The Microsoft-Ireland Case is Moot

We covered this before here and here.

But the high-profile case of United States v. Microsoft Corporation is now over. The question was whether the government could force Microsoft to turn over data that it stored on servers in other countries. The problem was that federal law didn’t allow the government to do that, or at least it wasn’t clear. So Microsoft challenged the government. It lost in the trial court, won on appeal, and landed before the U.S. Supreme Court last fall.

The Supreme Court heard the case in February, but in March, the new federal spending bill changed everything. It included a law called the CLOUD Act, which stands for Clarifying Lawful Overseas Use of Data.

Under the new law, companies like Microsoft must produce data in their possession, custody, or control even if it’s located outside the United States. They may object if they reasonably believe that a target is not from the U.S. and that, by producing the data, they will break the laws of a “qualifying foreign government.” That means a government with which the U.S. has agreed to grant reciprocal access to such data for use in criminal cases. But there are no agreements yet. To get there, a foreign government must, among other things, not target U.S. persons, and it must be committed to due process, data privacy, free speech, and other civil rights and liberties.

Within a week of the new law, the U.S. moved to dismiss the case as moot.

A few days later, Microsoft agreed. For the full text of the CLOUD Act, see here, and scroll all the way down to page 866. For the company’s detailed statement on the new law, see here.

And so the trilogy is complete.

The End of Absolute Immunity for Prosecutors

Another outstanding feature by The Marshall Project.

It’s written by a senior federal trial judge in New York. For 23 years, he’s sentenced the likes of murderers, rapists, gangsters, and fraudsters—some to prison for the rest of their lives. But he says it’s time to put an end to absolute immunity for prosecutors.

Absolute immunity is what it sounds like. It doesn’t just protect prosecutors who follow the rules but make mistakes. It protects those who knowingly and purposely break the rules.

Believe it or not, they can do all kinds of dirty deeds to convict you—even to frame you, on purpose—and you have no right to sue them for it. Crazy, huh? They can withhold evidence, put on false evidence, coerce witnesses to testify against you, or worse. No matter the facts, you have no civil rights or remedies against them as a matter of law.

But as the author notes, cops don’t have absolute immunity; they have a form of qualified immunity, so what’s the difference?

For an overwhelming majority of prosecutors, there would be no difference.

But truly bad actions should suffer civil and criminal consequences for their obstruction of justice. For more on why, see this blog post by the American Constitution Society.

When You Walk a Mile in Their Shoes

You may never serve on a jury, but suppose you did.

How would you feel—how would any of us feel—if we voted to convict someone innocent?

This person knows. In 2009, she voted to convict a 17-year-old boy for murder based on the testimony of one eyewitness. The witness and victim were friends, and they were in a car at the time, with the victim driving. They turned a corner and almost hit a pedestrian, which led to a confrontation that ended when the guy pulled a gun, shot the victim, and fled. At trial, the witness took the stand and identified the boy, and that was enough for her and nine other jurors in a state that only required ten of twelve to convict.

When she learned he was innocent, she signed an affidavit that helped free him after nearly ten years in prison. Here’s a local story about his exoneration.

Now when she thinks back to the trial, she sees things differently.

She remembers the boy sitting in court: slumped over, doodling on paper. Back then, she thought his body language seemed cavalier, like he knew he did it but didn’t care. Now she wonders about that, and she sees defeat and despair instead.

She remembers the eyewitness seemed so sure of his identification. Back then, she thought it made sense: If she had seen her friend get murdered, she’d remember who did it, too. Since then, she’s learned that eyewitnesses are often wrong, especially in times of stress and trauma. And yet by the time of trial, they may testify with total certainty.

Today, she wants to sit with the boy and tell him she’s sorry.

And she hopes she never has to be in that situation again.

But if it were me or my loved one, I’d want her on that jury.

New California Criminal Laws: Part Deux

To conclude the series, here’s the fab five we promised last week.

Kids age 15 or younger must talk to a lawyer before the police interrogate them. This is Senate Bill 395. It amended the Welfare and Institutions Code to require that kids consult a lawyer before they waive their Miranda rights. They can do the consultation in person, by phone, or by video, but they can’t waive it even if they want to. If they don’t get one, a court may exclude their statements from evidence at trial (if it gets there). But it may not as well. And there are exceptions for emergencies. The law expires on January 1, 2025.

Kids whose juvenile cases are dismissed or diverted get their records sealed. This is Assembly Bill 529. It amended the Welfare and Institutions Code to seal records from a juvenile case automatically if the case is dismissed or the kid successfully completes a diversion program. It takes these cases and treats them the same as another recent law that applies when kids complete probation.

More kids get a crack at sealing their records. This is Senate Bill 312. It amended the Welfare and Institutions Code to give kids who weren’t even eligible before a chance. It applies if you were found to have committed an especially serious or violent offense when you were at least 14 years old. Now, a court may consider your petition to seal under limited circumstances. It doesn’t apply if you were required to register as a sex offender. And your records can still be looked at by the courts or district attorney if you get in trouble again. For more on sealing juvenile records, see here.

The state continues to implement Prop 57. Remember Prop 57? It required judges to decide whether a kid age 14 or older could be prosecuted in adult court, and it promised a shot at parole for nonviolent offenders who’ve served the bulk of their sentence. But it also aimed to expand the credits an inmate could earn through good conduct or specific rehabilitative programs. Now, the Department of Corrections and Rehabilitation is finalizing its regulations under Prop 57, and you can find more information about them here.

Your Uber, Lyft, or taxi driver can’t have a blood-alcohol level more than .04. This is Assembly Bill 2687, which passed in 2016. It amends the Vehicle Code to apply the lower limit for truckers and other commercial drivers. The law is effective July 1, 2018.

They May Be Intelligent, But Are They Wise?

Speaking of fair shakes, here is a wise word of caution about the emerging, expanding use of computer programs to evaluate people in the justice system, whether at bail hearings, sentencings, or elsewhere.

The author is a former software engineer at Facebook who’s now studying law at Harvard. Her point isn’t that we shouldn’t use or consult these programs, but we should know what we’re getting into and proceed with caution. It’s troubling, for example, if we use programs that no one in the field fully understands—not judges, not lawyers, not probation—because the manufacturer won’t disclose a proprietary algorithm.

She says we turn to computers in part to control for our own biases, “[b]ut shifting the … responsibility to a computer doesn’t necessarily eliminate bias; it delegates and often compounds it.” That’s because these programs mimic the data we use to train them, so even the ones that accurately reflect our world will necessarily reflect our biases. Plus, they work on a feedback loop, so if they’re not constantly retrained, they lean in toward those biases and drift even further from reality and fairness. So they don’t just parrot our own biases; they amplify them. She saw this phenomenon time and again as a software engineer.

She agrees that algorithms can work for good. They’ve reportedly helped New Jersey reduce its pretrial jail population, for example.

But let’s proceed with caution, she says:

“Computers may be intelligent, but they are not wise. Everything they know, we taught them, and we taught them our biases. They are not going to un-learn them without transparency and corrective action by humans.”

California’s New Sex-Offender Registry

Big news out of California last week.

Beginning in 2021, the state will replace its current sex-offender registry, which requires everyone to register for life, with a three-tiered system that distinguishes among low-risk, medium-risk, and high-risk offenders.

People in the first tier will be able to petition to end their registration after ten years. You’re in this tier if you were convicted of a misdemeanor or a non-violent, non-serious felony.

Those in the second tier will be able to petition after twenty years. This applies if you were convicted of a serious or violent offense but do not pose a high risk of reoffending.

Those in the third tier will continue to have to register for life. This applies to high-risk offenders, repeat offenders, and sexually-violent offenders.

For juveniles, there are two tiers. Those in the first tier can petition for removal after five years. Those in the second tier can do so after ten years.

In all cases, the district attorney can oppose your petition, and the court can deny it. If it’s denied, you can petition again, but you’ll have to wait at least one year and as many as five.

Almost everyone supported the new law, including law enforcement, which argued the current registry was so large that cops couldn’t focus effectively on the high-risk offenders.

For local and national press coverage, see here, here, and here.

For the text of the new law, see here.

Impaneling a Jury of Your Peers

Do you have a civil or criminal case that’s heading to trial?

Starting next year, California will have new rules for picking a jury in both types of cases.

First, the rules for criminal cases. This is Assembly Bill 1541. It brings jury selection in criminal trials more in line with the procedure for civil trials.

The process will still begin like before. The court will question the jury pool to see if anyone knows the parties or witnesses or otherwise holds a bias that will keep them from being fair and impartial. The court may also agree to ask additional questions that the lawyers have submitted in advance. Then the lawyers will get their crack at it, though the court can set reasonable limits on their questions.

The new emphasis, however, will be on giving lawyers more time and room to question the pool and follow up on the answers. The court can still set limits, but they can’t be arbitrary, inflexible, or unreasonable. In setting those limits, moreover, the court must consider the complexity of the case and even the amount of time the lawyers want. It should allow them to follow up on the court’s questions as well as their own, and it shouldn’t screen their questions beforehand unless they’re really trying to indoctrinate the jury.

Next, the rules for civil cases. This is Senate Bill 658. It makes fewer changes to existing procedure but also puts greater emphasis on letting the lawyers conduct voir dire.

How will the courts apply these rules in practice?

That’s where the rubber meets the road.

Two Sides of the Same Coin

It’s not always easy to weigh the scales of justice.

Sometimes, like in the two stories from last week, the system treats people too harshly, and it ruins their lives.

Other times, though, someone’s unfairly blamed for not being harsh enough.

That’s the premise of this piece by a former chief criminal judge who was vilified for setting someone free without bail who then committed another crime.

But he made the best decision he could at the time. The guy was charged with failing to register as a sex offender. It’s a fairly common charge, and the guy was there for arraignment along with some thirty people.

It was a typical busy day in court, and the judge had to make a bunch of good decisions quickly. The prosecutor’s office called for a high bail amount that could have kept the guy in jail pending trial. But they always did that in these types of cases.

Under the law, the guy was presumed innocent in this case, and he was supposed to be released unless he was a flight risk or danger to the community. He didn’t seem to be a flight risk because he’d come to court on his own after being summonsed by mail. And he didn’t seem like a danger to the community, either. He wasn’t charged with a violent crime, and though he’d been convicted of forcible rape in 1993, that was over twenty years ago.

The judge heard from both sides and then followed the law, releasing him.

A week later, the guy was arrested on suspicion of rape and kidnapping. He ended up pleading guilty to lesser charges in that case in exchange for a seven-year sentence. But in the meantime, some hell broke loose.

The judge was called incompetent; he was called pro-rape; he was attacked on local talk radio and even the national news.

Here is how he dealt with it.

 

Hidden Bias and Fair Trials

You may serve on a jury one day, and if you do, your thought process will mean a lot to the people involved.

Those people, and the system as a whole, will rely on you to give them a fair trial.

To that end, one court has created a video to help potential jurors understand their hidden biases. These are the mental shortcuts we use to make decisions about people or things. We all have them, and they help us make sense of the world around us. We all have them because we’re all human, and we often don’t even realize it.

The thing is, they’re often wrong. For example, one study looked at scientists who were hiring a laboratory manager. The experiment was that all of them were given the exact same resume to review except some copies bore a man’s name and others a woman’s name. Well, guess what? Both male and female scientists scored the male candidate as more competent and worthy of the job even though the resumes were exactly the same. Without realizing it, these scientists harbored a hidden bias about gender, and it clouded their judgment.

The video is shown during jury selection in the U.S. District Court for the Western District of Washington. It features three people: the top federal prosecutor for the district, a senior trial judge there, and a prominent defense lawyer. The lawyer explains the value of talking about hidden bias this way:

“You have two choices: either talk about it or don’t talk about it, and haven’t we seen what happens when we don’t talk about it?”

The upside is that by taking the time to really think about things, and by taking in more information, we all make better decisions.

A Model Penal Code for the 21st Century

Charging decisions, which we wrote about last week, matter for many reasons. They drive plea bargains, and they affect sentencing. You file a felony, for example, so that the guy will plead to a misdemeanor without giving you much trouble. It happens all the time.

Bad charging decisions, though, don’t just cause wrongful convictions or unjust sentences.

They cause other consequences that continue to torment you after you’ve served your sentence. Your actual sentence may include your jail or prison time, the fines you must pay, or the terms of probation you must follow. You did the crime so you should do the time and pay the fine, right? Okay, but then even after you do, you still may not be able to cast a vote, land a job, rent a home, hold a license, or get a loan. These are the so-called collateral consequences of a conviction.

But the future may be brighter.

Last week, the American Law Institute approved major changes to the Model Penal Code to address these consequences. The ALI is the leading scholarly body that aims to clarify, modernize, and otherwise improve American law. The Model Penal Code is its seminal work in the area of criminal law. It doesn’t have the force of law by itself, but it’s influential. Most states have used it in passing their own laws, and courts cite to it often.

The new provisions would require you to prove, by clear and convincing evidence, that a collateral consequence of your conviction imposes a heavy burden on your ability to rejoin society and that public safety doesn’t need you to suffer it.

If you do that then a court could relieve you from that burden. A court could even issue a certificate of rehabilitation that shields employers, landlords, or others who give you a second chance from civil liability.

Already, state legislatures have been proposing and passing laws to give people a fair shake to prove themselves before dismissing them based on the past.

Hopefully, that momentum keeps building. We should consider what it means to have a record, anyway, when most people either have one, know someone close to them who does, or would have one but for the grace of God. And we should consider how we judge people altogether in a world in which our every action can leave a permanent trace.

The twenty-first century may demand it.

Ratings and Reviews

10.0Mani Dabiri
Mani DabiriReviewsout of 7 reviews
The National Trial Lawyers
The National Trial Lawyers
Mani Dabiri American Bar Foundation Emblem