First it was not uncommon for judges in individual cases to make as a condition of pre-trial release or probation that sex offenders use of the Internet be restricted. Then came statutory bans that not infrequently were written very broadly. Now a  unanimous three-judge Seventh Circuit panel declares unconstitutional a recent Indiana statute prohibiting most registered sex offenders from using social networking web sites, instant messaging services, and chat programs.

You can read the opinion here.

A well written opinion has an introduction that captures what the case is about. It is all too often the lead in stories that are written about the decision. Here is the opening of Judge Kozinski’s opinion, reversing a lower court ruling and issuing a preliminary injunction in an Alien Tort Statute suit against the Sea Shepherd’s attempts to interfere with Japanese whaling vessels on the high seas:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

 

The full opinion can be found here.

The Chicago Tribune reports that, “An Alsip man was sentenced today to probation and ordered to write an essay about the lynching of blacks in America after he pleaded guilty to an attack two years ago in which he and two friends put a noose around the neck of an African-American teenager and threatened to kill him.

Matthew Herrmann, who turns 20 on Thursday, is white and originally was charged as an adult with felony counts of committing a hate crime, unlawful restraint and battery

But in an unusual deal with Cook County prosecutors, Herrmann pleaded guilty last year to a misdemeanor count of battery and agreed to participate in a “peacemaking circle” with the victim, family, clergy and school counselors. The approach – typically used only in juvenile cases – is designed to provide healing for the victim as well as resolve the underlying issues that caused the act, according to prosecutors.

Criminal Court Judge James Linn agreed today to go along with the deal and sentenced Herrmann to 2 years of probation for the misdemeanor conviction. Herrmann must also participate in a follow-up peacemaking circle with the victim and write the essay on lynching.

See more here.

The Wisconsin Court of Appeals has issued an opinion in which it “caution(ed) circuit courts that a mandatory condition of release based solely on the nature of a charged crime without considering a defendant’s individual circumstances constitutes an erroneous exercise of discretion in setting bail conditions.” The court issued this caution in a case that challenged the practice in one Wisconsin county of imposing substance abuse treatment as a blanket condition of pretrial release in all cases in which a defendant was charged with a second or subsequent offense of operating a motor vehicle while intoxicated. The full case can be found here.

The key to this case is a finding by the court of Appeals that the trial judge’s decision was made on an evaluation of the defendant and was individualized.

Other jurisdictions also have found that conditions requiring drug testing for release imposed on an individual basis do not run afoul of the Fourth Amendment. See Oliver, 682 A.2d at 189-190; York, 892 P.2d at 814-15.

In York, the California Supreme Court upheld a decision that random drug testing was a permissible condition of release upon a court’s consideration of the specific facts and circumstances of each defendant’s case. York, 892 P.2d at 806, 816.

The District of Columbia court of appeals likewise found that a condition of release requiring drug testing for an admitted drug abuser was not an unreasonable search under the Fourth Amendment.  Oliver, 682 A.2d at 192-193.

AJA gives members new tools to face the brave new world of technology

AJA Midyear – Orlando Florida, May 2 – 4, 2013

“Will Facebook be friends with Courts:  Social Media, Digital Evidence and Emerging Trends.”

The midyear meeting in Orlando at the Wyndham Lake Buena Vista Conference Center will include a day long opportunity for judges to earn up to 7 continuing education units on Friday, May 3, 2013.  This conference is open to all judges and a special conference registration rate is available for Florida judges.

The following topics and issues will be addressed over the course of the day:

1.        What good judges need to know about the many ways the communications revolution, social media and technology challenge how courts and judges operate.

2.       What good judges need to know about social media to avoid pitfalls including running afoul of canons of judicial conduct

3.       Challenges to discovery of Electronically Stored Information (ESI), where it is and how to get it

4.       Admissibility issues related to Electronically stored Information

The faculty for this program includes:

Dana Babbin, esq  who served as a  prosecutor in Massachusetts  between October 1999 and March 2011.   Between 2003 and 2007, Dana served the Attorney General’s Office as its Internet Crimes Against Children Prosecutor, handling the prosecution of child pornography cases, did vast amounts of outreach and training, both locally and nationally, for state and federal organizations.  Between August 2007 and March 2011, Dana spearheaded the establishment of a first-ever cybercrime division at the Middlesex County D.A.’s Office and  supervised the D.A.’s Cyber Enforcement Unit, where experts analyzed the seized digital evidence.  She continues with her outreach efforts, spending considerable time working with schools that were increasingly faced with problems stemming from the intersection of crime and technology (such as cyber-bullying and “sexting”), ultimately building materials used to “divert” young persons from the criminal justice system who had been caught “sexting” at school.  Dana travels statewide and nationwide as a guest speaker for government, legal, and pedagogical organizations, focusing primarily on the education of police, school personnel, and professionals who are concerned with the many facets of digital evidence and cyber safety. She now operates Cadence Consulting (callcadence.com) which provides outreach and training, primarily to police academies, digital evidence examiners, digital evidence labs, and school personnel.

Daniel K. Gelb, is a Partner at Gelb & Gelb LLP, in Boston . His practice focuses on business, securities, accountant’s liability, corporate raiding and trade secrets and criminal  law.  He is a frequent presenter and author in the area of electronic discovery.  He is a member of the Sedona Conference Working Group on Electronic  Document Retention and Production, the National Association of Criminal Defense Lawyers electronic  discovery task force, and of the advisory board of the Bureau of National Affairs White Collar Crime Report

Hon. Elliott Zide (ret), is now  President-elect of AJA and a widely known and respected judicial education development strategist with over 25 years of experience planning conferences, developing curricula designed to improve judicial performance  and designing and presenting programs and initiatives to develop judicial education faculty who better meet their learning goals.  Judge Zide worked primarily with his colleagues in Massachusetts and the American Judges Association but has also worked abroad in the UK, India, Macedonia, and Oman.

Mike Duffey is a special agent with the Florida Department of Law Enforcement currently assigned to the Computer Crimes Center.  He is responsible for statewide computer crime investigations including Internet crimes against children.  Mike also conducts awareness and prevention presentations to various schools and civic organizations.  He has also presented to law enforcement officers around the world on how to conduct child exploitation investigations.  As a member of the Tallahassee Police Department and Florida Department of Insurance, Mr. Duffey investigated street crimes, narcotics, burglary, and insurance fraud cases.  Mr. Duffey has worked with multiple federal, state, and local agency task forces in conducting Internet crimes against children investigations.  His current cases include network intrusion cases, Phishing scams, and denial of service attacks.  Mike has a Bachelor’s of Science Degree from Florida State University School of Criminology and he has completed his Microsoft Certified System Administrator (MCSA) course work along with multiple child exploitation classes and computer forensics.

AND…other experts knowledgeable about social media, technology and digital evidence from Florida.

Program participation includes:  the program, excellent written materials and materials on disk (for easier transport).  The Faculty intend to present some hypothetical examples over the course of the day which the participants will use to focus on the issues discussed.

In addition we welcome:

Any judge who may wish to serve as additional panel members, judges who wish to submit a hypothetical and  judges who wish to submit written materials (flow charts, schematics, short articles)

If you have any thoughts about the program or want to serve as faculty please correspond directly with Elliott Zide, judgezide AT yahoo DOT com,  being certain to insert the relevant words in the subject space on your e-mail server.

To register for the conference or make reservations at the Wyndham, go to http://aja.ncsc.dni.us/conferences/.

Few organizations are as consistently observant of trends and developments that can improve or be a setback to a fair system of justice then the Brennan Center. So it is not surprising that the Center makes this observation,

As the nation prepares itself for the across the board budget cuts, Drug Policy Alliance Executive Director Ethan Nadelmann and Brennan Center Justice Program Director Inimai Chettiar point out today in The Hill that the sequester gives the Department of Justice an opportunity to rethink outdated criminal justice policies that simply don’t work and waste money. “The Justice Department has some discretion in the sequester, particularly over how specific departments within agencies execute the cuts,” write Chettiar and Nadelmann. By prioritizing evidence-based programs and policies that protect public safety, the Justice Department can make responsible cuts that “increase both the fiscal health and effectiveness of the eternally cash-strapped agency.

 

For more details on how the Justice Department can implement smart cuts, read Chettiar’s and Nadelmann’s piece in The Hill, as well as the Brennan Center’s letter to the Justice Department and White House’s Office of Management and Budget. Read more from Chettiar on realigning federal funding incentives and from Nadelmann on drug policy reform.