Judge Posner has authored an interesting opinion in United States v. Flores-Lopez.
In the case police seized a cell-phone and took some phone numbers. But in the process of deciding the limited Fourth Amendment issue, Judge Posner raises (but leaves to another day) the legitimate question that today’s cellphones are in fact computers and therefore cannot be searched without a warrant.
Check it out.
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Thanks to Volokh Conspiracy here is an important case relevant to “searches” of computers.
We hold that the act of Doe’s decryption and production of the contents of the hard drives would sufficiently implicate the Fifth Amendment privilege. We reach this holding by concluding that (1) Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.
First, the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.
We are unpersuaded by the Government’s derivation of the key/combination analogy in arguing that Doe’s production of the unencrypted files would be nothing more than a physical nontestimonial transfer. The Government attempts to avoid the analogy by arguing that it does not seek the combination or the key, but rather the contents. This argument badly misses the mark. In Fisher, where the analogy was born, and again in Hubbell, the Government never sought the “key” or the “combination” to the safe for its own sake; rather, the Government sought the files being withheld, just as the Government does here. Hubbell, 530 U.S. at 38, 120 S. Ct. at 2044 (trying to compel production of documents); Fisher v. United States, 425 U.S. at 394–95, 96 S. Ct. at 1572–73 (seeking to access contents possessed by attorneys).
Requiring Doe to use a decryption password is most certainly more akin to requiring the production of a combination because both demand the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory. See Hubbell, 530 U.S. at 43, 120 S. Ct. at 2047. Hence, we conclude that what the Government seeks to compel in this case, the decryption and production of the contents of the hard drives, is testimonial in character.
The case is In re Grand Jury Subpoean Duces Tecum v. Doe, from the Tenth.
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From time to time I’ve referred to federal jury instructions to help craft a “novel” members instruction. Sometimes you have to refer to federal instructions for other reasons. For example, I just completed a litigated “wire fraud” case, 18 U. S. Code Sec. 1343, where we needed to figure out the elements for assimilation under Article 134(3).
Here is a link through federalevidence blog that should help.
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Here is an interesting case from the DC Court of Appeals – Pettus v. United States – about the admissibility of handwriting testimony, and a link to a blog item.
H/T Crime&ConsequencesBlog
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The NMCCA has issued a published opinion in United States v. Walker. This case began its appellate life with a death penalty sentence.
In 2008, this court issued an opinion, United States v. Walker, 66 M.J. 721 (N.M.Ct.Crim.App. 2008), in which we affirmed one of the findings of guilty to violating Article 118, UCMJ, except for the language “with premeditation,” set aside the finding of guilty to the armed robbery specification, and affirmed the findings of guilty for the remaining charges and specifications. We set aside the sentence and authorized the CA to hold a rehearing on the armed robbery and the excepted language as it pertained to the one murder specification, and on sentencing. Id. at 757. At the conclusion of the findings rehearing, a general court-martial composed of officer and enlisted members found the appellant guilty of armed robbery and premeditated murder. The appellant was sentenced for all of his offenses to confinement for life, a dishonorable discharge, reduction to pay grade E-1, and a reprimand.
I take this to be Life, not LWOP; which NMCCA has affirmed.
After carefully considering the record of trial and the parties‟ briefs, we conclude that this court erred in our 2008 opinion to the extent that we authorized a partial rehearing on the sole element of premeditation for the one Article 118, UCMJ, specification. That portion of the proceeding violated the
appellant‟s constitutional protection against Double Jeopardy. Accordingly, we set aside the finding of guilty from the rehearing as to Specification 1 under Charge III, and reaffirm our earlier finding of guilty of the lesser included offense of unpremeditated murder. We find that the remaining findings, including the finding of guilty at the rehearing of armed robbery and the findings affirmed in our 2008 opinion,
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NMCCA dismisses a conviction for consensual homosexual sodomy in United States v. Stratton. It’s unpublished but worth the read.
Appellant was accused of forcible sodomy, but was convicted of consensual sodomy. That means Lawrence and Marcum had to be discussed. Read this case for the following:
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There appears to be a split shaping up between the circuits over the use of a surrogate to introduce autopsy reports. Thanks to federalevidence.com here are the basics.
[Are] autopsy reports are admissible under the Confrontation Clause. The First Circuit has held that autopsy reports may be admitted without the testimony of the report author consistent with the Confrontation Clause. See United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006) (autopsy reports as public reports were “not subject to the strictures of the Confrontation Clause”) [Note, case decided before Melendez-Diaz]; United States v. De La Cruz, 514 F.3d 121, 133-34 (1st Cir. 2008) [n.1] (“An autopsy report is made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and contemporaneous reporting of a series of steps taken and facts found by a medical examiner during an autopsy. Such a report is, we conclude, in the nature of a business record, and business records are expressly excluded from the reach of Crawford.”), cert. denied, 129 S.Ct. 2858 (2009); see also First Circuit Identifies And Discusses Crawford Confrontation Clause Open Issues.
With that FE provides the case that sets the conflict, and it’s a surrogate case.
Eleventh Circuit reverses based on the introduction of autopsy report prepared by non-testifying witnesses and the testimony of a medical examiner who had not performed the autopsy; the chief medical examiner could not provide surrogate testimony for non-testifying examiners who prepared autopsy reports, in United States v. Ignasiak, _ F.3d _ (11th Cir. Jan. 19, 2012) (Nos. 09-10596, 09-160).
Here’s a phrase we need to hear (as well as others) in attempted surrogate cases: is the opinion a “truly independent expert opinion.” Ignasiak, _ F.3d at _ n.21. Or another way to say that might be, ‘can any of the drug lab experts “truly” be “independent” when testifying about events in their own lab?’
Does United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), resolve the medical examiner surrogate issue?
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Cert. was denied in de la Cruz, De La Cruz v. United States, 129 S.Ct. 2858 (2009). Here is the SG’s brief in opposition.
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Oooops, I meant H.M. the Queen v. Delisle.
The Winnipeg Free Press reports on a cross-border military justice case. It begins,
Putting an accused navy spy on trial represents a potential legal and intelligence nightmare for the . . . government, one where it will have to resist the temptation to dispense justice in secret, say experts.
[T]he Crown will have a significant arsenal of tools to bar the door to the public and media, but at the same time there will be pressure on prosecutors to hold as much of the proceedings as possible in open court.
. . . .
"In trials like this in the U.S., a lot of the evidence has been in camera."
In looking for some Canadian MJ’s I came across this interesting court-martial related case, Canada v. Canada, 2006 FC 1532, [2007] 3 F.C.R. D-1 December 21, 2006.
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Seaman Apprentice Kevin Razzoli? Well those of us with clients in confinement know they have a lot of time to ponder their cases. He was sentenced to 25 years confinement in 1987 for attempted murder. You’d think he’d be on parole by now. But . . . The lesson for current clients is that to get parole one point is to have a good prison record.
So, in 1989, the Navy-Marine Corps Court of Military Review affirmed his conviction and sentence in a short per curiam opinion addressing his speedy trial issue. United States v. Razzoli, NMCM 88-1220 (N.M.C.M.R. July 14, 1989), pet. denied 29 M.J. 314 (C.M.A. 1989).
Not satisfied with the results in the military system, he began filing habeas corpus petitions and other lawsuits. So much so that,
A review of the federal courts’ PACER Case Locator service reveals that Petitioner is a serial filer of habeas corpus petitions in several federal courts. Some of his litigation history was summarized in Razzoli v. U.S. Parole Commission, No. 10-cv-1842, 210 WL 4622178, at *1-3 (E.D.N.Y. Nov. 5, 2010). He also has filed over twenty civil rights lawsuits against federal law enforcement agencies and officers since his military conviction for attempted murder in 1987. See, e.g., Razzoli v. City of New York, 08-cv-4586 (S.D.N.Y.), Order of Dismissal, dated May 19, 2008, at 7-8 (noting that this was the plaintiff’s fourth complaint since February 2005, the judge stated: "I hereby warn plaintiff that the further filing of non-meritorious cases may result in the issuance of an Order barring plaintiff from filing any further actions without prior leave of the Court.").
Razzoli v. U. S. Parole Commission, et al., Civ. Action 11-7227, n.1 (DC, NJ Jan., 11, 2012). In this most recent litigation the petition was rejected for failure to pay the $5.00 filing fee or present an acceptable request to proceed in forma pauperis. The court indicated that his petition was “unintelligible as to the grounds,” and that any new one should “clearly stat[e] the grounds.”
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