeking to “rescind” her vote for certification — a move that the secretary of state’s office said was impossible.

Legal experts condemned the president’s actions, saying he was trying to use the power of his office to alter the vote.

“To bring the weight of the White House and the presidency onto an individual county canvassing board commissioner about what to do with certification is an incredible assault on the democratic process,” said Richard H. Pildes, a constitutional law professor at New York University. “No question about that.”

Joanna Lydgate, the national director of the Voter Protection Program, said that “there is no basis in fact or law for failing to certify the election.”

………

“It changes the result of the election in Michigan if you take out Wayne County,” he said. Wayne County includes Detroit, the state’s heavily Democratic, majority-Black largest city.

Also on Thursday, Trump’s efforts seemed to have gained some traction, with the news that Michigan’s GOP leaders appear willing to meet with him.

The Detroit News reported that the state GOP legislative leaders who plan to visit the White House on Friday are Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield.

………

In Michigan, the high-water mark for Trump’s efforts so far came Tuesday night, during an hours-long meeting of the Wayne County board of canvassers. The board’s two GOP members voted against certifying the county’s results, which overwhelmingly favored Biden. But then, after three hours of angry comments from the public, the two GOP members changed their minds and voted to certify the results.

………

Palmer and Hartmann said they had agreed to certify Wayne County’s results on the condition that they be audited by state authorities, to resolve small errors in the counts of voters at some Detroit precincts. The number of votes affected is believed to be in the hundreds, far less than Biden’s margin of victory in Michigan.

………

Supervisors in rural Mohave County, a Republican stronghold bisected by the Grand Canyon, were set to canvass their county vote at a public meeting on Monday. Instead, they decided to delay their vote and take it up again on Nov. 23 — the deadline for certification.

The supervisors agreed that they didn’t question whether the results in their own county were accurate. Instead, one GOP supervisor said, they wanted to show solidarity with the president’s challenges elsewhere.

“It has nothing to do with our results,” Supervisor Hildy Angius said in explaining her vote. “It’s more of a big picture sort of thing.”

The big picture is called “Seditious Conspiracy,” and it is a felony.

Anyone with two brains cells to rub together and the political acumen of Little Orphan Annie knew that the Republicans were willing and able to resort to coups after the 1998 impeachment and the 2000 Florida debacle.

They view the Democratic Party as completely illegitimate, and because of this they feel justified in using corrupt means to seize power.

Once again, I will quote Robert Graves putting words into Germanicus Caesar’s mouth, with the Republicans fulfilling the role of the Teutonic Tribes:

Spaniards can be impressed by the courtesy of the conqueror, French by his riches, Greeks by his respect for the arts, Jews by his moral integrity, Africans by his calm and authoritative bearing, but Germans are impressed by none of these things. They must be struck into the dust, struck down again as they rise. Struck again while they lie groaning, while their wounds still pain them; they will respect the hand that dealt them.”

—Germanicus Caesar, Roman general
(15 B.C.- 19 A.D.)

Trump and His Evil Minions™ Are Melting

They are melting like the Wicked Witch of the West after Dorothy threw water on her.

It’s a sight: 

Rudy Giuliani, President Donald Trump’s personal defense lawyer who is spearheading the Trump campaign’s effort to overturn the results of the 2020 election, held a bizarre news conference on Thursday that quickly devolved into chaos.

At one point, Giuliani’s hair dye could be seen running down his face. At another, the former New York City mayor quoted the comedy film “My Cousin Vinny” to support his arguments.

Much of the press conference consisted of Giuliani rehashing the same conspiracy theories the president has amplified: that mail-in ballots are fraudulent, that election machines were illegally tampered with, that ballots were secretly dumped, and that Democrats masterminded a vast election-rigging scheme to simultaneously win the White House and get destroyed in down-ballot and state legislative races.

………

At one point in the news conference, Giuliani did an impression of Joe Pesci’s character from “My Cousin Vinny” to back up the Trump campaign’s claim that Republican election observers were not allowed to properly watch the ballot counting.

Later in the presser, Giuliani’s hair dye started dripping down his face.

This is a metaphor for something, but I am not completely sure what.

Oh Lindsey………

Last week, I wrote about reports that Lindsey Graham was pressuring the Georgia Secretary of State to throw out mail-in ballots from counties with large minority populations using signature matching as a pretext.

It appears that there was at least one other witness to this:

………

In an interview Monday with The Washington Post, Georgia’s secretary of state, Brad Raffensperger, accused the senator of trying to pressure him into tossing out legally cast ballots. And Tuesday, after Graham mistakenly told reporters he had spoken with secretaries of state in Arizona and Nevada, those officials rejected that assertion.

“I have not spoken to Senator Lindsey Graham or any other members of Congress regarding the 2020 election,” Barbara Cegavske, the Nevada secretary of state, said in a statement. Cegavske and Raffensperger are Republicans.

 ………

Old friends and colleagues issued warnings Tuesday that there is a line Graham cannot cross with state election officials.

“If all he’s trying to do is get information, people are entitled to do that. If he’s trying to influence the way they perform their duty, that becomes a bit problematic,” said Sen. Sheldon Whitehouse (D-R.I.), a former state attorney general.

In Georgia, state officials showed additional irritation Tuesday with Graham’s intrusion into their world. Gabriel Sterling, a senior staffer in the secretary of state’s office, held a news conference to explain what he heard on the call between Raffensperger and Graham.

“What I heard were discussions of absentee ballots — if there were a percentage of signatures that weren’t truly matching, is there some point where we could go to court and throw out all the ballots,” Sterling said.

Such an action would have disenfranchised many legally cast ballots.

(emphasis mine)

This is not a good look for you, Mr. Graham.

 

Yeah, This Is Appalling

Talk about burying the lede.

 In a Washington Post story about Republicans pressuring the (Republican) Secretary of State to throw out legal ballots, we find this bit of horror from Lindsay Graham:

In the interview, Raffensperger also said he spoke on Friday to Graham, the chairman of the Senate Judiciary Committee, who has echoed Trump’s unfounded claims about voting irregularities.

In their conversation, Graham questioned Raffensperger about the state’s signature-matching law and whether political bias could have prompted poll workers to accept ballots with nonmatching signatures, according to Raffensperger. Graham also asked whether Raffensperger had the power to toss all mail ballots in counties found to have higher rates of nonmatching signatures, Raffensperger said.

Raffensperger said he was stunned that Graham appeared to suggest that he find a way to toss legally cast ballots. Absent court intervention, Raffensperger doesn’t have the power to do what Graham suggested because counties administer elections in Georgia.

“It sure looked like he was wanting to go down that road,” Raffensperger said.

(emphasis mine)

The road that Graham was speeding down was, “Invalidate all the mail in ballots from counties with lots of black and brown people.”

This has been a core Republican value since (checks notes) before John Roberts worked at the Reagan White House.

The party of Abraham Lincoln is now the party of  Jefferson Davis, and one of their most important values is, “Stop n****** from voting.”

I do not know how you find common ground with that.

Again, I invoke Robert Graves’ paraphrase of Germanicus Caesar.

H/t Atrios

This Apple Screw Up Points to a Bigger Picture

Apple rolled out a new operating system for its Macintosh computers, Big Sur, and it slowed down the operation of every Mac with an online connection, whether or not they were running, or even capable of running the upgrade:

Mac users today began experiencing unexpected issues that included apps taking minutes to launch, stuttering and non-responsiveness throughout macOS, and other problems. The issues seemed to begin close to the time when Apple began rolling out the new version of macOS, Big Sur—but it affected users of other versions of macOS, like Catalina and Mojave.

Other Apple services faced slowdowns, outages, and odd behavior, too, including Apple Pay, Messages, and even Apple TV devices.

It didn’t take long for some Mac users to note that trustd—a macOS process responsible for checking with Apple’s servers to confirm that an app is notarized—was attempting to contact a host named ocsp.apple.com but failing repeatedly. This resulted in systemwide slowdowns as apps attempted to launch, among other things.

The big picture here is not that Apple screwed up.  The big picture here, as Jeffrey Paul notes is that your computer no longer belongs to you.  It is under the direct control of a corporation who may or may not have your best interests at heart:

It’s here. It happened. Did you notice?

I’m speaking, of course, of the world that Richard Stallman predicted in 1997. The one Cory Doctorow also warned us about.

On modern versions of macOS, you simply can’t power on your computer, launch a text editor or eBook reader, and write or read, without a log of your activity being transmitted and stored.

It turns out that in the current version of the macOS, the OS sends to Apple a hash (unique identifier) of each and every program you run, when you run it. Lots of people didn’t realize this, because it’s silent and invisible and it fails instantly and gracefully when you’re offline, but today the server got really slow and it didn’t hit the fail-fast code path, and everyone’s apps failed to open if they were connected to the internet.

………

This means that Apple knows when you’re at home. When you’re at work. What apps you open there, and how often. They know when you open Premiere over at a friend’s house on their Wi-Fi, and they know when you open Tor Browser in a hotel on a trip to another city.

“Who cares?” I hear you asking.

Well, it’s not just Apple. This information doesn’t stay with them:

  1. These OCSP requests are transmitted unencrypted. Everyone who can see the network can see these, including your ISP and anyone who has tapped their cables.

  2. These requests go to a third-party CDN run by another company, Akamai.

  3. Since October of 2012, Apple is a partner in the US military intelligence community’s PRISM spying program, which grants the US federal police and military unfettered access to this data without a warrant, any time they ask for it. In the first half of 2019 they did this over 18,000 times, and another 17,500+ times in the second half of 2019.

This data amounts to a tremendous trove of data about your life and habits, and allows someone possessing all of it to identify your movement and activity patterns. For some people, this can even pose a physical danger to them.

Big brother is here, and he’s inside of the house.

Egregious Enough for Even the Supreme Court to Waive Qualified Immunity

Except, of course, for Clarence Thomas, of Course, who thinks that prison officers throwing aprisoner in a sh%$ filled cell, and then threw him naked into a cold cell, is OK, because even in comparison to likely rapist wannabee Brett Kavanaugh, Thomas is a deeply evil man.

The case is Taylor v. Rojas:

In their orders on Monday, the justices struck down a ruling by the U.S. Court of Appeals for the 5th Circuit that had blocked a Texas inmate’s lawsuit against prison officials. The inmate, Trent Taylor, was forced to spend six days naked in cells that contained feces from previous occupants and overflowing sewage. Taylor alleged that prison officials’ conduct violated the Eighth Amendment’s ban on cruel and unusual punishment, but the 5th Circuit, invoking a doctrine known as qualified immunity, ruled that the officials could not be sued because it was not “clearly established” that their conduct violated Taylor’s constitutional rights. Taylor went to the Supreme Court in April, asking the justices to clarify what it means for a constitutional violation to be clearly established.

In a brief unsigned opinion on Monday, the Supreme Court invalidated the 5th Circuit’s decision, without calling for briefing on the merits or oral argument. The justices acknowledged that qualified immunity protects an official who makes a decision that, “even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” But in this case, the justices emphasized, “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.” The court of appeals, the court noted, did not identify any emergency or other need for the prison officials to hold Taylor in these conditions, and the record in the case suggests that at least some of the officials were well aware of – but ignored – the conditions in the cells: One officer, putting him in a cell that was covered with feces, said to another officer that Taylor would “have a long weekend,” while a second officer, putting Taylor in a “frigidly cold” cell, expressed hope that Taylor would “f***ing freeze.” The justices sent the case back to the lower court to allow Taylor’s lawsuit to move forward.

Justice Clarence Thomas dissented from the court’s decision, although he did not file a separate opinion to explain his vote.

Thomas might very well be the worst Supreme Court Justice since Roger Taney.

Now Its Up to the Federal Court

(Update:  The federal judge that it was brought to, the most deranged right-winger in the 5th circuit, has rejected the application for lack of standing.)

The Texas Supreme Court has rejected an effort by Republicans to throw out 127,000 votes in Houston:

A legal cloud hanging over nearly 127,000 votes already cast in Harris County was at least temporarily lifted Sunday when the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively throw out early balloting from drive-thru polling sites in the state’s most populous, and largely Democratic, county.

The all-Republican court denied the request without an order or opinion, as justices did last month in a similar lawsuit brought by some of the same plaintiffs.

The Republican plaintiffs, however, are pursuing a similar lawsuit in federal court, hoping to get the votes thrown out by arguing that drive-thru voting violates the U.S. constitution. A hearing in that case is set for Monday morning in a Houston-based federal district court, one day before Election Day. A rejection of the votes would constitute a monumental disenfranchisement of voters — drive-thru ballots account for about 10% of all in-person ballots cast during early voting in Harris County.

………

The Harris County Clerk’s Office argued that its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore can be available to all voters. The clerk’s filing with the Supreme Court in the earlier lawsuit also said the Texas secretary of state’s office had approved of drive-thru voting. Keith Ingram, the state’s chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally,” according to court transcripts.

Plus, the county argued in a Friday filing that Texas’ election code, along with court rulings, have determined that even if the drive-thru locations are violations, votes cast there are still valid.

“More than a century of Texas case law requires that votes be counted even if election official[s] violate directory election laws,” the filing said.

The challenge was the latest in a flurry of lawsuits on Texas voting procedures filed in recent months, with Democrats and voting rights groups pushing for expanded voting access in the pandemic and Republicans seeking to limit voting options. In this case, the lawsuit filed Tuesday asked the state Supreme Court to close Harris County’s 10 new drive-thru polling places and not count votes that had been cast at them during early voting.

Seriously, this Republican Jihad against voting is a clear and present danger to the Republic, and this needs to be dealt with.

Making a common cause is not possible at this point.

My suggestion is that we take the suggestion historian and author Robert Graves regarding the Germanic tribes during the Roman empire:

Spaniards can be impressed by the courtesy of the conqueror, French by his riches, Greeks by his respect for the arts, Jews by his moral integrity, Africans by his calm and authoritative bearing, but Germans are impressed by none of these things. They must be struck into the dust, struck down again as they rise. Struck again while they lie groaning, while their wounds still pain them; they will respect the hand that dealt them.”

—Germanicus Caesar, Roman general
(15 B.C.- 19 A.D.)

 We need to stop trying to accommodate them. 

And in the Continued War on Voting

In Minneapolis, a Trump official and the police union are trying to bring in retired officers to intimidate voters.

The fact that a Trump administration is trying to gin up a voter suppression effort is no surprise, but the involvement of the PBA, and it’s notoriously president belligerent Bob Kroll in actively recruiting thugs to suppress the vote is crossing the line from the thin blue line to active criminality:

The Minneapolis police union put out a call this week for retired officers to help serve as “eyes and ears” at polling sites in “problem” areas across the city on Election Day, at the request of an attorney for President Donald Trump’s re-election campaign.

The request was made by William Willingham, whose e-mail signature identifies him as a senior legal adviser and director of Election Day operations for the Trump campaign.

In an e-mail Wednesday morning to Minneapolis Police Federation President Lt. Bob Kroll, Willingham asked the union president about recruiting 20 to 30 former officers to serve as “poll challengers” to work either a four- or eight-hour shift in a “problem area.”

“Poll Challengers do not ‘stop’ people, per se, but act as our eyes and ears in the field and call our hotline to document fraud,” the e-mail read. “We don’t necessarily want our Poll Challengers to look intimidating, they cannot carry a weapon in the polls due to state law. … We just want people who won’t be afraid in rough neighborhoods or intimidating situations.”

Kroll then passed on the request to federation members, saying “Please share, and e-mail me if you are willing to assist,” according to a copy obtained by the Star Tribune.

Neither Willingham nor Kroll responded to requests for comment Wednesday.

Bob Kroll is a menace to the citizens of Minneapolis.

The Bobbsey Twins Are At It Again

Jacob Wohl and Jack Burkman have veen indicted in yet another state for their program of threatening voter suppression robocalls.

Seeing as how they have shown themselves to be undeterred from their lives of crime by the prior indictments, I think that pre-trial detention without bail is called for:

A grand jury in Cleveland on Tuesday indicted right-wing political hoaxers Jacob Wohl and Jack Burkman with felony charges connected to a multi-state robocall campaign that prosecutors say was meant to scare voters in urban areas with large minority populations out of voting by mail in the Nov. 3 presidential election.

Wohl, 22, of Irvine, California, and Burman, 54, of Arlington, Virginia, are indicted on eight counts of telecommunications fraud and seven counts of bribery in connection with more than 8,000 calls that were placed to residents of Cleveland and East Cleveland.

Wohl and Burkman already face similar criminal charges in Michigan and a civil lawsuit in New York City connected to the same scheme. They are free on a $100,000 bond after pleading not guilty to charges in that state.

Cuyahoga County court records say Wohl and Burkman are expected to make their first court appearance on Nov. 13.

The charges stem from a group called Project 1599, which Wohl and Burkman founded. The caller told potential voters that police and debt-collection companies could use personal information that voters put on their mail-in ballots to track down people who have outstanding warrants and credit-card debt. The claim is not true.

………

Michigan Attorney General Dana Nessel’s office was the first to file charges against the duo. Ohio’s investigation began when U.S. Rep. Marcia Fudge, a Cleveland Democrat, and others went to Ohio Attorney General Dave Yost’s office, which referred the case to prosecutors in Cuyahoga County, the Columbus Dispatch reporter earlier this month.

………

Ohio Secretary of State Frank LaRose referenced the indictments Tuesday afternoon during an appearance on Ohio Gov. Mike DeWine’s twice-weekly coronavirus address. DeWine invited LaRose on to discuss voter turnout and concerns about in-person voting.

LaRose said that his office received a tip through its voter-fraud website of “an incident of voter intimidation that was targeted particularly at the minority community,” which he called a “really ugly and pernicious act of voter intimidation.”

………

Wohl and Burkman have risen to notoriety in recent years as they blundered their way through a series of public announcements of scandals later discredited.

Wohl earlier this year began circulating what he said was a copy of a lab report showing that Biden had contracted COVID-19 and had 30 days to live. Biden and his campaign dismissed the report as fraudulent.

The pair is also accused of hiring one of Wohl’s ex-girlfriends to publicly accuse Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases who is more popular and seen as more trustworthy on information about the pandemic than Trump, of assaulting her in a hotel in 2014. The woman later told a reporter that the accusation was false and that Wohl and Burkman paid her to levy it.

How do folks like this, and I am including the evil James O’Keefe (I know a good James O’Keef) stay out of jail.

If they weren’t white ……… Oh, now I get it.

Long Overdue

I’m not a big fan of Representative Tulsi Gabbard, but her proposal to allow defendants to use a public interest defense in cases of releases of classified information is an idea long overdue. 

Prosecutions under the Espionage Act frequently resemble a kangaroo court, particularly in Judge Leonie Brinkama’s court, where she has consistently made a vigorous defense by the defendant impossible.

Still, I’m waiting for the other shoe to drop about it, because I do not trust Gabbard:

Legislation proposed in Congress would amend the United States Espionage Act and create a public interest defense for those prosecuted under the law.

“A defendant charged with an offense under section 793 or 798 [in the U.S. legal code] shall be permitted to testify about their purpose for engaging in the prohibited conduct,” according to a draft of the bill Hawaii Representative Tulsi Gabbard introduced.

Such a reform would make it possible for whistleblowers like Edward Snowden, Reality Winner, Terry Albury and Daniel Hale to inform the public why they disclosed information without authorization to the press.

The legislation called the Protect Brave Whistleblowers Act is supported by Pentagon Papers whistleblower Daniel Ellsberg.

“If this long-overdue revision of the 1917 Espionage Act had been law half a century ago, I myself could have had a fair trial for releasing the Pentagon Papers in 1971: justice under law unavailable to me and to every other national security whistleblower indicted and prosecuted since then,” Ellsberg declared.

………

As noted, government employees or contractors prosecuted under the Espionage Act would be allowed an “affirmative defense” under the Protect Brave Whistleblowers Act that they engaged in the “prohibited conduct for purpose of disclosing to the public” violations of laws, rules or regulations, or to expose “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

………

However, the Espionage Act Reform bill appears to do more to prohibit the Justice Department from prosecuting journalists. It specifically ensures “only personnel with security clearances can be prosecuted for improperly revealing classified information” and aims to protect the rights of members of the press that “solicit, obtain or publish government secrets.”

“When brave whistleblowers come forward to expose wrongdoing within our government, they must have the confidence that they, and the press who publishes this information, will be protected from government retaliation,” stated Gabbard.

I like the bill, though my preferred solution, adopting the Swedish concept of Offentlighetsprincipen (openness) as an explicit constitutional right.

Anything that provides more accountability and exposure to the US state security apparatus is a good thing.

About F%$#ing Time, Massachusetts Edition

The Massachusetts Supreme Judicial Court has ruled that prosecutors must tell prosecutors how often specific police officers lie on the stand

I’m not surprised the prosecutors refuse to tell defense attorneys about cops who lie, but I am surprised that the courts have let it slide so long.

Cops lie. Cops lie enough there’s a term for it: testilying. Honest prosecutors don’t want lying cops on the stand dirtying up their case with their impeachable testimony. Unfortunately, police unions are powerful enough to thwart this small bit of accountability. “Brady lists” are compiled by prosecutors. They contain the names of officers whose track record for telling the truth is so terrible prosecutors don’t want to have to rely on their… shall we say… misstatements in court.

Unfortunately, these lists are often closely-guarded secrets. Judges aren’t made aware of officers’ penchant for lying. Neither are defendants in many cases. But they’re called “Brady” lists because they’re supposed to be disclosed to defendants. The “Brady” refers to Brady v. Maryland, where it was decided prosecutors are obligated to turn over possibly exculpatory information to defendants to ensure their right to a fair trial. This includes anything that might indicate the cop offering testimony might not be telling the truth.

The Massachusetts Supreme Judicial Court has ruled [PDF] prosecutors have an obligation to inform defendants of officers who have made their “Brady” lists. Two cops who made false statements in a use-of-force report were granted immunity for their testimony in front of a grand jury. The district attorney prosecuting a different criminal case handed this information over to the defendant. The cops challenged this move, claiming their grand jury immunity should have prevented this exculpatory information from being given to the defendant and discussed in open court. (h/t Matthew Segal)

The cops argued there’s no constitutional duty to disclose this information (under the US Constitution or the Commonwealth’s) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed. The Supreme Judicial Court says that argument is wrong under both Constitutions.

First, prosecutors have more than a constitutional duty to disclose exculpatory information; they also have a broad duty under Mass. R. Crim. P. 14 (a)(1)(iii) to disclose “[a]ny facts of an exculpatory nature.” This duty is not limited to information so important that its disclosure would create a reasonable doubt that otherwise would not exist; it includes all information that would “tend to” indicate that the defendant might not be guilty or “tend to” show that a lesser conviction or sentence would be appropriate.

[…]

Second, even if prosecutors had only their constitutional obligation to disclose, and not the broad duty under our rules, we would not want prosecutors to withhold exculpatory information if they thought they could do so without crossing the line into a violation of the defendant’s right to a fair trial.

This is a SIGNIFICANT expansion to the Brady rule.  The SJC is saying that the information does not have to show innocence, but something that might lead to some reasonable doubt with some jurors, or even that it might result in a more lenient sentence.

This is a big change.

………

The cops also argued their immunity from prosecution during their grand jury testimony should shield them from any adverse consequences. Wrong again, says the court. The immunity only covers prosecution for the admitted crimes. It is not a shield against reputational damage that may result from this information being made public or handed over to defendants.

………

The Court wraps this up by laying down the law: this is Brady info and it needs to be disclosed to defendants. The SJC is not f%$#ing around.

[W]e conclude, as did the district attorney, that the prosecutors here have a Brady obligation to disclose the exculpatory information at issue to unrelated criminal defendants in cases where a petitioner is a potential witness or prepared a report in the criminal investigation. That obligation remains even though that information was obtained in grand jury testimony compelled by an immunity order. And the district attorney may fulfill that obligation without prior judicial approval; a judge’s order is needed only for issuance of a protective order limiting the dissemination of grand jury information.

More broadly, we conclude that where a prosecutor determines from information in his or her possession that a police officer lied to conceal the unlawful use of excessive force, whether by him or herself or another officer, or lied about a defendant’s conduct and thereby allowed a false or inflated criminal charge to be prosecuted, the prosecutor’s obligation to disclose exculpatory information requires that the information be disclosed to defense counsel in any criminal case where the officer is a potential witness or prepared a report in the criminal investigation.

That’s the standard in Massachusetts. And bad cops are on notice there’s pretty much nothing they can do to escape the consequences of their own actions. This is as it should be. Now, if the courts could just make sure prosecutors and police departments are actually compiling Brady lists, we’d be set. At least in this Commonwealth.

Having cops revealed to be liars in open court is a good thing, because those cops are going to get torn up on the stands by defense attorneys, and so will be an embarrassment to the force, and not get promoted. 

It’s more long-overdue accountability.

Yes, Fascism

This is literally subordinating the entire machinery of justice to the personal service of Donald Trump:

Attorney General William P. Barr told federal prosecutors in a call last week that they should consider charging rioters and others who had committed violent crimes at protests in recent months with sedition, according to two people familiar with the call.

The highly unusual suggestion to charge people with insurrection against lawful authority alarmed some on the call, which included U.S. attorneys around the country, said the people, who described Mr. Barr’s comments on the condition of anonymity for fear of retribution.

The attorney general has also asked prosecutors in the Justice Department’s civil rights division to explore whether they could bring criminal charges against Mayor Jenny Durkan of Seattle for allowing some residents to establish a police-free protest zone near the city’s downtown for weeks this summer, according to two people briefed on those discussions.

………

During a speech on Wednesday night, Mr. Barr noted that the Supreme Court had determined that the executive branch had “virtually unchecked discretion” in deciding whether to prosecute cases. He did not mention Ms. Durkan or the sedition statute.

“The power to execute and enforce the law is an executive function altogether,” Mr. Barr said in remarks at an event in suburban Washington celebrating the Constitution. “That means discretion is invested in the executive to determine when to exercise the prosecutorial power.”

The disclosures came as Mr. Barr directly inserted himself into the presidential race in recent days to warn that the United States would be on the brink of destruction if Mr. Trump lost. He told a Chicago Tribune columnist that the nation could find itself “irrevocably committed to the socialist path” if Mr. Trump lost and that the country faced “a clear fork in the road.”

………

The attorney general’s question about whether Ms. Durkan, the former U.S. attorney in Seattle, had violated any federal statutes by allowing the protest zone was highly unusual, former law enforcement officials said.

“The attorney general seems personally, deeply offended by the autonomous zone and wants someone to pay for it,” said Chuck Rosenberg, the former U.S. attorney in the Eastern District of Virginia. “If the people of Seattle are personally offended, they have political recourse. There is no reason to try to stretch a criminal statute to cover the conduct.”

………

Mr. Barr mentioned sedition as part of a list of possible federal statutes that prosecutors could use to bring charges, including assaulting a federal officer, rioting, use of explosives and racketeering, according to the people familiar with the call. Justice Department officials included sedition on a list of such charges in a follow-up email.

………

The most extreme form of the federal sedition law, which is rarely invoked, criminalizes conspiracies to overthrow the government of the United States — an extraordinary situation that does not seem to fit the circumstances of the protests and unrest in places like Portland, Ore., and elsewhere in response to police killings of Black men.

………

Congress has stipulated that a conviction on a charge of seditious conspiracy can carry up to 20 years in prison.

He is also excoriating professional staff for resisting the politicization of the Department of Justice, ignoring the obvious, even the most junior associate at a law firm is required to speak out if they think that what is proposed is illegal or unethical.

If Barr has his law license a year after he leaves office, they system will have failed:

Attorney General William P. Barr delivered a scathing critique of his own Justice Department on Wednesday night, insisting on his absolute authority to overrule career staffers, who he said too often injected themselves into politics and went “headhunting” for high-profile targets.

Speaking at an event hosted by Hillsdale College, a school with deep ties to conservative politics, Barr directly addressed the criticism that has been building for months inside the department toward his heavy hand in politically sensitive cases, particularly those involving associates of President Trump.

“What exactly am I interfering with?” he asked. “Under the law, all prosecutorial power is invested in the attorney general.”

………

Barr said that argument, in essence, means “the will of the most junior member of the organization” would determine decisions, but he insisted he would not “blindly” defer to “whatever those subordinates want to do.”

“Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it is no way to run a federal agency,” he said.

The attorney general, the nation’s top law enforcement official, spent much of the speech eviscerating the idea of the Justice Department as a place where nonpolitical career prosecutors should be left to decide how sensitive cases are resolved.

BTW, what he is describing is why most state forbid corporate owned law firms, because the non-lawyer managers ordering their employees to file unlawful motions.

Andrey Vyshinsky wishes that he was William Barr.

First Reform the Police Need: End Impunity for Lying


Warning: Violence

Josie Huang, an NPR reporter was brutalized and arrested by LA Sheriffs, who then claimed that she was interfering with their actions and did not declare that she was a member of the press.

Unfortunately for them, she caught it all on tape, as her Twitter thread shows:

As Los Angeles County Sheriff’s deputies tackled Josie Huang to the street on Saturday night, the reporter for NPR affiliate KPCC screamed repeatedly she was a journalist. Deputies arrested her anyway, leaving her with scrapes, bruises, a five-hour stay in custody — and an obstruction charge that carries up to a year in jail.

Police claimed Huang, who also reports for LAist, didn’t have credentials and ignored demands to leave the area.

But those claims are contradicted by video Huang shared on Sunday showing her quickly backing away from police when ordered to do so and repeatedly identifying herself as a journalist. Huang said she also had a press badge around her neck.

NPR executives and reporters groups condemned Huang’s arrest, demanding her charges be dropped and the sheriff’s department explain why officers forcefully tackled her.

“We hold the L.A. County Sheriff’s Department accountable to provide answers for the excessive use of force in the detainment of our colleague,” the Asian American Journalists Association said in a statement. “The Los Angeles chapter of AAJA demands an investigation and apology for her arrest.”

An independent monitor who oversees investigations into the sheriff’s department also launched a probe into her arrest. “What surprises me the most is that once she was identified as a reporter that they transported her, that they cited her,” L.A. County Inspector Gen. Max Huntsman told the Los Angeles Times on Sunday.

……

Huang said that is precisely what happened to her on Saturday.

Like dozens of other reporters, she had gone to a news conference outside St. Francis Medical Center, where doctors were treating two officers who had been shot in the head in an ambush earlier that night. Afterward, she was typing notes in her car in a parking garage when she heard a commotion in the street, Huang recounted in a Twitter thread on Sunday.

She ventured outside, with her press ID hanging around her neck, and found a few men waving flags and taunting deputies. As the police chased one man and then tackled him, she followed at a distance, filming the incident with her camera’s zoom function.

Suddenly, as seen in a video she shot, one deputy yelled, “Back up.” In her next video, Huang backed quickly away as a number of officers marched toward her, and then knocked the phone from her hand and took her to the ground.

“I’m a reporter,” she yelled. “I’m with KPCC!”

Her phone continued recording during her arrest, capturing her telling officers that they were hurting her and yelling yet again that she is a journalist. Another bystander’s video shows Huang being roughly pulled to the ground while a number of officers piled on top of her.

………

Early on Sunday morning, the sheriff’s office told a different story in recounting her arrest. The department said that as officers were struggling to arrest a protester, “a female adult ran towards the deputies, ignored repeated commands to stay back as they struggled with the male and interfered with the arrest.”

Huang “did not identify herself as press,” the department claimed, “and later admitted she did not have proper press credentials on her person.”

………

“Her arrest is the latest in a series of troubling interactions between our reporters and some local law enforcement officers,” Herb Scannell, chief executive of Southern California Public Radio, said in a statement to the Times. “Journalists provide an essential service, providing fair, accurate and timely journalism and without them, our democracy is at risk.”

The first step of fixing the police is to make sure that when they lie in the course of their official duties, they need to be fired, charged with a felony, and have their guns taken away forever.

Yes, This is Fascism

They have filed a conspiracy charge because she spoke at a protest against a confederate monument.

Lavrentiy Beria would be proud of them:

The felony case against Virginia’s most senior Black lawmaker, state Sen. L. Louise Lucas (D-Portsmouth), is a preposterous example of rogue local police making a mockery of justice.

Almost nothing about the charges against Ms. Lucas, the first African American and female president pro tempore of the 244-year-old state Senate, contains an iota of sense. Portsmouth police brought the charge of conspiracy to topple a Confederate monument without the assent of state prosecutors, which is highly unusual. No grand jury was convened to seek an indictment. The case involves Ms. Lucas making public statements, including to the police. Her statements may or may not have been wise; the idea that they amounted to taking part in a felonious conspiracy is farcical.

If Ms. Lucas committed any offense, it was to stick her nose into a matter over which she had no direct authority, which is more or less a state legislator’s job description.

The incident in question occurred around midday on June 10, amid protests that swept the nation following George Floyd’s killing in Minneapolis. Racial justice protesters and community leaders in Portsmouth, a majority-Black city, were intent on covering and defacing a prominent Confederate monument downtown, whose removal had been debated for several years. The monument — an obelisk ringed by statues of four military figures — had been covered by protesters the previous day, without police interference, then uncovered overnight. When two local NAACP leaders returned that morning to re-cover it, they were arrested.

………

That night, hours after Ms. Lucas departed, protests intensified, and the monument was defaced and vandalized. One of the soldier statues was pulled down, falling on a protester and gravely injuring him. At that point, police intervened. (The monument has since been dismantled and placed in storage.)

It was not until Aug. 17, more than two months later, that police got around to charging Ms. Lucas with conspiracy. That was after the local commonwealth’s attorney declined to do so — and no wonder, given the absence of evidence.

Ms. Lucas’s defenders contend that the case against her is payback for her advocacy of tough reform measures for law enforcement. There’s no evidence for that, either. Just as likely, it could be retribution by the police chief, whose resignation Ms. Lucas called for after the monument was pulled down while officers stood watching.

In fact, they waited until the Senate was coming into session to deal with comprehensive police reform, so this was more about trying to sabotage a vote on police accountability, a nakedly and corruptly political ploy:

Greene announced the warrants one day before Lucas was due to join other legislators in Richmond for a special session of the General Assembly called, in part, to address issues of racial inequity and police brutality raised after the killing of George Floyd in Minneapolis police custody in May.

Lucas was not in police custody and intended to attend the session, according to several Democrats who said they spoke with her on Monday.

These is no excuse for this.

The Portsmouth PD needs to be shut down,

Of Course They Did

Securus, a phone company specializing in looting for prisoners and their families by over charging on phone calls, has now been revealed to have, for at least the second time in the past few months, recorded privileged conversations between detainees and their lawyers.

This is so f%$#ing illegal that a cop heard the calls and contacted the state attorney general:

Jail phone telco Securus provided recordings of protected attorney-client conversations to cops and prosecutors, it is claimed, just three months after it settled a near-identical lawsuit.

The corporate giant controls all telecommunications between the outside world and prisoners in American jails that contract with it. It charges far above market rate, often more than 100 times, while doing so.

It has now been sued by three defense lawyers in Maine, who accuse the corporation of recording hundreds of conversations between them and their clients – something that is illegal in the US state. It then supplied those recordings to jail administrators and officers of the law, the attorneys allege.

Though police officers can request copies of convicts’ calls to investigate crimes, the cops aren’t supposed to get attorney-client-privileged conversations. In fact, these chats shouldn’t be recorded in the first place. Yet, it is claimed, Securus not only made and retained copies of these sensitive calls, it handed them to investigators and prosecutors.

“Securus failed to screen out attorney-client privileged calls, and then illegally intercepted these calls and distributed them to jail administrators who are often law enforcers,” the lawsuit [PDF] alleged. “In some cases the recordings have been shared with district attorneys.”

………

The recordings only came to light in May after a detective was listening to copies of recordings he had been provided, and recognized the voice of one of the lawyers, John Tebbetts, talking to his client. The detective alerted Maine’s Attorney General and the AG then informed the lawyers, providing them with copies of hundreds of calls made from jail and asked them to flag up any that were client-attorney protected so that they could be deleted. Tebbetts, plus Jeremy Pratt and Robert Ruffner, are the trio suing Securus this month.

………

Amazingly, this is not the first time Securus has been accused of this same sort of behavior. Just three months ago, in May this year, the company settled a similar class-action lawsuit this time covering jails in California.

That time, two former prisoners and a criminal defense attorney sued Securus after it recorded more than 14,000 legally protected conversations between inmates and their legal eagles. Those recordings only came to light after someone hacked the corp’s network and found some 70 million stored conversations, which were subsequently leaked to journalists.

Securus claimed the recordings were the result of a software glitch, rather than an intentional act, and stuck to that explanation as the case wound its way through the US legal system over four years.

………

Even though that lawsuit was started in 2016, Securus perhaps did not fix its apparent software bug because the recordings in this new lawsuit took place from September 2019 to May this year. As part of its settlement, Securus said it would create a new “private call” option for protected calls with attorneys and physicians and include additional warnings if the call is being recorded.

In a just world, the senior executives at Securus would spending their days in prison being forced to pay 100 times the actual cost of their phone calls.

It’s pretty clear that they simply do not give a sh%$ about the rights of defendants, or about being contemptible greed heads.

They are so evil that I expect them to speak at the Republican National Convention.

Live in Obedient Fear, Citizen

It appears that multiple entities in the US State Security Apparatus tracked millions of people’s phones without a warrant despite Supreme Court decisions requiring one:

The Secret Service paid for a product that gives the agency access to location data generated by ordinary apps installed on peoples’ smartphones, an internal Secret Service document confirms.

The sale highlights the issue of law enforcement agencies buying information, and in particular location data, that they would ordinarily need a warrant or court order to obtain. This contract relates to the sale of Locate X, a product from a company called Babel Street.

In March, tech publication Protocol reported that multiple government agencies signed millions of dollars worth of deals with Babel Street after the company launched its Locate X product. Multiple sources told the site that Locate X tracks the location of devices anonymously, using data harvested by popular apps installed on peoples’ phones.

Protocol found public records showed that U.S. Customs and Border Protection (CBP) purchased Locate X. One former Babel Street employee told the publication that the Secret Service used the technology. Now, the document obtained by Motherboard corroborates that finding.

………

“As part of my investigation into the sale of Americans’ private data, my office has pressed Babel Street for answers about where their data comes from, who they sell it to, and whether they respect mobile device opt-outs. Not only has Babel Street refused to answer questions over email, they won’t even put an employee on the phone,” Senator Ron Wyden told Motherboard in a statement.

………

Government agencies are increasingly at the end of that location data chain. In February The Wall Street Journal reported that Immigration and Customs Enforcement (ICE) and other agencies bought an app-based location data product from a different firm called Venntel. Senator Wyden’s office then found the Internal Revenue Service (IRS) was also a Venntel customer.

Law enforcement agencies typically require a warrant or court order to compel a company to provide location data for an investigation. Many agencies have filed so-called reverse location warrants to ask Google to hand over information on what Android devices were in a particular area at a given time, for example. But an agency does not need to seek a warrant when it simply buys the data instead.

………

Senator Wyden is planning legislation that would block such purchases.

We should also forbid our intelligence agencies from having allies collect data that they are forbidden to collect, and the reverse for them.

The whole “Five Eyes” thing appears to be a way to allow intelligence agencies to spy on their own citizens by swapping who is looking at any given time.

Live in Obedient Fear, Citizen

Kevin Alfaro was at a Black Lives Matter protest in Nutley, New Jersey, when his ordeal began.

The anti-racism demonstration, prompted by the police killing of George Floyd, was met by a group of mostly white counter-protesters, some chanting “all lives matter”, and Alfaro felt the police were treating the rightwing crowd favorably.

In a climate where anti-racism protesters have been met with violence from police, Alfaro took a photo of one officer, and posted it to Twitter. “If anyone knows who this bitch is, throw his info under this tweet,” Alfaro wrote.

………

Alfaro had been charged with cyber-harassment, a fourth-degree felony, and a charge that carries a prison sentence of up to 18 months.

It fit a pattern. Since protests against racism and police brutality began protesters across the country have been hit with punitive, felony charges for acts of civil disobedience, in what civil rights experts say is a “suppression tactic” aimed at quashing the anti-racism movement.

In New York City, a man was charged after allegedly shouting through a loudspeaker in a police officer’s ear. In Miami, an activist was hit with a strong-arm robbery charge after being accused of stealing pro-Donald Trump flags. Perhaps the most egregious case is in Utah, where a group faces up to life in prison after allegedly throwing paint on a building.

………

In Salt Lake City, Utah, police say Madalena McNeil bought red paint at a Home Depot before she and three other activists threw it on a district attorney’s office, and broke windows, during a 9 July protest.

The group was charged with felony criminal mischief and riot charges, and prosecutors added a “charging enhancement” claiming the protesters operated as a gang. That means the group could face life in prison.

The prosecutors and the cops are using their positions and abusing the law to prevent scrutiny of their actions.

It is whistle-blower retaliation, and in many places it is a crime, though no one will ever be charged, since those making the decision are those who would be targeted.