Articles Posted in Commentary and Opinion

More than a dozen Washington Post journalists spent two years developing Top Secret America, a multimedia presentation put together by compiling hundreds of thousands of public records of government organizations and private sector companies. From these records, the Washington Post identified a web of these organizations, both government and private, that are engaged in top secret work for the government. According to Dana Priest and Matthew M. Arkin, two Washington Post reporters who have written about the Project, these findings amount to “…a Top Secret America hidden from public view and lacking in thorough oversight.”

Here are some additional links for those interested in the Washington Post Project:

Introductory Video: http://projects.washingtonpost.com/top-secret-america/

Many thanks to Jonathan Stock, recently retired as Supervising Law Librarian at the Connecticut Judicial Branch Law Library at Stamford, for writing this fine, thought provoking article. It has been published in the July 2010 issue of AALL Spectrum and we have linked to the Spectrum article with Jonathan’s permission.

Jonathan’s article is truly an allegory which can be considered from many perspectives, not the least of which are Jonathan’s impressions of recent efforts to help save many of the court law libraries in Connecticut from possible oblivion.

Before linking to the actual article, I would like to share a bit of our e-mail exchange after his article first appeared in AALL Spectrum

Supreme Court Case Summaries: Professor Rory Little’s Perspective
A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

These summaries are written by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. They represent his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to members, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” — that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S.. Supreme Court Summaries – Criminal Cases June 24, 2010
Mail/Wire Fraud and “Honest Services” – Three cases:

Skilling v. United States, http://www.supremecourt.gov/opinions/09pdf/08-1394.pdf

Black v. United States, http://www.supremecourt.gov/opinions/09pdf/08-876.pdf

Weyhrauch v. United Sates, http://www.supremecourt.gov/opinions/09pdf/08-876.pdf

On June 24, the Court issued its long-awaited opinions in the trio of “honest services” mail and wire fraud cases. The Court (6-3) upheld the “honest services” statute, but limited it to schemes of “bribery and kickbacks.” Interestingly, in the lead case of former Enron CEO Jeff Skilling, the Court’s major effort was spent not on mail fraud, but on the pretrial-publicity juror bias claims that Skilling presented, and the Skilling opinion will stand more as a major decision in that constitutional area than on the statutory definition (which is changeable by Congress) of mail fraud. Each holding (due process and mail fraud) was a 6-3 vote, but different Justices were the dissenters on each. And, perhaps significantly or perhaps not, this is the first decision in which the two women on the Court disagreed in written opinions, Justice Ginsburg writing the majority and Justice Sotomayor dissenting on the due process-fair trial ruling.

The various Skilling opinions consume 114 pages. The Court also eclipses what probably was not a record of three days ago (the six-page syllabus in Humanitarian Law Prroject) with a nine-page syllabus here. Yes, there are a lot of pages here, but nine pages for an allegedly accessible “summary” of the opinion is, for the Court, pretty silly.

In Black, the Court applied its Skilling mail fraud ruling to hold that Conrad Black’s jury instructions were erroneous, and remanded for a harmless-error analysis (as it did in Skilling). The Court also reversed the Seventh Circuit’s ruling that Black had forfeited his jury instruction challenge by opposing the government’s more-precise special verdict form, and provides an important discourse on courts of appeal imposing sanctions that the Federal Rules of Criminal Procedure don’t specify, without notice.

Finally, in one sentence the Court simply vacated the Ninth Circuit’s ruling in Weyhrauch and remanded for further proceedings in light of Skilling.

Summaries of the various Justices’ opinions follow.
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Manhattan District Attorney Cyrus R. Vance, Jr., has announced the District Attorney’s Office’s (DANY) new policy on the prosecution of businesses and organizations. Below are links to the DANY Press Release announcing the new policy and the May 27, 2010 DANY memorandum which contains the actual policy
http://www.manhattanda.org/whatsnew/press/2010-06-01d.shtml Press Release June 1, 2010
http://www.manhattanda.org/whatsnew/press/ProsecutionofOrganizations.pdf Memorandum “Considerations in Charging Organizations” May 27, 2010

Apparently prosecutors in Queens County New York think so. This month Queens prosecutors have charged two women with stealing more than $30,000 from three elderly men they had befriended separately. The women were charged with grand larceny as a hate crime.

This strategy of treating some hate crimes as larcenous behavior is considered a novel approach. Indeed Kathleen Hogan, president of the New York State District Attorneys Association and Scott Burns, executive director of the National District Attorneys’ Association have both said they had not heard of another jurisdiction using this Queens County approach to hate crimes.

According to a New York Times article by Anne Barnard, A Novel Twist for Prosecution of Hate Crimes, “the legal thinking behind the novel method is that New York’s hate crime statute does not require prosecutors to prove defendants ‘hate’ the group the victim belongs to, that they commit the crime because of some belief, correct or not, they hold about the group.”

Holder (Attorney General) v. Humanitarian Law Project et. al. 08-1498

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

Retired New Jersey Appellate Division Judge Geoffrey Gaulkin released his report in State v. Henderson today June 21, 2010. . The New Jersey Supreme Court appointed judge Gaulkin in May 2009 to serve as special master and to hold hearings and issue a report “to test the validity of our state law standards on the admissibility of eyewitness identification.” According to news comments, the report suggests that eyewitness testimony should be treated more like physical evidence and be subjected to pretrial hearings to assess how reliable it is.

According to a June 21, 2010 New York Times article ” Use of Eyewitnesses in New Jersey Courts Needs Change, Ex-Judge Says” by Richard PÉREZ-PEÑA, the report recommends that”Courts should do more to gauge the accuracy of witnesses to crimes, and to let juries know how flawed their testimony can be, according to a former appellate judge assigned by the New Jersey Supreme Court to review the matter….In particular, [judge Geoffrey Gaulkin] wrote, judges should assess factors that might limit a witness’s reliability in picking someone out of a lineup, either in person or in a photo array…”

Click on the link below the see the complete report:

NOTE: This posting includes Professor Little’s perspective on City of Ontario v. Quon, the cfase whch includes interesting discussion about whether public employees have a reasonable expectation of privacy regarding text messages went on government owned equipment during working hours.

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

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