feldmanwallach

Feldman & Wallach Blog On Current Legal Matters

Prosecution Folds During Ian Wallach’s Cross-Examination Of Complaining Witness – Van Nuys Courthouse — Oct. 10, 2013

In a case where our client was charged with Domestic Violence (PC Section 273.5) and Violating a Court Order (PC Section 166), the Complaining Witness alleged that she was beaten by our client.  During Cross-Examination, Mr. Wallach elicited numerous inconsistencies between her testimony and her prior statements, a strong motive for being untruthful, and her proclivity for violence.  The Judge stopped the cross-examination after 90 minutes and urged the Prosecution to abandon the charges, which ultimately occurred.  The protective order extinguished, the client returned to his home without any punishment, and the Court didn’t even incarcerate the client for a violation of his probation.  This was a first for Ian Wallach, and the client was quite pleased.

“Get Rid Of Your Lawyer” — What Can You Do If An Officer Or Agent Tells Your Client To Fire You?

By Ian Wallach, partner, Feldman & Wallach, http://www.feldmanwallach.com

In Los Angeles there have been recurring reports of detectives calling represented parties – outside of the presence of, and without the knowledge of or notice to, their counsel, in hopes of establishing a cooperation agreement, and telling those parties to fire the lawyer.  This is happening in matters that are not yet filed and there is no evidence suggesting that any specific AUSAs or other prosecutors are aware of the conduct. 

This article will examine the ramifications of such conduct and make suggestions as to how a lawyer can use this misconduct to his client’s benefit.

 

This is not a new problem.  This is not a regional problem.  In Commonwealth v. Manning, 373 Mass. 438 (1977) a federal agent contacted a represented defendant in hopes of having the defendant become an informant.  The agent wanted the defendant to become an informant, and made disparaging remarks about the defendant’s attorney.  The Court addressed the misconduct and, specifically, if there was a showing of prejudice sufficient to warrant dismissal.  The Court stated that it was examining a “deliberate and intentional attack by government agents on the relationship between Manning and his counsel in a calculated attempt to coerce the defendant into abandoning his defense.”  Id. at 443. The Massachusetts Court dismissed the case, stating that “we wish to leave no doubt that such conduct will not be tolerated in our criminal justice system.”  Id. at 445.

 

But a few years later, the U.S. Supreme Court was less offended (or at least not sufficiently offended to uphold a dismissal).  In U.S. v. Morrison 449 U.S. 361 (1981), the Supreme Court examined a situation where a defendant had hired a lawyer, and then two DEA agents met with the defendant afterwards and stated that the lawyer was substandard and she should fire him.  Id. at 363.  The defendant moved to dismiss the case based on the misconduct, but there was no showing of prejudice (and, more importantly, there was no evidence that the prosecutor was complicit or even aware that it transpired).  The Court provided a historical analysis of governmental misconduct cases and noted that the remedy of exclusion is available for evidence gained unlawfully.  See id. at 364.  The Court stated that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.”  Id.  The Court went on to state that in criminal cases, the remedy for governmental misconduct is to exclude the ill-gotten evidence.  The Court stated that “we do not condone the egregious behavior of the Government agents.  Nor do we suggest that in cases such as this, a Sixth Amendment violation may not be remedied in other proceedings.  We simply conclude that the solution provided by the Court of Appeals is inappropriate where the violation, which we assume has occurred, has had no adverse impact upon the criminal proceedings.  Id. at 367.

 

But a few years after that, a California appellate court followed Morrison and still mandated dismissal.  In Boulas v. Superior Court, 188 Cal. App. 3d 422 (2d. Dist., 1986), the facts were plainly egregious.  The defendant in Boulas hired an investigator – without consulting his attorney – to consult with the authorities about a plea bargain.  A deputy met with the investigator and the defendant and proposed a cooperation agreement.  The deputy then discussed this meeting with the Deputy District Attorney.  The DDA decided that a cooperation agreement could only go forward if the defendant’s present attorney was fired.  This was relayed to the defendant, who fired his attorney.  The DDA then instructed the investigator as to which attorney to hire.  The Court’s use of the sanction of dismissal was apparently due to the Deputy District Attorney’s complicity and proactive intrusion into the relationship between the attorney and the client.

 

The Court set out to determine “the proper remedy for intentional interference by law enforcement personnel with the attorney-client relationship in the unique instance of such interference leading to the irremediable breakdown of that relationship.”  Boulas, 188 Cal. App. 3d at 425.  The Court began its discussion by stating “[t]here is no question that governmental authorities acted improperly when they contacted Boulas outside of the presence of his attorney to advise him to fire Attorney S.”  Id. at 429.  The Boulas court then cited a long line of cases holding that that “[w]hen conduct on the part of the authorities is so outrageous as to interfere with an accused’s right of due process of law, proceedings against the accused are thereby rendered improper” and that dismissal was a proper remedy in the face of shocking misconduct by overzealous government agents.  Id.  The prosecution argued that absent proof of harm, dismissal was an inappropriate sanction.  But the Court eloquently stated the nature of the attorney-client relation in a criminal action as follows:

 

The prosecution’s argument fundamentally misunderstands the scope and breadth of the state’s invasion of Boulas’s right to be represented by counsel of choice.  Criminal defense lawyers are not fungible.  The attorney-client relationship “. . . involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney.  This is particularly essential, of course, when the attorney is defending the client’s life or liberty.” (citing Smith v. Superior Court (1968) 68 Cal.2d 547, 561).  In order to provide effective assistance of counsel, it is essential that a defendant have full confidence that his attorney is representing the defendant’s interests with all due competence. 

 

Boulas, 188 Cal. App. 3d at 430.  The Court reiterated the strict prohibitions against the state from interference with this relationship, stating “[t]he state is obliged ‘to refrain from unreasonable interference with the individual’s desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.’ (citing People v. Crovedi, (1966) 65 Cal.2d 199, 206).  The state must respect, and not interfere with, a defendant’s ‘right to decide for himself who can best conduct the case . . . .’ (citing Maxwell v. Superior Court, 30 Cal.3d 606. 615).”  Id. at 432.

 

The Boulas Court distinguished itself from the Supreme Court’s decision in Morrison, by stating:

It is important to note that, in United States v. Morrison, 449 U.S. 361, the Supreme Court did not rule out the possibility of ordering the dismissal of a case upon a proper showing of prejudice.  The court, in Morrison, found that the record tendered by the defendant failed to “reveal a pattern of recurring violations by investigative officers that might warrant the imposition of a more extreme remedy in order to deter further lawlessness.” (Id. at pp. 365-366, fn. 2, italics added.)

There exist factual distinctions between Morrison and the present case.  The defendant in Morrison was twice contacted by police officers.  During these visits, the officers berated her attorney’s competence and sought her cooperation in another case.  She declined to cooperate, did not supply any information pertinent to her case, and kept her attorney.  (Id. at pp. 362-363).

There is no suggestion in Morrison that the prosecutor’s office participated in the decision of the police officers to speak with the defendant outside of the presence of her attorney.  In contrast, the record before this court contains substantial evidence of such participation on the part of a deputy district attorney.

 

Boulas, 188 Cal. App. 3d at 431-432.  The Court dismissed the case (though one judge dissented in Boulas, citing Morrison, stating that the conduct was indefensible but there wasn’t a showing of prejudice that warranted dismissal).  The Court also gave the following note of hope at the end of the opinion:

 

It is the hope of this court that this opinion will serve to discourage government officials from interfering with the constitutional right of an accused to be assisted by counsel of his own choosing. “In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously.  Our Government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example.” (citing Olmstead v. United States (1928) 277 U.S. 438, 485 (Brandeis, J., dis.)).

 Id. at 434.

 

Boulas is still the law in California. (See People v. Uribe, 199 Cal. App. 4th 836, 868 (Cal. App. 6th Dist. 2011), “Boulas has no application.  There, ‘the grave sanction of dismissal’ was found to be warranted ‘to discourage government officials from interfering with the constitutional right of an accused to be assisted by counsel of his own choosing.’ Here the misconduct did not involve in any way an interference with defendant’s relationship with counsel”).  But the Boulas’ Court’s warning may not have had much effect, as the practice continues.

 

So, the law in California is that if (a) government agents intentionally seek to have a represented party terminate her lawyer; and (b) prejudice arises; then a dismissal can be issued.  And will more likely be issued if (c) the prosecutor is aware of, or complicit in, the misconduct.

 

So how can you establish complicity?  And how can you establish prejudice?  Consider writing a letter to the District Attorney identifying the officer or agent and the misconduct.  This could help to establish notice and complicity, and be a starting point for a resolution.  And as far as prejudice, consider having the client fire you, and letting a friend take over.  Or at least have the client write down what it felt like to have government agents come speak to him knowing he was represented, and after you told them that it would not happen, and that it would be unlawful for them to do so.  If your matter is not yet filed, you may wish to talk about this with the prosecutor’s office, rather than write about it, in hopes of using the prosecutor’s desire to protect the officer to your advantage (ideally, in the form of a non-filing or informal disposition).  If the case is filed, then taking the steps above can give a tiny chance of a dismissal, and a stronger position to negotiate for lenient resolution.

 

What is Copyright Infringement?

by Jason Feldman, Partner, Feldman & Wallach, www.feldmwanwallach.com

Where a party uses the work of another without its express written permission, authorization or consent that party may be in violation the United States Copyright Act.

The owner of a copyright has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

Anyone who violates any of the exclusive rights of the copyright owner by copying, modifying and/or reproducing a party’s work is considered an “infringer” of the copyright as well as an “infringer” of the rights of the author.

In order to prevail on a claim for copyright infringement, a Plaintiff must initially show that the application has been filed and either factual evidence of copying or that the defendant had access to the copyrighted work and that the offending and copyrighted works are so similar, that the Court may infer that there was factual copying. A Plaintiff need only then prove that the works are “substantially similar.”

Damages for Infringement.

The owner of the exclusive rights granted under the Act may institute an action for damages for infringement. The owner may seek “Statutory Damages” for each and every infringement committed by the company.

“Statutory Damages” allow for the recovery of damages per infringement in a sum of not less than $750 or more than $30,000.  In an instance, however, where the copyright owner can sustain the burden of proving that the infringement was committed willfully, the court may increase the award of statutory damages to a sum of $150,000.

This can add up.  For example, concerning infringement of a software program, infringement occurs each time the software is installed on a defendant’s computer without the authorization of the copyright owner. In addition, an infringement occurs each time the software is “booted up.” In other words, for purposes of the statute, an infringement occurs every time the software is loaded from some storage medium, such as a diskette or a computer’s hard drive, into the computer’s random access memory (RAM). Thus, an infringement occurs each time the computer bearing the unauthorized software is activated.

Finally, a Plaintiff may also recover costs and reasonable Attorney’s Fees. See Title 17 USC Section 505.

CAN REVEALING UNIFORMS FOR FEMALE EMPLOYEES AMOUNT TO GENDER DISCRIMINATION?

by Jason Feldman, Partner, Feldman & Wallach, www.feldmwanwallach.com

Cal. Code § 12949 permits employers to establish and enforce reasonable appearance standards as follows: “Nothing in this part relating to gender-based discrimination affects the ability of an employer to require an employee to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an employee to appear or dress consistently with the employee’s gender identity.”

Regulations from the Fair Employment and Housing Commission similarly permit an employer to impose grooming standards, so long as they do not discriminate on a prohibited basis nor “significantly burden the individual in his or her employment.”

While Cal. Code Sec. 12949 does provide protection to transsexuals and transgender individuals in relation to dress and grooming codes, California courts have pointed out that with this section the Legislature has recognized California employers’ right to impose dress codes in the workplace as long as they are consistent with their employees’ gender identity.

Because the objectives and public policy underlying both FEHA and Title VII are the same, California courts consider federal decisions in considering issues of workplace discrimination.  In relation to what could be considered reasonable workplace appearance, grooming and dress standards, numerous courts across the country have reasoned that employers may establish different grooming and dress standards for male and female employees, even if those standards prohibit men (but not women) from wearing earrings, require men (but not women) to wear neckties, forbid certain hairstyles such as cornrows, or require both women and men to wear overalls to work.

Courts have generally tolerated dress codes that reify “normative stereotypes.”  They do this by declaring that grooming standards that appropriately differentiate between the sexes are not facially discriminatory.

Jespersen v. Harrah’s Operating Company, Inc.,[1] interpreting Title VII, provides critical guidance on this issue. In Jespersen, plaintiff challenged her employer’s personal grooming policy, claiming that the requirement that she wear makeup constituted unlawful sex discrimination, both because it resulted in disparate treatment based on gender and because it had a disparate impact on her. Holding that plaintiff had failed to establish a record that would support a finding that the grooming policy was motivated by sex stereotyping, the Ninth Circuit affirmed the summary judgment entered by the trial court. While the court did not preclude the possibility that a grooming code, if not reasonably applied, could unlawfully discriminate, it would not permit the subjective objection of a single employee, without evidence of improper motivation by the employer, to be the basis for a claim.[2]

With respect to the claim for unequal burdens, the court recognized that demonstrating the existence of a sex-based difference in employer grooming policies, without more, does not establish a prima facie case of discrimination. A difference in grooming standards between men and women in a policy that otherwise applies equally to all employees in a given job category does not violate Title VII unless the policy places a greater burden on one gender.  Because, on summary judgment, plaintiff had submitted no evidence demonstrating that there was a relative difference in cost or time for men and women to comply with the policy, she could not prevail.  Similarly, with respect to sex stereotyping, there was no evidence that the policy was based on a stereotypical view of women, or that the standards would negatively impact a woman’s ability to perform the job. Rather, more must be shown than the objection of a single employee: “We respect Jespersen’s resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give raise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self-image, can create a triable issue of sex discrimination.”[3]

Courts generally do not consider makeup, hairstyle, or sex-appropriate attire requirements to represent an undue burden without specific evidence from the plaintiff as to the time, cost, or other unequal burden actually imposed.  However, courts have found that female employees can’t be made to wear sexually revealing clothing that may expose them to sexual harassment.  Questions an employer should ask are, does this uniform promote a negative sexual stereotype?  Are the female employees equally affected by the uniform requirement?  Is the uniform consistent with the job for which they are employed?


[1] Jespersen v. Harrah’s Operating Company, Inc. (2006) 444 F.3d 1104.

[2] Jespersen, supra, at p. 1113.

[3] Jespersen, supra, at p. 1109-1111.

When are individual shareholders liable for the acts of a corporation? The Alter Ego Doctrine

by Jason Feldman, Partner, Feldman & Wallach, www.feldmwanwallach.com

The alter ego doctrine is used to establish the direct liability of a shareholder or owner when the shareholder or owner improperly uses the corporate entity to commit acts which harm the corporation itself, or third persons involved with the corporation.

Despite the common thinking that shareholders are immune from the debts and obligations of a corporation, sometimes, in extraordinary circumstances, those shareholders can be made to answer for the corporate debts. It is a long held rule of law in California that the courts must recognize the limited liability afforded by the corporate entity. However, in certain circumstances where equity dictates, the courts may, upon a substantial showing of facts, find an exception to the rule. That exception is called the alter-ego doctrine.

The first case which deviated from the ordinary rule of separate corporate existence was

decided in 1921 by the California Supreme Court in Minifie v. Rowley.[1] There, the Court set forth the elements required to be present in order for the shareholders to be made liable for corporate obligations. The Minifie holding formed the basis for the alter-ego doctrine which has been evolving into a substantial body of law ever since.

BASICS OF THE EXCEPTION TO THE RULE

Under the alter-ego doctrine, when the corporate form is used to perpetuate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, the courts may disregard the corporate entity and hold its individual shareholders liable for the actions of the corporation. “The separate personality of the corporation is a statutory privilege, and it must be used for a legitimate business purpose and must not be perverted. When it is abused it will be disregarded and the corporation looked at as a collection or association of individuals.”[2]

The alter-ego doctrine is intended to prevent individuals or other corporations from misusing the corporate laws by the device of a sham corporate entity formed for the purpose of committing fraud or other misdeeds. In California, there is no litmus test for applying the alter-ego doctrine remedy; however, the courts have consistently stated that there are two general requirements for application of the alter ego doctrine:

  1. There must be such a unity of interest and ownership between the corporation and its equitable owner(s) that the separate personalities of the corporation and its shareholders do not truly exist.
  2. There must be an inequitable result if the acts in question are treated as those of the corporation alone, or stated differently, the failure to disregard the corporate entity would sanction a fraud or promote injustice.

The test is easy to state, but courts have found it difficult to apply. While the test is consistently stated, most cases have avoided formulas and tests and relied instead on the discretion of the trial court.

SHOWING UNITY OF INTEREST

Those factors tending to show a “unity of interest” are as follows:

1. Commingling of funds and assets.

2. Failure to segregate funds.

3. Diversion of funds or assets.

4. Treatment by shareholder of corporate assets as own.

5. Failure to maintain minutes.

6. Identical equitable ownership in two entities.

7. Officers and Directors of one entity same as controlled corporation.

8. Use of the same office or business location.

9. Employment of same employees.

10. Total absence of corporate assets.

11. Under-capitalization.

12. Use of Corporation as mere shell.

13. Instrumentality or conduit for single venture of another corporation.

14. Concealment or misrepresentation of the responsible ownership, management and financial interests.

15. Concealment or misrepresentation of personal business activities.

16. Disregard of legal formalities.

17. Failure to maintain arms length relationships among related equities.

18. The use of the corporate identity to procure labor, services or merchandise for another entity.

19. The Diversion of assets from a corporation by or to a stockholder or other person or entity to the detriment of creditors.

20. The manipulation of corporate assets and liabilities in entities so as to concentrate the assets in one and the liabilities in another.

21. The contracting with another with the intent to avoid performance by use of the corporation entity as a shield against personal liability.

22. The use of the corporation as subterfuge for illegal transactions.

23. The formation and use of a corporation to transfer to it the existing liability.

In considering the factors on this list, appellate courts have held no one factor is conclusive. It is within the trial court’s discretion to consider the presence or absence of any of these factors or other relevant circumstances.

DEMONSTRABLE INEQUITABLE RESULT

A Plaintiff may not prevail on the theory of alter-ego unless he/she/it proves to the Court that an inequitable result will occur if the Court recognizes the corporate form over the substance and nature of the injury. The doctrine does not depend upon the presence of actual fraud, but is designed to prevent what would be fraud or an injustice. Accordingly, bad faith, in one form or another, is an underlying consideration. Without a showing of wrongdoing, violation of statute or evidence of injustice, the alter-ego exception cannot be employed by the Court as a remedy.

The essence of the alter-ego doctrine is that justice be done. Although courts have considered many factors in justifying its application, their basic motivation is to assure a just and equitable result.

CONCLUSION

1. The Alter-ego doctrine is an exception to the rule.

2. The Alter-ego doctrine is an equitable remedy to prevent injustice.

3. The Court is never required to employ the Alter-ego doctrine.

4. The doctrine may only be employed on a case by case basis depending on the facts.

5. Alter-ego liability is a question of fact, not law.

6. Because the exception arises as an equitable remedy and not a cause of action, there is no right to a jury trial.


[1] Minifie v. Rowley, (1921) 87 Cal. 481, 202 P. 673.

[2] In re: International Cab Company, No. Dist Court, Bank 98-30535 WDM.

Can a third party be liable for causing a contract to be breached by others? The answer is yes under certain circumstances.

by Jason Feldman, Partner, Feldman & Wallach, www.feldmwanwallach.com

The two relevant cause of action are intentional interference with economic advantage; and interference with existing and prospective contractual relations.

1.  The elements for a cause of action for intentional interference with economic advantage are: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.[1]

The wrinkle with this cause of action is that the intentional acts aimed to disrupt a relationship (#3) requires an ‘independent wrongful act’ such as fraud or another tortious means. It is not just beating someone out for a job or contract, but doing so by doing something unfair [libel, slander, etc.] to disrupt relationships with third parties.

2.  The elements for interference with existing and prospective contractual relations are: (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.”[2]

Wrongfulness independent of the inducement to breach the contract is not an element of the tort of intentional interference with existing contractual relations. Because interference with an existing contract receives greater solicitude than does interference with prospective economic advantage.  It is not necessary that the defendant’s conduct be wrongful apart from the interference with the contract itself.

It is necessary to distinguish the tort of interference with an existing contract because the exchange of promises which cements an economic relationship as a contract is worthy of protection from a stranger to the contract. Intentionally inducing or causing a breach of an existing contract is therefore a wrong in and of itself. Because this formal economic relationship does not exist and damages are speculative when remedies are sought for interference in what is only prospective economic advantage, some wrongfulness apart from the impact of the defendant’s conduct on that prospect should be required.   Additional aspect of wrongfulness is not an element of the tort of intentional interference with an existing contract.

Moreover, the tort of intentional interference with performance of a contract does not require that the actor’s primary purpose be disruption of the contract. As explained in comment j to section 766  of the Restatement Second of Torts: “The rule stated in this Section is applicable if the actor acts for the primary purpose of interfering with the performance of the contract, and also if he desires to interfere, even though he acts for some other purpose in addition. The rule is broader, however, in its application than to cases in which the defendant has acted with this purpose or desire. It applies also to intentional interference, in which the actor does not act for the purpose of interfering with the contract or desire it but knows that the interference is certain or substantially certain to occur as a result of his action. The rule applies, in other words, to an interference that is incidental to the actor’s independent purpose and desire but known to him to be a necessary consequence of his action.

“One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.”[3]

“The fact that this interference with the other’s contract was not desired and was purely incidental in character is, however, a factor to be considered in determining whether the interference is improper. If the actor is not acting criminally nor with fraud or violence or other means wrongful in themselves but is endeavoring to advance some interest of his own, the fact that he is aware that he will cause interference with the plaintiff’s contract may be regarded as such a minor and incidental consequence and so far removed from the defendant’s objective that as against the plaintiff the interference may be found to be not improper.”[4]


[1]    Korea Supply Company v. Lockheed Martin Corporation, (2003) 29 Cal.4th 1134, 1153.

[2]    Quelimane Company, Inc. v. Stewart Title Guaranty Company, 19 Cal. 4th 26 (1998); Pacific Gas & Electric Co. v. Bear Stearns & Co., 270 Cal. Rptr. 1 (1990).

[4] Rest. 2d Torts, § 766, com. j at p. 12; Quelimane Company, supra.

BRADLEY MANNING’S SENTENCE OF 35 YEARS

Ian Wallach, Feldman & Wallach,

 www.feldmanwallach.com

http://www.trialfiendinthenews.blogspot.com

25 year old Bradley Manning was sentenced to 35 years in custody. He can be out between the ages of 34 (approximately) and 58.  Below are some thoughts on some immediate questions.

  • Was His Conduct Criminal?

Because so much information was released, it does not appear that Manning read everything and took the time to protect those who were assisting the United States. A transparent government is essential, and Bradley Manning’s actions helped shed light on terrible practices that the U.S. was engaging in against civilians, reporters, and those detained in Guantanamo. I am glad that someone did what he did, and glad that it helped bring about the end of our Iraqi conflict. But it is still criminal conduct and that requires some form of punishment.

  • Does a 35 year sentence serve the purposes of a criminal sentence (Societal Protection, Rehabilitation, Retribution, and Deterrence)?

Rehabilitation and Societal Protection are not at issue – Manning will never be in a position to have this access again.
Retribution should be, in my opinion, the least important factor in fashioning a criminal sentence. The idea is that the public deserves the satisfaction of a severe punishment – but the value in that is questionable and many, like me, even find it offensive. But it’s a factor, and many people are angry about what Mannng did, and 10 – 35 years in the United States Detention Brigade in Fort Leavenworth, Kansas should satisfy that blood-thirst.

It’s unclear whether this ruling will serve as a deterrent. It is the longest sentence given in U.S. history for leaking classified documents. But it was based was based on a massive release of information – 700,000 classified documents and videos. It provides no indication of what a sentence should be for the release of one document. .

  • Did the judge’s political views affect the sentence?

I doubt it – it’s just not a relevant factor. A bench officer’s duty is to apply the law, not make or change it. Because there is no obligation for a military judge to write the basis of her decision, we may never know the factors she relied on.

  • Did Manning’s sexual orientation effect the sentence?

Probably not. Gay rights groups such as GLAAD initially claimed that he was a “hero”, but they have stayed quiet recently. And the argument that he should receive more lenient treatment — based on his orientation — runs counter to the argument that all people should be treated equally.

If the issue is “enhanced stress for non-heterosexuals in the military due to an anti-gay culture”, then the solution is to implement programs that change the culture and assist the soldiers. It is not to be lenient when crimes are committed.

The defense’s case — from the beginning — has been about mitigating factors. Manning conceded criminal conduct initially (and faced 20 years on the charges he confessed to). This was one mitigating factor put forward by the defense.

  • Did Manning’s statement to the Court effect the sentence?

Acceptance of responsibility is a primary factor in sentencing. Most defendants are pursuing appeals based on claims of factual innocence, and can’t accept responsibility at this stage of a trial. But Manning confessed early on to 10 of the charges, and has always been willing to accept responsibility, and he reiterated that during the sentencing phrase. This likely contributed a great deal to the sentence being closer to the defense’s recommendation of 25 years, instead of the prosecution’s recommendation of 60.

  • What about the First Amendment implications?

Many fantastic organizations — such as the Center for Constitutional Rights – believe that this case has had brutal chilling effects on journalism, and that the application of espionage law was improper. As to the First Amendment issues, it’s a tough call. Had Manning written a book or told a journalist about the videos that he saw, that would surely be protected speech. But the act of taking and sharing information and videos is conduct, not speech, and perhaps why the First Amendment arguments were not present during these proceedings.

Manning himself was a great tool for organizations that seek to curtail the war effort and the expansion of federal power and the reduction of constitutional rights. The videos he released – showing civilians and journalists being killed by U.S. servicemen — helped the anti-war effort. And Manning deserves credit for this. It is also frustrating that these servicemen were never charged, and that Manning will do a lot of time for revealing crimes and the perpetrators of those crimes will never be held accountable.

  • How will this effect the pending Snowden matter?

This decision will likely help the State Department in its request to extradite Snowden – it is an example of someone receiving arguably-fair treatment under similar circumstances. But the two cases are extremely different – Manning was a solder, Snowden is not. Manning released 700,000 documents and videos, and the number Snowden released is not yet known. Manning was tried in a military court, and Snowden, if he is tried, will be tried in a civilian court. Aside from the “leak” factor, the two cases are very different.

Stand Your Ground” Laws and “Castle Laws” And How They Relate To “Self-Defense” Laws

By Ian Wallach, Partner, http://www.feldmanwallach.com

 Stand Your Ground laws (also known as “Line In The Sand” and “No Duty to Retreat”) expressly remove a duty to retreat from perceived deadly force, and can provide additional protections to those who use deadly force when threatened.

Every state has self-defense law a law describing when one can lawfully use deadly force. It’s either a statute, or common law (judicial decisions), or a jury instruction, and essentially says that deadly force can be used to protect oneself if necessary.

A “stand your ground” law is an additional protection that can (a) clarify that there is no duty to retreat from a lawfully-protected area; (b) provide for a hearing that can stop a prosecution; and (c) provide an attorneys’ fees award and other relief against a victim or the family of a victim that brings a suit based on an injury where the plaintiff “stood his ground.”

Some states, like Florida, passed legislation expressly stating that there is no duty to retreat — no matter where you are – (and even providing a hearing that can allow for a prosecution to stop). Other states, like California, achieve almost the same goals, by incorporating the stand-your-ground principle into its self-defense laws.

Stand Your Ground laws are frequently intertwined with “Castle Doctrine” laws. Under the Castle Doctrine, one can use deadly force against an intruder to their home, vehicle, or workplace, without fear of legal responsibility. The Castle Doctrine usually requires that (a) the intruder entered a lawfully-occupied space; (b) that the intruder was acting unlawfully; (c) that the occupant reasonably believed that the intruder could inflict bodily harm on the residents; and (d) that the occupant did not provoke or instigate the intrusion.

About thirty states have passed some express version of a Stand Your Ground law since Florida passed the first in 2005. These states are primarily located in the South and in the some western states (Arizona, Texas). The latter is not surprising and the “stand your ground” concept is deeply-rooted in Western-American culture.  source (http://www.pensitoreview.com/2012/03/22/group-that-promotes-stand-your-ground-laws-funded-by-consumer-brands-like-microsoft-amazon-coke-pepsi-dozens-more/)

Contrary to public belief, California has a “stand your ground” similar to Florida’s (except for the hearing that can stop a prosecution). Elements of criminal charges and available defenses are set forth in the jury instructions, and the most recent instructions used in California are called “CALCRIM”s.

CALCRIM 3470 provides, in relevant part (emphasis added),

3470. Right to Self-Defense or Defense of Another (Non-Homicide)

The defendant is not guilty of <insert crime(s) charged> if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if:

1. The defendant reasonably believed that (he/she/ [or] someone else/ [or]<insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];

2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;

AND

3. The defendant used no more force than was reasonably necessary to defend against that danger.

[A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ <insert crime>) has passed. This is so even if safety could have been achieved by retreating.]

The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another). If the People have not met this burden, you must find the defendant not guilty of <insert crime(s) charged>.

California also has a codified version of the Castle Doctrine:

Cal. Pen. Code § 198.5. Presumption in favor of one who uses deadly force against intruder

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant or substantial physical injury.

The National Rifle Association worked with the American Legislative Exchange Counsel (“ALEC”) to promote passage of “Stand Your Ground” laws. ALEC – a legislative drafting organization with right-wing corporate ties, has always promoted limits on corporate responsibility. ALEC’s draft model law – reprinted below – is a very pro-gun and extreme model, reiterating a constitutional right to bear arms and to be free from criminal activity, and providing attorneys fees awards and additional remedies to those who are sued after injuring or killing others in “stand your ground” scenarios. But as of April 2012, ALEC disbanded its “Stand Your Ground” task force and stopped its support of gun control laws, at the request of its remaining members.

The NRA has actively supported legislation in other states since Florida’s express “Stand Your Ground” law was passed in 2005. As of last year, the NRA had purportedly provided about $2.6MM in support of state level campaigns and committees and politicians that support the legislation. Per the Huffington Post, the NRA gave $125,000 in donations in Florida between 2003 and 2012, and while that doesn’t seem to be that much, it is the most that the NRA has given for any one cause.

It is highly unlikely that these laws will be eliminated. Stand Your Ground laws protect people from being bullied (and legalize any reasonable response). And the Castle Doctrine embodies the generally-accepted principle that we can do what feel is necessary to protect ourselves and those we love at home. And these laws have support from the NRA, from ALEC, and encompass principles that many Americans believe in.

A discussion is now taking place as to how to adjust self-defense laws to reduce the use of deadly-force outside of one’s home, workplace or vehicle. What is needed is legislation that criminalizes the instigation of an altercation while armed, with an enhancement for situations resulting in bodily injury or death. In essence, a law that says “Yes, if you approach someone, while you are armed, and instigate a fight, you can be punished, and if the victim is hurt or dies, you can be punished severely.”

ALEC Model Castle Law (source: http://www.alecexposed.org)

This act authorizes the use of force, including deadly force, against an intruder or attacker in a dwelling, residence, or vehicle under specified circumstances.

It further creates a presumption that a reasonable fear of death or great bodily harm exists under these specific circumstances, and declares that a person has no duty to retreat and has the right to stand his or her ground and meet force with force if the person is in a place where he or she has a right to be and the force is necessary to prevent death, great bodily harm, or the commission of a forcible felony.

Finally, the act provides immunity from civil prosecution or civil action for using deadly force, defines the term “criminal prosecution,” and authorizes law-enforcement agencies to investigate the use of deadly force while prohibiting the agencies from arresting a person in these circumstances unless the agency determines that there is probable cause that the force the person used was unlawful.

Model Legislation

Legislative Resolution and Intent

WHEREAS, the Legislature of [insert state/commonwealth name] finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action from acting in defense of the themselves and others; and

WHEREAS, the “Castle Doctrine” is a common-law doctrine of ancient origins that declares that a person’s home is his or her castle; and

WHEREAS, [insert appropriate reference to the State/Commonwealth Constitution that provides for the right of citizens to bear arms] guarantees the right of the people to keep and bear arms; and

WHEREAS, the persons residing in or visiting this [state/commonwealth] have a right remain unmolested within their homes or vehicles; and

WHEREAS, no person or victim of crime should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack;

*This model is based upon Florida legislation enacted April 26, 2005.

BE IT RESOLVED, the Legislature of [insert state/commonwealth name] hereby enacts the following:

Section 1. {Home Protection, Use of Deadly Force, Presumption of Fear of Death or Harm}

1. A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

a. The person against whom the defensive force was used was in the
process of unlawfully and forcefully entering, or had unlawfully or forcefully entered, a dwelling, residence, or occupied vehicle, or if that
person had removed or was attempting to remove another against that
person’s will from the dwelling, residence, or occupied vehicle; and

b. The person who uses defensive force knew or had reason to believe
that an unlawful and forcible entry or unlawful and forcible act was
occurring or had occurred.

2. The presumption set forth in Subsection (1) does not apply if:

a. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

b. The person or persons sought to be removed is a child, grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

c. The person who uses defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity; or

d. The person against whom defensive force is used is a law enforcement officer, as defined in [insert appropriate reference to state/commonwealth code, which defines the term “law enforcement officer” or similar], who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

3. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony.

4. A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

5. As used in this section, the term:

a. “Dwelling” means a building or conveyance of any kind, including
any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

b. “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

c. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Section 2. {Immunity from Criminal Prosecution and Civil Action}

1. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

2. A person who uses force as permitted in Section (1) [and other state codes which are affected/amended by this legislation and which refer to the use of force including deadly force] is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, except when:

a. The person against whom force was used is a law enforcement officer as defined in [insert appropriate reference to state/commonwealth code, which defines the term “law enforcement officer” or similar], who was acting in the performance of his or her duties and the officer identified himself or herself in accordance with applicable law; or

b. The person using force knew or reasonably should have known that
the person was a law enforcement officer.

3. A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (2), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

4. The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (2).

Section 3. {Severability}

Section 4. {Effective Date}

June 6, 2013 – A record of every call you have made, and every message you have ever sent, has likely been turned over to the FBI and the NSA. Seriously.

On April 25 of this year, United States District Judge Roger Vinson of The United States Foreign Intelligence Surveillance Court signed an order mandating all telephone records of calls to, from, or within the USA through Verizon be produced the FBI (http://www.guardian.co.uk/world/interactive/2013/jun/06/verizon-telephone-data-court-order).
It is potentially the broadest information-collecting Court order ever made known to the public – and that part wasn’t intentional (the Order states it is to be classified until 2038), and it makes it unlawful for anyone to leak the Order, stating:
IT IS FURTHER ORDERED that no person shall disclose to any other person that the FBI or NSA has sought or obtained tangible things under this Order, other than to: (a) those persons to whom disclosure is necessary to comply with such Order; (b) an attorney to obtain legal advice or assistance with respect to the production of things in response to the Order; or (c) other persons as permitted by the Director of the FBI or the Director’s designee.

Because this specific order – which only addresses Verizon – makes it a violation for anyone to publicize its existence, it is a pretty fair guess that similar orders applying to other cell-phone service providers are also in existence.

The Verizon order states that it does not apply to “the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer” – which gives the illusion of some protection, but I say “illusion” because that information could easily subsequently be obtained by getting a warrant, or by someone who feels no need to get a warrant, or by another order which very well may already exist. Similarly, while the Order does not appear to encompass text messages, such information is likely accessible for those same reasons.

I am not surprised that the Order doesn’t apply to calls made overseas — it’s not likely that the FISC would have jurisdiction to do so.

And guess what – per the Obama administration, this has been happening for years (http://www.guardian.co.uk/world/2013/jun/06/obama-administration-nsa-verizon-records). Which on one hand, is disturbing in a “Big-Brother-Is-Watching” fashion, and on the other hand is consoling, as apparently it’s been a secret, which means that phone call information obtained without wiretap warrants have not been used for criminal proceedings. A White House Spokesperson has said they are “vital for protecting national security” – but didn’t say how, or provide a single example. Al Gore described this “secret-blanket surveillance” as “obscenely outrageous.”

The power for the Executive Branch to acquire this Order originated in the first version of the Patriot Act. But even the Patriot Act required the FBI to notify congress about warrants sought under its provisions, and this is no longer the case. According to a statement issued today by the Center for Constitutional Rights, “The Patriot Act provision requires the FBI to notify Congress about the number of such warrants, but this single order covering millions of people is a deceptive end-run around that disclosure requirement.”

After 9-11, the Patriot Act sounded like a great idea, even though it was a tremendous expansion of executive power. And now that this 12-year old power is in the hands of a new President, who doesn’t want to let it go. But who would you prefer to have protecting your privacy – a Judge, familiar with the bounds of the constitution and the harm from interfering with the rights it protects, or a President, wanting to keep his power as broad as possible.

There is already a system in place for law enforcement to get access to phone records and even phone-calls. It’s called a search warrant. And the requesting agency needs to pony up a real justification to get this private information. And if the judge issues the warrant, the information sought won’t likely be excluded from a trial (as of 2010, only four motions seeking to suppress information obtained from wiretap warrants had been granted in California – only four, out of thousands of applications). This has been the proper vehicle to protect the rights of a nation and the rights of its population. But this country-old process has been bypassed – without our knowledge or permission.

Of course, I am thankful that there have been no foreign terrorist attacks on U.S. soil since 9/11. But I would like to see some kind of link between the Patriot Act, these Orders, and the lack of an attack – rather than just get a promise that they are somehow connected.

I’m open to hearing why we need this type of order, but feel that we are entitled to, at a minimum, a justification that makes sense (not just a reference to big fear and a promise that those people spying on my calls are really doing so for my protection).

When I pick up my phone to speak to someone, and share my thoughts, fears, and frustrations, I’d like to believe that no else is listening.

Is it legal for Arne Svenson to sell photos taken of people in their glass-walled apartments? Yes, it is.

By Ian Wallach, www.feldmanwallach.com

People who live in glass houses shouldn’t whine their pictures are taken. Get some curtains.

There is a public outrage now in New York City about photographs sold at the Julie Saul Gallery. The pieces are by New York City artist Arne Svenson, who is selling photos he took from his apartment window – into the curtain-less windows of a people in a glass apartment building in (he is not showing faces).

11 years ago I argued Hoepker v. Kruger, 200 F.Supp.2d 340 (2002) which addressed some of these issues.

Is his conduct legal? Yes. Even if it’s offensive. First, it’s not criminal conduct. It’s not a criminal Right of Privacy violation. NY. Civil Rights Law, Section 50, provides that “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” But Svenson’s photo-taking is for the purposes of art — First Amended Protected conduct. It would be different if it was used to sell widely-marketed T-Shirts, cups, etc. But this is for the limited purpose of artwork, so it’s not a violation.

And there isn’t a Peeping Tom Statute that could apply. New York law criminalizes using a camera to secretly photograph people who have a reasonable expectation of privacy – but no one can claim that they have a reasonable expectation of privacy in front of a wall made of glass.

Is there a potential civil case that those photographed could bring and win? No. NY. Civil Rights Law, Section 51 provides civil damages for this conduct. But a plaintiff would not win here. First, it is first amended protected conduct (artwork for sale on a limited basis). Second, the value of the work stems from the artist — Arne Svenson — and not the value of the likeness of the subject. For example, since no one’s face is shown, people are buying the photo because its artwork (and, more importantly, Svenson’s artwork). But if an artist were to shoot a picture of Sting, and sell thousands of shirts with that photo, Sting could successfully sue, because people would be buying it because it’s a picture of Sting – not because it’s the work of the photographer.

So what can be done if this is offensive?

If this conduct offends you — don’t buy the artwork. Tell others not to buy the artwork. And otherwise, because faces aren’t shown and no one knows who is who, try not to be bothered.

Oh, and go buy some curtains.