I'd like input from journalists and bloggers.

Here's a hypothetical. You're a blogger and you write about a person who has been thrust into the spotlight — they are mildly internet-infamous. That person emails you and asks if they can talk to you off the record. You agree. They make a series of statements to you about the litigation that is the subject of your post. Some months later, that person's lawyer files a motion in court with a representation contradicting something that the person told you off the record.

So: either the person lied to you during the off-the-record communication, or the person's lawyers are lying to the court.

Does the ethical obligation to keep the communication off the record continue?

I don't think a single lie on a single subject vitiates the off-the-record agreement as to the whole communication. However, as I have said before, I am troubled by the prospect that a journalist can be bound by a promise to a tipster when it appears that tipster is lying to a court.

What do you think?

It's time for the Road to Popehat, the feature in which we check out the traffic logs, see what searches brought people here, and wonder what good the NSA is if it hasn't Gitmoed some of your crazy asses.

After being away for a month, I was a little concerned about what sort of flotsam and jetsam had accumulated. Should I have been worried? Yes.

high school musical killing a man: The more sequels there are, the more desperate they get for plots.

can you kill yourself with a fork: Yes. The crucial decision is which fork. You don't want to use the wrong one and become the laughingstock of the social season.

difference between belittled and offended: You are belittled if I have belittled you. You may or may not be offended, depending on whether you understood that I was belittling you. Was that clear?

how do i get a stranger to touch my vagina in public: The government doesn't want you to lose sleep over such questions, and has thoughtfully arranged for the TSA to do so if you ever want to fly domestically.

what the navy dont want you to know: That ain't rum.

why would a rosicrucrusian talk to you about popehat? It's part of a plan. Shhhh.

is threatening to defame someone if you don't pay them blackmail: It's possible you haven't thought this situation all the way through.

meth how much can you make one box mucinex d: It was perhaps inevitable that later seasons of Breaking Bad would not be able to sustain the raw menace and depravity of the first few.

videos of women being fucked by small farm poneys: You may have shaken hands with this person today.

under canada law can someone utter threat to a fetus: Yes! Moreover, under Canadian law, it is a hate crime to say unpleasant things about fetuses, or generalize about them in any way, or in any way hurt their feelings.

POEHAT: "Quoth the raven, snort my taint."

Sooner or later, criminal defense attorneys reach three depressing conclusions about their fellow Americans.

The first depressing conclusion is wow, most of these people don't really support the presumption of innocence or due process of law or vigorous protection of the rights of the accused, especially when presented with an unpopular defendant. This realization is not unique to attorneys; almost everyone interested in criminal justice reaches it.

The second depressing conclusion is wait a minute, sometimes people really do get how important it is to challenge the government's evidence and to protect constitutional and statutory rights! This conclusion sounds cheerful, but is actually depressing because it occurs so rarely.

The third depressing conclusion — following hard upon the second — is aw, shit, people only care about due process in that case because it suits their political narrative.

Continue Reading »

Ahem. Where was I?

Oh yes. The mailbag.

I received two identical emails from this gentleman inside a week:

Dear popehat.com,

I hope this message finds you well. My name is Austin Staubus and I am with Lanista Concepts, a premium boutique ad-agency located in Dallas, TX. I recently discovered your website and wanted to inquire about potential advertising opportunities.

Lanista Concepts specializes in increasing ad revenue through both manual and programmatic efforts and offers the most competitive and complete monetization solution on the market. As such, we are confident we can outperform your existing solution.

Further, we specialize in certain verticals and feel this could become a mutually beneficial partnership. If you would, please put me in touch with the person or department that deals with your business development so we can discuss further.

Look forward to hearing from you.

Respectfully,

Austin Staubus
Lanista Concepts Ad Agency
[address and phone number ommitted]

Today I responded:

Dear Mr. Staubus,

Thank you for your inquiry. I am happy to hear from a reputable agency, particularly a premium boutique.

We at Popehat are definitely interested in increasing our revenue, owing to certain recent expenses that prudence and confidentiality agreements prevent me from explaining in detail. To date our ad revenue has been disappointing. Perhaps that's because we've been focusing on manual methodologies of paradigm interstice optimization. It never even occurred to us to take a programmatic approach to monetization! That's why you're the professional and we aren't.

Though I am eager to hear more, I am concerned at your reference to "certain verticals." Which verticals are these? If our website has a horizontally-focused design, will they still work? Or does verticals refer to things that are very tall?

Also, I assume that we would have some ability to veto certain types of advertising on our own site. We are all men of the world here, Mr. Staubus, and not prudes. But there are some things that our good consciences will not permit to be advertised on our web site. We would have to have a careful conversation about certain juvenequinallian issues.

Very truly yours,

Ken
www.popehat.com

Austin was cautious, but optimistic, in response:

Hey Ken,

Thank you for your quick response. That was, hands down, the best first response I've ever received. Your website analytics look great, and we feel confident we can increase your revenue. Your reputation for quality content online is nothing short of impressive.

Here are a few facts about Lanista Concepts and how we differentiate ourselves.

A. We're a 100% fill remnant solution.
B. We focus on specific verticals.
C. Every website we work with receives a custom set up to ensure optimization (we're not a "plug and play" solution).
D. We put your inventory in front to approximately 3,000 buyers.

E. We provide seven-day-a-week ad and technical assistance.

All of the ads we run are brand-safe. You won't experience and pop-ups, pop-unders, or ads that would be intrusive. In fact, we have the ability to filter the units so our publishers don't receive ads that are contrary, or questionable, to the aim of their site.

Further, I apologize if my mention of certain verticals was unclear. By verticals, I simply mean the type of website. Our main verticals are politics and news. You would not need to change the design of your site. In fact, the layout looks great.

Finally, Lanista Concepts works with a limited number of sites. We only work with publishers we know, for a fact, we can help. We feel confident Pope Hat is one of those websites. Please let us know we can earn your business.

Sincerely,

Austin Staubus

Bored now.

Austin:

Thanks for your response! We at Pope Hat are heartened. We didn't know it was possible for someone to focus on our specific verticals. We assumed our specific verticals would go neglected. Especially Clark's.

But I have more questions.

1. You say you have the ability to filter units. Is your filter pony-compliant? Can you assure no pony content? I need assurance with Level 4 safety here. I can't and won't have it, Austin, for a pony ad to slip through and have you telling me you thought it was a stunted donkey or something.

2. What kind of methodology do you use to match appropriate ads to content? For instance, say you wanted to match ads to our series mocking spammers who send us solicitations for guest posts, even though we have been ridiculing that for years (see, for instance, http://www.popehat.com/2013/04/30/wont-anybody-think-of-the-children-and-the-ponies-and-the-ponies-attacking-the-children/) — what would you match to that? What about our series naming and shaming web advertising spammers (like so: http://www.popehat.com/2012/10/24/ponies-have-entered-the-popehat-ponies-have-entered-the-popehat/) — what would you match to that? Would you use heuristic algorithms? Are they vertically programmatic?

Very truly yours,

Ken

Maybe you think I'm being mean to Austin, by naming him here.

I'm not. Austin, and his company, need to learn an important lesson: spamming has consequences. It should.

Spamming lets companies send vast numbers of emails cheaply and hope for a few hits. Collectively it inflicts costs — strain on the infrastructure of the internet, wasted time, spam filter expenses, annoyance. That cost isn't paid by the spammers. It's paid by you, and by me.

Spammers need an incentive not to spam. This is one such incentive. Ladies and gentlemen of the marketing profession, when you spam blogs, now and then you're going to find someone like me who is going to name, shame, and ridicule you. You deserve it. You deserve it because, like a telemarketer, you're willing to annoy thousands for a handful of bites. You especially deserve it when you offer me the disrespect of a lie — when you say "Your reputation for quality content online is nothing short of impressive," as if you had any clue who we are, other than a blog email address you've gotten off of some auto-generated list.

I hope this embarrasses you, Austin Staubus of Lanista Concepts Ad Agency. The way you elect to do business makes the world a measurably worse and more irritating place.

Edited to add:

And, as a palate cleanser, one who didn't write back:

Hi,

I'm looking for a site to do a guest post on and found yours to be a fit. I have several articles on personal injury, DUI, criminal cases (and anything about law) that you might want to have on your site. I understand that you want nothing but the best pieces there so I made sure my articles are all fresh, informative, and original (absolutely free from plagiarism) . The article will have at least 300 words and will contain two links back to the site I'm developing. The piece is free!!

If you're interested, please let me know.

All the best,
Rommel

Rommel:

You magnificent bastard, I read your guest post!

But I have concerns. 300 words? That's like half of one of my mid-paragraph parenthetical comments. Also, I appreciate that you have posts on personal injury, DUI, and criminal cases. But we have very specialized interests. So I ask you: would it be possible to get a guest post on, instead of driving under the influence, riding under the influence? Preferably the post would be about riding ponies under the influence — of drugs or alcohol, not of the ponies (Of COURSE you're under the influence of the pony when you are riding it. How could you not be? They know all. They see all. We imagine we have free will, we imagine we choose our own path, but we are fools — we merely do their bidding [Their dark, pony bidding]) — but in a pinch it could be about adult horses, I suppose. Or camels. Or dromedaries. (Dromedari?)

I look forward to hearing more.

Cheers,

Ken
www.popehat.com

All of Popehat's Prenda coverage is collected here.

There have been many small-to-medium developments in the Prenda Law saga. I'm preparing for trial, so I won't be covering them any time soon. But I will leave you with one: a consequence for a Prenda Law lawyer in the Ninth Circuit.

You may recall that Prenda figure Paul Hansmeier has dabbled in representing people objecting to proposed class action settlements. Apparently Mr. Hansmeier was seeking admission to the bar of the Ninth Circuit in order to represent an objector on the Groupon class action. The Ninth Circuit, having seen Judge Wright's order, is less than welcoming in an order by an appellate commissioner:

On April 5, 2013, attorney Paul R. Hansmeier entered his notice of appearance as counsel of record for Objector-Appellant Padraigin Browne. At that time, Hansmeier’s application for admission to the bar of the Ninth Circuit was pending.

On May 15, 2013, the court ordered that Hansmeier’s application for admission be held in abeyance pending the outcome of his referral to the Minnesota State Bar and the Central District of California Standing Committee on Discipline in Ingenuity 13 LLC v. Doe, No. 2:12-cv-8333-ODW(JCx) (C.D. Cal. May 6, 2013) (Order Imposing Sanctions). See In re Hansmeier, No. 13-80114.

Because Hansmeier’s application for admission to the court’s bar cannot be approved at this time, he cannot represent parties in this appeal. See Fed. R. App. P. 46(a); 9th Cir. R. 46-1.2. Accordingly, within 14 days after the filing of this order, Hansmeier shall withdraw from this case. Hansmeier’s notice of withdrawal shall contain proof that he has informed Browne that Hansmeier cannot represent him in this court and that Browne may obtain new counsel or represent himself. Hansmeier’s notice of withdrawal shall also contain contact information for Browne unless a notice of substitution of counsel has been filed by the time Hansmeier files his notice of withdrawal.

Failure timely to comply with this order may result in sanctions.

In other words: no, Paul, you can't have admission to the Ninth Circuit until this is cleared up, and we won't let you represent a client before us in the interim.

Actions have consequences.

(Thanks to a tipster for word of this order)

Various journalists are claiming they have seen a video of Toronto Mayor Rob Ford smoking crack.

This led to the most darling legal threat ever from a lawyer named Dennis Morris — who has represented Ford for some time — to Gawker:

Update: We've received an email from Dennis Morris, a gentleman with a hotmail.com email address purporting to be Ford's attorney. Here is the message. We haven't corrected its formatting.

Greetings;I am a lawyer,and have been contacted by Mayor Ford's office in reference to your indicating you will post a photo of Mayor Ford smoking crack cocaine. Mayor Ford denies such took place,and if such posting occurs,it is false and defamatory,and you will be held legally accountable.In reference to the photo,you wish to publish, Mayor Ford has his photo taken daily,sometimes with others.

If the person you mention is now deceased,it is sad,regardless of his alleged background.

Please govern yourself accordingly.

Dennis Morris.

This is delightful, like that video of the kitten freaking out when it sees a lizard.

First, nobody ever governed themselves accordingly based on a threat from a hotmail account. Second, are you using some sort of comma-based operating system? Third, what the fuck are you talking about?

This sets a high bar.

I'm in trial preparation mode, so this will be brief.

A publisher in India called OMICS Publishing Group has threatened to sue a blogger named Jeffrey Beal, who runs a blog called Scholarly Open Access. Beal critiques open-access publishing venues, and and ran a post asserting that OMICS engages in spamming and bait-and-switch. OMICS' threat would be mundane, except that its lawyer, Ashok Ram Kumar of the Indian firm IP Markets, has chosen to be so very ridiculous. He's threatening to sue for $1 billion, and to seek criminal penalties in India.

In India, Section 66A of the Information Technology Act makes it illegal to use a computer to publish "any information that is grossly offensive or has menacing character" or to publish false information. The punishment can be as much as three years in prison.

Lawyer, please.

Mr. Beal has little to fear from civil or criminal proceedings in India unless he wants to travel there.

First, if OMICS gets a civil judgment against him from India, they won't be able to enforce it here. The SPEECH Act prohibits any federal or state court in the United States from recognizing or enforcing a foreign judgment for defamation unless (1) the judgment creditor can prove that the foreign court offers equivalent protections for free speech as the defendant would have enjoyed in United States courts under the First Amendment, or (2) the judgment creditor can prove he or she would have prevailed even under the stricter standards in the United States.

Second, if OMICS seeks criminal charges against Mr. Beall in India, they won't be able to extradite him there. Like most extradition treaties, the treaty between the United States and India requires dual criminality — that is, that the offense is a crime in both countries. Hurting fee-fees isn't a crime in the United States. Moreover, under these circumstances, the chance that the U.S. Departments of State or Justice would cooperate with extradition requests is effectively zero.

So. OMICS can sue in the United States. If they do so, they'll have to satisfy their burden under U.S. law — for instance, by showing that Mr. Beall made provably false statements of fact. Attorney Kumar's bluster does not encourage confidence that they will be able to do so:

The rambling, six-page letter argues that Mr. Beall's blog is "ridiculous, baseless, impertinent," and "smacks of literal unprofessionalism and arrogance." The letter also accuses Mr. Beall of racial discrimination and attempting to "strangle the culture of open access publications."

"All the allegation that you have mentioned in your blog are nothing more than fantastic figment of your imagination by you and the purpose of writing this blog seems to be a deliberate attempt to defame our client," the letter reads. "Our client perceive the blog as mindless rattle of a incoherent person and please be assured that our client has taken a very serious note of the language, tone, and tenure adopted by you as well as the criminal acts of putting the same on the Internet."

Let us know how that works out for you, Mr. Kumar. Remember: you can't say "all the publishing credibility of COMIC SANS" without OMICS.

Remember Joseph Rakofsky? He's the brand-new lawyer who thought it was prudent and appropriate to attempt, as his first trial, the defense of a man accused of murder. Havoc ensued. A federal judge granted Rakofsky's request to withdraw, which coincided with the defendant's request for a new lawyer, and granted a mistrial. In doing so the judge said that in the alternative he would have granted a new trial based on Rakofsky's incompetence:

I must say that even when I acquired [sic -- probably "inquired of"] Mr. Deaner [the defendant], I — as to whether or not, when the Court found out through opening, at least near end of the opening statement, which went on at some length for over an hour, that Mr. Rakofsky had never tried a case before. And, quite frankly, it was evident, in portions of the trial that I saw, that Mr. Rakofsky — put it this way: I was astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.

It appeared to the Court that there were theories out there defense theories out there, but the inability to execute those theories. It was apparent to Court that there was a — not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to t detriment of Mr. Deaner. And had there been — If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110.

So I am going to grant Mr. Deaner's request for new counsel. I believe both – it is a choice that he has knowingly and intelligently made and he understood that it's a waiver of his rights. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable perrson could expect in a murder trial.

And later in that hearing . . .

And I think that the – As I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment.

This was widely reported, resulting in Rakofsky suing a ridiculous array of news outlets and lawbloggers, and stubbornly pursuing those claims in what became known as "Rakofsky versus the Internet."

Last week he lost — a judge granted motions to dismiss his case. That represented two major victories last week for Marc Randazza, who not only represented many lawbloggers in Rakofsky's case, but also crushed infamous copyright troll Righthaven on appeal. This will not make him any easier to live with.

Rakofsky's lead argument was that he was defamed because his detractors reported that a judge had declared a mistrial based on his incompetence, when in fact the judge had declared a mistrial based on the defendant's request and had only said that in the alternative he would have granted a mistrial based on Rakofsky's incompetence. The correct rejection of this argument is a good example of the substantial truth doctrine, also known as the "gist" or "sting of it" doctrine — the rule that says that a statement isn't defamatory if the main insulting thrust of it is true. So, if you accuse me of molesting squirrels in a public park, and I sue you for defamation on the grounds that my companion was a chipmunk and I was in the storm drain adjacent to the park, my defamation suit against you should not survive. (Unless, I suppose, we live in a community where squirrels are held in high esteem but chipmunks are generally despised.) Here, it was patently ridiculous for Rakofksy to maintain that the "mistrial resulting from incompetence" story was meaningfully misleading or false. The trial judge was brutally frank in his evaluation of Rakofsky's ability, and trial judges don't just go around letting defendants change lawyers mid-trial for no reason.

There are a few lessons to learn from this regrettable affair.

1. Our legal system is so broken that it can take years to resolve even the most patently vexatious, harassing, and incompetently prosecuted lawsuits like this one.

2. Rakofsky doubled down. Had he slunk away after his grave error in judgment, giving thanks that his rashness did not lead to someone being convicted, he might have learned the trade, become a competent lawyer, and overcome a brief flurry of bad publicity. Instead, he chose to file a vexatious lawsuit. Now he belongs to the ages. He will never, in the half a century he has left to him, live this down.

3. Yielding to censorious thuggery like Rakofsky's is harmful to your reputation. Cowardly and unprincipled University of St. Thomas School of Law, I'm looking at you. You yielded to a frivolous suit and taught your students and alumni a terrible lesson about being a lawyer and a citizen. You encouraged vexatious and speech-chilling litigation. Let your cringing suckitude be proclaimed throughout the land.

4. Judge Wright's photon torpedo salvo notwithstanding, most judges are reluctant to award sanctions even against conduct that richly deserves it. Here the judge declined to award sanctions against Rakofksy. I'm inclined to agree with Scott that Rakofsky's youth, inexperience, and nationwide humiliation probably stayed the judge's sanctioning hand.

5. If you want the law to be an instrument of self-actualization, start a blog. Law practice — the profession of providing services to clients who need you — is not your personal voyage of self-discovery and empowerment. If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody's reminding us that you have an obligation to know what you're doing before you accept the client. Somebody should.

All of Popehat's Prenda coverage is collected here.

When last we left the Prenda Law team, it was reeling from a devastating sanctions order and referral for criminal investigation. Now, as predicted, defense attorneys across the country are filing that order in cases brought on behalf of Prenda Law clients.

This has already led to one comical result.

You may remember that Attorney Jacques Nazaire, representing Prenda Law entity AF Holdings in Georgia, filed an angry and rather bizarre opposition to a defendant's motion for sanctions there. Now, in response to that defendant filing Judge Wright's order — which is what Judge Wright clearly contemplated, and which involves informing the Georgia federal court of an order that is patently relevant to the proceedings — Jacques Nazaire has doubled down and flipped out.

In his objections to defendant Patel's filing of Judge Wright's order about Prenda and AF Holdings, Nazaire argues that the filing is late and not authorized by the local rules, because it is effectively a "sur-reply" – that is, a reply to a reply. That's what just about any lawyer would say; it's within the realm of reason.

But then:

9. While this Court may or may not agree with some of the issues presented in
the California case, unbeknownst to the defendant, the California case will not necessarily become a mandate on this Court. It is solely within the discretion of this Court to follow or not follow the decisions made in the California case.

10. The defendant should realize that California has different laws than
Georgia, a different Governor than Georgia; a different legislative body than Georgia, different business needs than Georgia and different views than Georgia and as such all of its decisions cannot serve as a mandate for Georgia.

11. For example the California Courts have legalized gay marriage. Perry v.
Schwarzenegger 704 F.Supp.2d 921 (N.D. Cal., 2010);Certified question, 628 F.3d 1191 (9th. Cir.); Answered 52 Cal.4th 1116 (2011) Affirmed, 671 F.3d 1052 (9th Cir.) Such a decision cannot serve as a mandate on Georgia Courts to legalize gay marriage as well.

Sure, Nazaire is trying to make a point that the decisions of a United States District Judge in one state do not dictate the decisions of a United States District Judge in another state. But he's doing it in a hilariously silly and inflammatory way. Moreover, the core argument is misleading: both cases are copyright cases premised in federal law, and Judge Wright's decision was premised in federal law. This isn't a case about California or Georgia state law.

Nazaire then proceeds to start throwing Prenda principals under the now battered and flat-tired bus, suggesting he shouldn't be sanctioned:

19. Defendant also argues that plaintiff’s counsel should have made reasonable inquiry of the signature. Prior to filing the document, the undersigned contacted Prenda Law to find out whether or not Mr. Cooper would be available to testify at trial but was advised that they could not locate Mr. Cooper. The undersigned was advised that Mark Lutz and Peter Hansmeier would be available to testify as witnesses. Had the undersigned realized that the Electronic Frontier Foundation was hanging with Mr. Cooper, he would have been able to track down Mr. Cooper and questioned him about the documents. It turns out that Mr. Cooper was a caretaker of one of the properties of a Prenda Law member and had left said property in August, 2012.

20. Therefore, even if the undersigned had placed a knife to the throats of each of Prenda’s members, none would have been able to give him Mr. Cooper’s contact information at the time on November 5, 2012 when Plaintiff commenced its law suit. It is certainly not the first time a company has lost contact with an agent (or alleged agent as stated).

I'm going to give Mr. Nazaire Internet Points for responding to Star Trek references with a "Hangin' With Mr. Cooper" reference that is far more subtle.

Nazaire is also infuriated that his opposing counsel submitted one of his emails:

32. Additionally, an email containing information that was sent by the undersigned, in strict confidence, to Mr. Chintella was presented as evidence in that California case by Mr. Chintella. Chintella went behind plaintiff’s counsel’s back without any notification and submitted the email contents as evidence in order to influence the California case; the same case that now he presents to this Court as a mandate; the same Georgia case from which he intends to profit.

Yeah, here's the thing: if you write something to opposing counsel, especially in a case like this, you should expect it can get filed in court if it's relevant.

Nazaire's filing is furious and more than a little manic.

Is this real life?

Hat tip to Fight Copyright Trolls, via Twitter.

Nakoula Basseley Nakoula is in federal prison. He's scheduled to remain there until September. He's held under the name "Nakoula Basseley Nakoula," not as "Sam Bacile" (the name he used make the anti-Islamic film "the Innocence of Muslims,") nor under the name "Mark Bassely Youssef" (which he now claims is his current correct name, notwithstanding that he pleaded guilty to a federal crime under the Nakoula name).

Why is he in prison? It depends on who's talking.

To hear some people talk, he's in prison because he made an anti-Islamic movie, because the Obama Administration is eager to cover up the root causes of the Benghazi catastrophe, and because the Obama Administration wants to appease censorious Islamists. Some people merely imply this with headlines: "The guy who made “Innocence of Muslims” is still in jail, and we still don’t know who attacked Benghazi" Some people, like National Review's Rich Lowry, come right out and say it, asserting that Nakoula would not have been arrested and charged with a supervised release revocation but for his speech:

He is not going to win any good citizenship awards and violated the terms of his probation by using an alias (something Nakoula admits).

A violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards. Not for Nakoula.

This wasn’t a case of nailing Al Capone on tax evasion. As Nina Shea of the Hudson Institute points out, Al Capone’s underlying offense was racketeering and gangland killings. Nakoula Basseley Nakoula’s underlying offense wasn’t an underlying offense. He exercised his First Amendment rights.

Some call him a political prisoner.

These people all have something in common. They've never prosecuted a supervised release revocation in federal court. They've never defended someone accused of violating supervised release in federal court. They've never worked as a federal probation officer or filed a petition to revoke a sueprvisee's release. They've never worked as a federal judge and approved or denied such a petition, or presided over such a hearing. They've never seen a supervised release revocation hearing. Moreover, I'd wager a substantial amount of money that before they opined about the proceedings against Nakoula they didn't talk to anyone who had ever done any of these things, or anyone reasonably well informed about how they are done.

I've observed, and participated in, federal supervised release revocation proceedings since 1995. In writing about Nakoula I've drawn not only on that experience but on the actual documents from his case and on the law. My premise has been this: anyone on supervised release for a federal fraud conviction and owing more than $700,000 in restitution would face supervised release revocation if the Probation Office discovered that they were using aliases, engaging in unreported financial transactions, and using computers in those transactions, all in violation of their terms of release. Most federal judges would issue arrest warrants, not summonses, and most federal judges would order jail time to such a person if they found he had obtained and used a false driver's license and concealed transactions from the Probation Officer. Rich Lowry's claim that "[a] violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards" is quite frankly pulled straight out of his ass. Supervisees are routinely arrested rather than summoned, particularly when there are indications they might be a flight risk — like using a false identity. Supervisees are routinely returned to prison for offenses that would never be prosecuted federally as separate crimes.

Is Nakoula in federal prison because he made the "Innocence of Muslims" video? Superficially, perhaps, in the sense that his behavior may have escaped detection if he hadn't become famous. It's even possible that someone in the Obama Administration tipped off — or pressured — the Probation Office about his conduct. (If that's what happened, there ought to be a Congressional investigation.) But Nakoula's conduct is the sort that would absolutely be pursued if detected by his Probation Office and would routinely result in a revocation of supervised release and a return to federal prison. People saying otherwise don't know what they are talking about or don't care, or both.

I support a vigorous Congressional inquiry into the attack at Benghazi. The most charitable interpretations of the inquiry to date raise grave concerns about the honesty and decency of Obama Administration officials. I support asking hard questions about whether anyone in the administration contacted the U.S. Probation Office in Los Angeles about Nakoula. But this inquiry doesn't require, and shouldn't encourage, lying about the law. We should absolutely fight, to our last breath, pressure to yield to unprincipled "hate speech" and "anti-blasphemy" norms of other countries. But the cause of freedom of expression is not advanced by cynical and dishonest partisan bullshit.

Edited to add:

Mr. Baldwin, you're completely awesome. But my days of taking you serious politically are certainly coming to a middle.

This will be a familiar story to anyone who has ever represented a criminal defendant famous enough to make the news.

You client is convicted at trial, or pleads guilty. You work to put together a convincing presentation for sentencing that will humanize your client — help the judge see him (or her) as a human being, as someone whose offense is only one part of a larger life, as someone who has done good things as well as this bad thing. You ask friends and colleagues to write letters in support of your client. If your client is like most people, his life has been a mix of good and bad; some people admire him for some of the things he's done, and he's treated some people decently. Your client's friends and colleagues write letters in support, helping put his actions in the context of his whole life. Because they are human, their memories of your client are emotional and idiosyncratic. In their letters, they tell stories not only of the big things (support for family and friends, charitable work, dedication to the job) but the small, silly things that tend to touch us as people. You file the letters as part of your sentencing brief.

Then the media reads the sentencing brief, picks out one of the small and inconsequential things mentioned by a supporter, and runs it as the sensational headline, suggesting that it is the entire premise of your sentencing position.

Today's example: disgraced former Congressman Jesse Jackson, Jr.

Jackson, a deeply flawed and troubled man, resigned and pleaded guilty to a federal crime for misuse of campaign funds. It's frankly ridiculous he was reelected, and he clearly doesn't belong in Congress, and by his own admissions he abused his position and broke the law, and must face the consequences.

But now he's facing the federal criminal justice system, and his lawyers are trying to show the judge the whole story of who Jesse Jackson Jr. is. They've presented evidence of his family life, his work in Congress, his mental problems, his whole life. They've submitted letters from people who know and like him talking about dozens of topics.

What topic gets play?

A single colleague — Rep. Marcia Fudge (D-OH) — mentioned that he was an enthusiastic participant at karaoke nights. She did so in passing in the context of praising his life and work. Suddenly, though, that silly detail is the story: the media is framing it as "defense seeks lower sentence for karaoke."

Talking Points Memo: Congresswoman Wants Jackson’s ‘Karaoke Nights’ Considered In Sentencing

Huffington Post: Jesse Jackson Jr., Rep. Marcia Fudge Tells Judge, Is 'Charming' Karaoke Star Who Deserves Break

Chicago Tribune: Ohio lawmaker urges mercy for Jackson Jr., cites karaoke skills

Los Angeles Times: Ohio lawmaker urges mercy for Jackson Jr., cites karaoke skills

Notice that this is not just a matter of media political bias. Nominally "progressive" websites, and papers with a liberal sensibility, reliably go straight for the karaoke headline when talking about a fallen Democratic Congressman. Context doesn't sell; silly bits ripped from context sell.

Insipid sensationalism is an old story. It was old in 1979 when the media lied to the public about "The Twinkie Defense" in Dan White's trial for murdering Milk and Moscone.

Insipid sensationalism is what sells. Insipid sensationalism is why we have, too often, journalists who care more about maintaining relationships with law enforcement than questioning law enforcement. Insipid sensationalism is why we get misleading or incomplete reporting about criminal justice, little attention to horrifying problems in the system, and a surfeit of detached amusement where there should be outrage.

Some day soon one of the journalists who wrote one of the karaoke stories above will try to be taken seriously writing something serious and frowny about criminal justice. Please join me in inviting them cordially to shut the fuck up.

Mississippi Supreme Court Presiding Justice Michael K. Randolph wanted to speak his mind, and he wanted to speak his mind right the hell now, in the first medium available to him.

As it turned out, that was not in a letter to the editor or a tweet or a LiveJournal post or in a screed made up of letters ill-cut from discarded magazines. It was in an order stopping the State of Mississippi — temporarily at least — from killing Willy Manning.

Willy Manning came so close to death he could smell the alcohol swab. But finally — with the Federal Bureau of Investigation questioning the reliability of its own forensic analysis and testimony in the case, with other elements of the case plagued by doubt, and with untested DNA samples available, the Mississippi Supreme Court was moved to stay his execution pending further proceedings, which will probably include the DNA tests he has been fighting for.

Presiding Justice Michael K. Randolph, by contrast, was moved to use his dissent from the stay to tell America what he thinks of the FBI. In addition to saying all of Manning's arguments should have been raised before — a familiar and unremarkable argument — and apparently having no other outlet, he let fly with this:

The letter also states that the Department of Justice is "assist[ing] [the Innocence Project and the National Association of Criminal Defense Lawyers] in their evaluations." "The Innocence Project supports a moratorium on capital punishment." The "NACDL has been an outspoken critic of the death penalty system. Of critical concern is the language contained in the first FBI report stating that, "[g]iven the abbreviated time frame for review, the FBI requests the Innocence Project (IP) to advise as to whether or not they agree with the FBI's conclusions as soon as possible." Although the connectivity and expediency by which this review was accomplished is mind boggling, I should not be surprised, given that the families of the victims of the clandestine "Fast and Furious" gun running operation can't get the Department of Justice to identify the decision makers (whose actions resulted in the death of a border agent and many others) after years of inquiry, and that this is the same Department of Justice that grants and enforces Miranda warnings to foreign enemy combatants." [emphasis in original]

THANKS, OBAMA!

Mississippi has chosen this man to help decide whether inmates should live or die or spend the rest of their lives in dank holes. This should not cause you any concern, or weaken your faith in our criminal justice system. I'm sure his judgment is sound, his temperament ideal, and all of his faculties equal to the task.

Hat tip to Brian Tannebaum.

Years ago, my aunt found a picture of my grandfather's Harvard baseball team.

This picture is probably from 1937 or 1938. That's my grandfather, Paul K. Doyle, in the middle row on the far left. I look a bit like him; I got the Doyle nose and lip.

Recently my aunt digitized the picture, and here it is.

I've started to research the team. I wrote to the Harvard Archives to see if they have a roster so I can put names to faces. I wonder — what happened to these young men? How many went to war like my grandfather? How many didn't come back? How many yet live? How many of us are walking about, descended from these men and trying to live by their example?

I'll look into it, and write it up.

Edit: as usual, our readers are awesome. Grifter points out the guy in the middle is Tony Lupien.

Scott Bloch used to be a deputy director to the Department of Justice's Task Force for Faith-based and Community Initiatives under President George W. Bush and a Special Counsel at the United States Office of Special Counsel. Now he's a defendant in a federal criminal case, and has pleaded guilty to a misdemeanor for approving a "seven level wipe" on certain Office of Special Counsel computers, and now faces sentencing. This represented a milder charge than ones the government previously pursued: the feds charged him initially with contempt of Congress but abandoned that charge after Bloch was allowed to withdraw a guilty plea to it.

In addition to all that, it appears that Scott Bloch is a censorious thug.

Empty Wheel — which has been following Bloch's prosecution closely — has a post describing how Bloch has threatened bloggers writing about his case. Empty Wheel attaches and quotes a letter on Scott Bloch's own law firm letterhead. It includes the following language:

I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer and you are not commenting on any public matters that are current. The prior legal defense fund is defunct and has not been active for over two years. Your demeaning and personal attacks impute to me qualities that tend to injure me in my business of representing contractors. Your website is dedicate [sic] to them and therefore you are targeting my business in Washington, D.C. intentionally, and my residence in Virginia, from where I draw some of my clients.

If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages. As long as the article remains on your website, you are publishing it. In addition, you are publishing it in various fora, including in Virginia and Washington D.C. where I represent employees and federal employees [sic] Continuing publication also subjects you to Virginia jurisdiction as long as the article remains on the web. I will institute an action in Virginia and in Washington D.C. against you for defamation and actual malice, together with damages and punitive damages.1 I will also seek damages for civil conspiracy to harm my business, and Virginia courts and juries have proved to be very protective of one’s business reputation when gratuitously harmed by publications. If I determine through discovery that you have worked with others to do this, I will join them as well. (emphasis added)

Were it not a vexatious attempt to chill free speech, Bloch's letter would be comical because it is so surpassingly ridiculous. First, Bloch does not specify which specific statements in the blog posts are false and defamatory. As I often say, vagueness in a defamation threat is the hallmark of meritless thuggery. Second, the assertion that Bloch's federal case — the prosecution of a former Department of Justice and Office of Special Counsel lawyer — is not a "public mater" that is "current" is freakishly frivolous. Third, the demand that bloggers remove all materials — not just specified allegedly false statements — is legally unsupportable and a reliable tell of censorious bullying, not merit. Fourth, the statement "As long as the article remains on your website, you are publishing it" is at best a highly questionable assertion of law. Virginia will probably follow the Single Publication Rule, and the District of Columbia definitely follows it; that rule provides that the statute of limitations for a defamation suit begins to run when a statement is first published, even if it remains on the internet thereafter.

Bloch's letter has all of the signs of bullying and none of the signs of truth. Empty Wheel notes that he has not threatened a larger blogger with a wider audience, but smaller blogs — perhaps ones more easily cowed.

I hope that someone finds a way to put this threat before the judge in Bloch's case to consider when he is sentenced.

All of Popehat's Prenda coverage is collected here.

Watchers of the Prenda Law saga have been waiting for United States District Judge Otis D. Wright II to issue an order in the wake of his apocalyptic hearing on proposed sanctions against Prenda Law, its putative client entities, and its lawyers. During that wait, doubt has set in. Could Judge Wright's order, after all this drama, possibly live up to expectations? Could any dry memorandum capture the jaw-dropping antics that have come before?

Yeeeeop.

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