Browsing the archives for the Effluvia category.


On Dying

Effluvia

My father-in-law passed away this weekend after a long struggle with Alzheimer's when his body (finally, one might say) caught up to his mind. Though I couldn't go to join my wife's family at his bedside, my wife did. She's a better writer than I am, so I'll get out of the way.

I used to think that dying of old age was like falling asleep. You lose all your strength, close your eyes, wait a while, then… done. It's not like that at all. Just like the cliches of birth — where moms are rushed to the hospital upon the first signs of labor and babies come out resembling perfectly formed 3 month olds — what we see and tell ourselves about death has little connection to reality.

My parents died of different causes. My mom, from cancer or chemo (as with any cancer patient, it's impossible to say which), my dad from Alzheimer's. But what struck me when I first saw my dad after he slipped into unconsciousness was how closely he resembled my mom on her last day: his body was bony and colorless; mouth agape and twisted; breaths shallow and forced. You could hear him gasp over the oxygen tank, which is saying something. It was noisy, with plodding, arrhymic but no less robotic bursts. After my mom passed and they took the oxygen mask off, we could see that her mouth was caked with blood. She looked like a skeleton. I didn't recognize her.

One of the hospice workers the night I arrived told us he bet Dad would die within an hour, maybe two. (None of the other hospice workers, who were unbelievably kind, would have said anything nearly so blunt.) Everyone was offended but I secretly appreciated his candor. Having been through this last year with my mom I wasn't sure how long I could hold out watching my father's tortured breaths. My brothers, their wives, and I stayed all through the night holding my dad's hands, watching him breathe, and waiting for him to die.

No one would ever admit it but you end up hoping that each violent contraction will be the last. That this excruciating fight will end. After it's over, we cover this lie with another lie, telling people that he died peacefully so that we don't have to talk about it. But when one suffers from Alzheimer's, "peacefully" means merely "unconscious." I don't have to worry about coming to visit my dad at his nursing home and finding him slumped over a wheelchair or soaking in his urine, his skin so dry it's cracked and bleeding in places.

The idea that anyone would have to go through this for a child is unthinkable. But I couldn't help but think of my son during this process: if losing a parent is so difficult, what must it be like to lose a child? Will my son one day have to go through this for my husband and I? He has no siblings. Would he be alone? Would I want to have him staring at me, this horrific image seared in his brain? My instinct is to spare us all from it, securing some kind of "kill pill" to take when the time comes. I took an epidural when my son was born and have no romance for pure pain or suffering. Is a kill pill similar? Is it cowardly? Or consumerist?

The truth is that if I live as long as my parents with my family intact, I'll be lucky if I need to answer this question.

25 Comments

Time for the Popehat Signal: Missouri Car Dealership Sues Over Criticism

Effluvia

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

It's time for the Popehat Signal, by which we seek pro bono assistance in defending the First Amendment. I learned of this case through Paul Alan Levy of Public Citizen, whose important work in support of free speech I've often praised here.

Dwayne Cooney took his car to Jim Butler Chevrolet of Fenton, Missouri. When most of us leave our cars to be serviced, we're left to guess exactly what the mechanics did to it. But Cooney, who works in security, has a dashboard camera, which he left on. He believed that the footage showed that Jim Butler Chevrolet overbilled and charged for work they did not perform. He posted the footage on YouTube.

Jim Butler Chevrolet claims that Cooney is wrong and has deceitfully edited the video, and that the video does not show all of the work that was actually done. They could have responded to Cooney's speech with more speech, but they took the censorious route and sued for defamation, even going as far as to seek an injunction to take Cooney's videos down. Incredibly, a judge issued a temporary restraining order, a plainly unconstitutional prior restraint of speech.

Missouri attorney Martin J. Buckley, with assistance from Paul Alan Levy of Public Citizen, convinced the judge to dissolve the temporary restraining order. But now Cooley's homeowner's insurance is refusing to cover his defense. The Jim Butler Chevrolet dealership is suing for damages and still seeking to have Cooley's criticism taken down. Cooley needs help. If you are an attorney in Missouri, please consider stepping up to assist him in defending this suit.

You can find Cooley's video here. Paul Alan Levy has the pleadings here. The dealership maintains that Cooley's video was misleading. Without prejudging that claim, free speech disputes are best resolved with competent counsel on both sides. Moreover, I am not inclined to believe a plaintiff who seeks a patently unconstitutional injunction against speech; rather, I'm inclined to view them as someone willing to abuse the legal system to silence criticism.

60 Comments

Anti-SLAPP Victory In Oregon: Anti-Telemarketing Blog Wins Big With Pro Bono Help

Effluvia

Here's a hard fact about free speech: vindicating it in American courts takes either money (and lots of it), or lawyers willing to provide pro bono help. Right is right, and law is law, but court is court — and winning in court generally requires competent representation, which is ruinously expensive for normal people. It's not fair, it's not right, but it's true.

Therefore the vitality of the First Amendment depends not just on the law, but on the service of lawyers like Troy Sexton of Motschenbacher & Blattner LLP in Portland, Oregon.

Last August I put up the Popehat Signal seeking pro bono help for an anti-telemarketing blogger who writes at the Telecom Compliance News Press. The blogger was sued by an attorney named F. Antone Accuardi, who claimed that the blog falsely associated him with companies involved with robocalling and other telemarketing violations.

Troy Sexton stepped up. He filed a motion under Oregon's anti-SLAPP statute in response to Accuardi's complaint, and this March, he prevailed. Accuardi's complaint is here, Sexton's anti-SLAPP motion is here, and the Magistrate Judge's lengthy and detailed order granting the anti-SLAPP motion is here. Sexton's work was absolutely top-notch. The main basis of the judge's order is that the blog's comments of Accuardi were statements of opinion based on disclosed and linked facts about the companies and Accuardi's connections to them, and therefore protected by the First Amendment. It's a very thorough opinion and worth a read if you're interested in First Amendment and anti-SLAPP issues.

This is a tremendous victory for the blog, and for Troy Sexton and his firm. Sexton has a motion for fees pending; though he stepped in pro bono, I hope that he winds up collecting at his full rate from Accuardi. I am more free, and so are you, because people like Troy Sexton are willing to step up and contribute their time and skill. Please join me in congratulating him.

10 Comments

Chilling Effect, Next Steps, Final Steps, Hope

Effluvia

Definition:

https://en.wikipedia.org/wiki/Open_society

open society
government in the open society is purported to be responsive and tolerant, and political mechanisms are said to be transparent and flexible.

Definition:

https://en.wikipedia.org/wiki/Chilling_effect

In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction.

Definition:

https://en.wikipedia.org/wiki/Culture_of_fear

Culture of fear is a term used by certain scholars, writers, journalists and politicians who believe that some in society incite fear in the general public to achieve political goals.

Definition:

https://en.wikipedia.org/wiki/Intimidation

Intimidation is intentional behavior that "would cause a person of ordinary sensibilities" fear of injury or harm.

Data:

http://warrantless.org/2014/03/snowden-search/

A new empirical research paper
I have coauthored with Professor Catherine Tucker of MIT-Sloan [ Clark note: originally at http://warrantless.org/wp-content/uploads/2014/03/Surveillance_Search.pdf ] examines the question of how Edward Snowden’s surveillance revelations have shifted the way people search for information on the Internet. We look at Google searches in the US and its top ten trading partners during 2013. We identify a roughly 5% drop in search volume on privacy-sensitive terms. In the US, UK and Canada, the countries in our data who were most involved with the surveillance controversy, search volume fell for search terms likely to get you in trouble with the government (“pipe bomb”, “anthrax” etc.), and for searches that were personally sensitive (“viagra”, “gender reassignment”, etc.). In France and Saudi Arabia, search volume fell only for the government-sensitive search terms. This paper, though at an early stage, provides the first systematic empirical evidence of a chilling effect on people’s search behaviors that is attributable to increased awareness of government surveillance. I will be presenting this paper at the Privacy Law Scholars’ Conference in DC in May, 2014. I would welcome comments at alex@warrantless.org.

Clark's editorial additions:

1) Police states are not boolean: A society can be more or less of a police state. The presence of newspapers and absence of death camps does not mean that there is not something of a police state.

2) It is not necessary for anyone to to desire or plan a police state for a police state to arise. Men of good intentions can honestly attempt to solve problems on the ground and in doing so end up worsen the overall picture.

3) When people feel that they can't look up entirely legal information in the 21st century equivalent of a book because they fear know that their government

and based on this knowledge "voluntarily" curtail their own legal behaviors, we have some noticeable degree of a police state.

Clark's suggestion:

1) Do go read the Marthew's paper. I approach all social science papers with an attitude of skepticism…and in this case I was surprised (pleasantly so) by table 6, where statistical confidence is specified.

2) Add warrantless.org to your RSS reader and follow @rebelcinder on Twitter.

3) Put aside existing models of how and why the US government works and approach it as a forensic anthropology question:

  • Note that the NSA, the DoD, and the State Department are regulated by the government, but regulation does not work they way one might expect.
  • Note that no matter which party seems to win an election, the bureaucracy always stays in place, and has its own agenda.
  • Note that elections do not create moral government or consent.
  • Note that the DNA of the government is not just the Constitution, but the extended phenotype of defense oriented firms, police departments, bureaucrats, dependents, and more.
  • Ask yourself if people of good will tried to reform the government in 1980, and 1990, and 200, and 2010, and it has gotten larger and more intrustive every year, what effect people of good will trying to reform the government in 2014 will have.

4)Withdraw your consent from the system.

  • Note that just because party A is terrible does not mean that party B is any better, and refuse to ever say "this will be better after the next election" or "we just need the right guy in office".
  • Note that just because because a Constitution exists and a Supreme Court says that it will enforce the Constitution does not mean that it actually does so.
  • Note that this is not "your" government but "the" government, which you can choose to give loyalty to or not, as you see fit.
  • Note that the government can do whatever it wants to your body, because it has more men and more guns, but it can not force you to acknowledge its moral legitimacy.

The system is unreformable. It has more guns than the good guys (at least now). But if discontent grows and enough people start to stop talking about "our government" and start talking "your [ illegitimate ] government", at some point even the hard men look out at the swelling crowd, realize that they are on the wrong side of history, and go home.

Or at least we can hope.

87 Comments

Well, I AM Proud, But . . .

Effluvia

Sometimes that personalized marketing on Facebook doesn't work out quite right.

Ummmmmm

20 Comments

Reporting In From The Liberty Forum

Effluvia

I'm in New Hampshire for the Liberty Forum. This afternoon I'm giving a talk on how legal threats from cops and citizens chill online free speech, and what we can do about it. I am obsessively tweaking my Power Point, as is my bad habit, and thinking about which jokes work for my particular audience. ("Pro se is Latin for unmedicated and litigious" is probably not the right fit for this group.) Tomorrow I'm on a panel about dealing with the police when one encounters them non-socially.

It would be easy to write a post making fun of this convention, in the sense that it would be easy to write a post making fun of any convention. They are all similar: a few eccentrically dressed people stand out from the rest, a few people argue too loudly and badly, a few people are always a little too scarily involved in the subject matter. That was true for the fantasy gaming conventions I attended in the early 1980s and it's true of mainstream political conventions and it's true of this.

A few minutes ago I very much enjoyed hearing Jesselyn Radack, ex-DoJ whistleblower and now attorney for whistleblowers, speak. This is what happened to her last week at Heathrow, and here is an old story about what DoJ tried to do to her. I particularly enjoyed the part about how the Department of Justice, having convinced her law firm to fire her, cooperated with her law firm in an effort to block her from getting unemployment benefits.

More tomorrow.

25 Comments

News-Reworder SlashGear Turns Expert Into Criminal Defendant

Effluvia

Dr. Nicholas Weaver is an expert on network security issues. The media frequently seeks him out for input on stories involving the intersection of criminal justice and computer security, like Silk Road and leak investigations. Fair disclosure: he's also an online friend and an expert on one of my cases.

SlashGear is an also-ran tech site that rewrites stories badly.

Case in point: SlashGear took this story from Krebs On Security about criminal charges against Bitcoin traders in Florida. Dr. Weaver was quoted as an expert in that story:

Nicholas Weaver, a researcher at the International Computer Science Institute (ICSI) and at the University of California, Berkeley and keen follower of Bitcoin-related news, said he is unaware of another case in which state law has been used against a Bitcoin vendor. According to Weaver, the Florida case is significant because localbitcoins.com is among the last remaining places that Americans can use to purchase Bitcoins anonymously.

“The biggest problem that Bitcoin faces is actually self-imposed, because it’s always hard to buy Bitcoins,” Weaver said. “The reason is that Bitcoin transactions are irreversible, and therefore any purchase of Bitcoins must be made with something irreversible — namely cash. And that means you either have to wait several days for the wire transfer or bank transfer to go through, or if you want to buy them quickly you pay with cash through a site like localbitcoins.com.”

But when Bittany Hillen penned an awkwardly-worded and uninformative summary of the story for SlashGear, she turned Dr. Weaver from a quoted expert to a criminal defendant:

Yesterday, Florida law enforcement announced the arrests and criminal charges against three individuals under anti-money laundering laws: Michell Abner Espinoza, Pascal Reid, and Nicholas Weaver.

Dr. Weaver captured a screenshot in case SlashGear tries to memory-hole this. He should feel happy he didn't give a quote about the Woody Allen case, I guess.

Dr. Weaver isn't the suing type. But, hypothetically, could he sue for defamation? Sure.

In California the elements of defamation — that is, the things that a defamation plaintiff must prove — are these:

publication of a statement of fact
that is false,
unprivileged,
has a natural tendency to injure or which causes "special damage," and
the defendant's fault in publishing the statement amounted to at least negligence.

Here, SlashGear and Hillen published a false statement of fact about Dr. Weaver — that he had been charged with a crime. The publication was unprivileged, meaning that it was not immunized from liability by statute (for instance, things you say as a witness in court, or in pleadings filed in court, are generally privileged from liability). Accusing some of being charged with a crime is the sort of thing that has a natural tendency to injure, which is why it is often categorizes as "libel per se" — which merely means that the plaintiff doesn't have to prove that he or she suffered damage to reputation, and gets at least nominal damages without such proof.1 Dr. Weaver probably couldn't prove actual or special damages to his reputation — it's doubtful that anyone gives a shit what a clumsy SlashGear rewrite says. But he could get at least nominal damages because of the nature of the accusation.

That leaves us with the question of fault. As I explained in the context of the Crystal Cox case, at least if the issue being discussed is a public one, a defamation claim always requires proof of some level of fault on the part of the defendant. The level of fault depends on whether the plaintiff is a mere private figure (in which case the plaintiff may only need to prove that the defendant got the story wrong out of negligence) or a public figure (in which case the plaintiff would need to prove actual malice, meaning knowledge that the story was false or reckless disregard to its truth or falsity.) There are complexities and gradations; people can be public figures for limited purposes.

Here, the transformation of Dr. Weaver from respected expert to criminal defendant is a result of an incompetent rewrite of a news story. That's at least negligence. If Dr. Weaver is treated as a private figure he would prevail. But since he's frequently quoted in the news on stories like this, he may well be treated as a limited purpose public figure in the context of coverage of network security issues in the news. So the question is probably whether an incompetent rewrite of a story rises to the level of reckless disregard of the truth as required by the actual malice standard. The answer is almost certainly not. "Reckless disregard" requires more than incompetence; it requires conscious disregard of doubt. Here there's no indication that anyone consciously regarded or disregarded anything.

So: Dr. Weaver probably can't prove the requisite fault against SlashGear and Hillen, even if he wanted to. They live to promote shitty rewrites another day. Fortunately for Dr. Weaver it's difficult to imagine anyone taking SlashGear seriously enough for their incompetence to hurt his reputation.

Remember: just because something is written in a "story" by a "journalist" on a well-trafficked website, that doesn't mean it's anything other than incompetent drivel.

Edited to add SlashGear corrected the story to remove the reference to Dr. Weaver as a defendant, but as of this writing has not offered any retraction or apology. Classy.

30 Comments

How Commonwealth’s Attorney Paul B. Ebert Touched People

Effluvia

Paul B. Ebert, Virginia's longest-serving prosecutor, was honored a couple of years ago.

A portrait of Ebert was unveiled at the event that will be hung near his office alongside those of his predecessors. The portrait was done by Wendell Powell Studio in Richmond.

The idea of a portrait came from the many people Ebert has known in his 43 years as a commonwealth’s attorney.

“We see all these nice, distinguished gentlemen hanging [on the walls] around the courthouse,” Prince William area lawyer William Stephens said. “It dawned on me” that Paul Ebert should be one of them. “He has touched so many people.”

Indeed he has.

Justin Wolfe, for instance.

Continue Reading »

95 Comments

Today's Talk On Convention Anti-Harassment Policies At FtBCon

Effluvia

As I announced previously, today I am giving an talk on Google Hangouts on convention anti-harassment policies and how they fit into American anti-harassment law. Some related links:

Here's the link to where the conference will be.

Here's a short quiz in preparation for the talk.

Here's a great resource about the recent history of calls for anti-harassment policies in the skeptic, open-source, and science fiction and fantasy communities.

Here's the Equal Employment Opportunity Commission's publications on discrimination issues.

I've written before about how complaints about harassment provoke disproportionate outrage and further harassment; those posts are here and here.

62 Comments

"Enter Big G's Command Center Through the Revolving Doors on K Street"

Effluvia

Via Ken on Twitter:

Genius. Sheer genius.

I love everything about this, right down to the fine print on the website: "All audio, visual, and textual contents on this site have been granted an intellectual monopoly by the powers vested in the G-force."

"One horse-laugh is worth ten thousand syllogisms. It is not only more effective; it is also vastly more intelligent." – H. L. Mencken

27 Comments

Cage Fight

Effluvia

dailymail.co.uk

The controversial billionaire Charles Saatchi told journalist Taki Theodoracopulos that his ex-wife 'always found you toe-curlingly vile' in a bizarre open letter to the magazine which has now resulted in the 77-year-old offering to take on Mr Saatchi in a cage fight.

Rumors that Taki Theodoracopulos has asked Texas lawyer Carl David Cedar to be his second at the cage match duel have not yet been confirmed as of press time.

13 Comments

Police interrogations: "I don't…" / "I would…" / "It's simple…"

Effluvia

In the comments to the previous post, many people were a bit confused by why an innocent man would falsely confess to a crime. Lots of advice and commentary appeared in the reader responses: "I don't…", "I would…", "It's simple…".

In my opinion all of these responses were utterly misguided…except for one guy who got it dead on right:

@Dick Taylor:

Don't talk to the police without a lawyer. Ever. Then it doesn't matter if they lie to you. Cases like this are more proof that if it's just you against the police, you will lose every time. After two days of interrogation in that kind of an environment, I doubt that he was processing anything well enough to defend his own interests. Nobody would.

Even aside from the general advice that one should never talk to the cops (a video well known to most of us here, but I was still happy that Doctor X presented another link), there's a specific bit in Dick Taylor's comment that deserves to be presented in a 70 point font made out of glowing red neon letters:

I doubt that he was processing anything well enough to defend his own interests

I have never been handcuffed, taken down to the police station, or put in a room with a one way mirror.

…but I was once, years ago, ruthlessly grilled by two cops on the sidewalk in a situation where I was not free to leave. I am a very strong willed individual who knew deep in my bones that I was right, they were wrong, and that I should not say anything to them. So, of course, I didn't say anything to them, and the whole thing resolved itself.

But the point I want to make is even a very strong willed individual who is mentally prepared for a confrontation with the cops and has rehearsed what he will (or rather, won't) say still experiences a level of psychological pressure that is hard to describe. This was in a neutral settings, in an encounter that lasted less than an hour, on an average day. I can not imagine the psychological pressure one would feel after 12 hours of interrogation, in a locked room far from home, while wearing handcuffs, after a family member had died.

Barracks lawyers asserting "I don't…", "I would…", "It's simple…", etc. do not, I suggest, have a feeling for what it feels like to actually be in the kinds of situations they are talking about.

I strongly recommend reading “Only the Guilty Would Confess to Crimes”
: Understanding the Mystery of False Confessions by Douglas L. Keene and Rita R. Handrich.

It's about 10,000 words, so it will take 10 to 15 minutes…but it's 10 to 15 minutes well spent.

90 Comments

Government Weighs Government Role in Coercing Confessions ( From Innocent Citizens )

Effluvia

The original headline is "Court Weighs Police Role in Coercing Confessions", but I like mine a bit better.

http://www.nytimes.com

detectives told Mr. Thomas repeatedly that the baby’s condition was an accident and that he would not be arrested. Several times they threatened to arrest his wife if he did not confess to abusing the baby, prompting him to say he would “take the rap.” Later they told him his son, who was already brain-dead, might die if he did not help doctors by describing how he hurt the boy.

Of course, the boy was already dead, and the detectives lied to the father, basically promising him that his son would live if he agreed to the fiction that he had done it, even if he hadn't.

After two days of interrogation, the father broke down, and agreed to the police lie, to save the life of his son and the freedom of his wife.

He is now serving a life sentence.

The judges were not with out sympathy. Oh, they had sympathy aplenty:

During arguments, several judges — among them Judge Lippman, Robert S. Smith and Eugene F. Pigott — expressed sympathy for Mr. Thomas’s contention that his confession was made under unfair pressure.

But sympathy only goes so far. There's precedent to worry about, and if innocent men have to go to jail to uphold precent, well, then, government employees understand the relative importance of these two things:

“We have precedent that says the police can use deception,” Judge Victoria A. Graffeo said. “What we are trying to figure out is when you enter this area of inappropriate pressure?”

“Don’t threaten to arrest people’s wives whom you know are innocent,” Mr. Frost answered.

“That’s a narrow rule,” Judge Pigott said.

Still, the judges are positively Solomonic compared to the prosecutor.

Ms. Egan… insisted the detectives had done nothing that would cast doubt on the veracity of Mr. Thomas’s statement.

62 Comments

Update: The Quantum of Recovery For Rape-and-Torture-By-Police In New Mexico Is $1.6 Million

Effluvia

Back in November I wrote about David Eckert of New Mexico. As you may recall, City of Deming police officers stopped Eckert for running a stop sign, and together with Hidalgo County Sheriff's Deputies concluded that there was probable cause to think that he was smuggling drugs in his anus. As I wrote back then, that conclusion was based on the following fanciful chain of supposition:

That his hands were shaking and he avoided eye contact during a traffic stop;

He refused to consent to a search of his person;

He stood erect with his legs together;

No drugs were found in his car or in a pat-down of him (police pat-downs for weapons often turn up drugs, which mysteriously feel like dangerous weapons when touched by police, or which are immediately identifiable as drugs when touched by police);

A drug dog (with no information given about the dog's training or qualifications or success rate) "alerted" to his car seat (though no drugs were found in his car); and

An unidentified Hidalgo County K-9 officer asserted, without any specificity, that Eckert had previously hidden drugs in his anus.

Based on those "facts," and with the approval of Deputy District Attorney Daniel Dougherty, the police sought and obtained a warrant to search Mr. Eckert's anus. The following rape and torture — and I use those words deliberately and advisedly — followed:

1. Eckert's abdominal area was x-rayed; no narcotics were found.

2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.

3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.

4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

7. Doctors then x-rayed Eckert again; no narcotics were found.

8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.

No. No narcotics were found.

Are there consequences to that sort of conduct? Sort of. Eckert has settled with the City of Deming, the County of Hidalgo, Officers Bobby Orosco and Robert Chavez, and Deputies David Arredondo, Patrick Green and Robert Rodriguez. He has agreed to dismiss his lawsuit against them. he will be paid $1.6 million — it's not clear how that is apportioned between the City and the County, but you can assume that New Mexico taxpayers, not the law enforcement officers who engaged in a conspiracy to commit torture and rape, will foot the bill.

Deputy District Attorney Daniel Dougherty has a motion to dismiss pending. He will probably win it. Prosecutorial immunity is most likely broad enough, under current law, to cover approving a transparently ridiculous warrant application seeking to torture and rape a man based on fluff. Nice work if you can get it and you are in to that sort of thing, I suppose.

Doctor Robert Wilcox of the Gila Medical Center — who played the "bring out the gimp" role in this rape and torture scenario — has also filed a motion to dismiss, which in part argues that he is entitled to immunity because he was following orders — the orders of the police and the judicially approved search warrant. We'll see how that works out for him.

The $1.6 million was offered and accepted quite swiftly. That's a substantial amount of money for a case not involving death or dismemberment, especially during times when local governments don't have a lot of money. It suggests to me that the City and County thought they had a terrible case. It makes me even more suspicious that the key "fact" of the warrant application — that some unspecified deputy told the affiant that Mr. Eckert had smuggled drugs in his anus at some unspecified time before — was knowingly fabricated by somebody in the chain.

This case sickened me. But I can't say that it surprised me. The only thing out of it that would surprise me is if any of the individual police officers or sheriff's deputies faced any genuine significant consequences arising from it.

Whether or not you agree with my legal criticism of the sufficiency of the warrant application, bear this in mind: because of the mindset promoted by the Great War on Drugs, these cops, this deputy DA, this judge, and this doctor all reached the same moral conclusion. Their moral conclusion was that because they posited that this man had drugs in his anus — necessarily the small amount that could fit there — it was necessary and appropriate and acceptable forcibly and repeatedly to probe his anus, forcibly to give him an enema, to x-ray him, to sedate him, and to perform a colonoscopy on him under sedation. That's the mindset of the Great War on Drugs. It's perverted and despicable. It's subhuman. Do you support it?

71 Comments

Roger Shuler Convicted of Resisting Arrest, Remains In Custody for Contempt of Prior Restraint Order

Effluvia

I've previously written about Roger Shuler, the Alabama blogger currently in jail for contempt of court based on his defiance of an injunction that is likely an unconstitutional prior restraint of speech. Though I think that Shuler's history shows him to be a vexatious litigant, and though I think his erratic and foolish behavior has contributed substantially to this situation, I find the injunction against him and his incarceration for violating it very troubling. I'm quoted on that point in last weekend's New York Times.

There are some developments of note.

Shuler Has Been Convicted of Resisting Arrest And Sentenced to 90 Days Imprisonment, Suspended

Roger Shuler was charged with "resisting arrest" (sometimes called "contempt of cop") based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resiting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson. I'm not an expert on Alabama criminal procedure, but my rough understanding is that misdemeanors like this are tried by bench trial in the "district courts" of Alabama, and can be appealed to the "circuit court" for a trial by jury, which is a strange way to run a railroad.2

Three things concern me about Shuler's bench trial.

First, he represented himself. It's not clear whether he refused appointed counsel (which he foolishly did before) or whether he was somehow deprived of one. I suspect he refused counsel, which is transcendentally idiotic and self-indulgent. He had a right to appointed counsel. Nothing in his history of pro se litigation suggests he was even minimally competent to defend himself.

Second, the judge denied Shuler a continuance to gather evidence, which Shuler requested because he had been in custody since October:

Jackson denied a request made by Shuler that the case be continued after he claimed that his incarceration prevented him from preparing his defense and obtaining certain discovery material, such as a video recording of the incident and copies of arrest warrants.

Now, representing yourself is likely to lead to this sort of result — you're not prepared for trial. But judges are supposed to take steps to protect the rights of pro se defendants. The arrest — and the alleged unlawful resisting of arrest — is less than three months old, and I find it highly dubious and suspicious that a judge would deny a continuance to give Shuler more time to seek discovery and prepare.

Third, it's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.

Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. That's what his wife argues now. Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.

The district judge imposed a suspended 90-day jail sentence, meaning Shuler is now incarcerated only on the contempt of court.

In short the coverage of the trial leaves me where I was before: questioning whether the Alabama court system is treating Shuler according to the rule of law, but also suspecting that Shuler is doing everything he can to undermine his own best interests.

Shuler Remains Incarcerated On The Contempt of Court Charges

Back in November, the Alabama court issued a permanent injunction against Roger Shuler forbidding him from saying certain things about the plaintiffs in his case and requiring him to remove certain posts from his blog. The court did so after a hearing that it characterized as a "permanent injunction hearing." As I explained back in November I believe that permanent injunction is a prior restraint in violation of the First Amendment; the cases permitting such prior restraint against defamation generally only do so after a full trial before the correct finder of fact (which should be a jury), not after some mere "hearing." There's nothing extraordinary about this case that should permit departure from that precedent. So unless Shuler somehow waived a trial by jury or consented to resolution of the defamation claim at a hearing — something that's not outside the realm of possibility given his erratic behavior — the injunction seems unlawful.

Yet Shuler remains in jail for contempt of court based on his refusal to comply with the injunction. How long can he stay there? That's complicated.

There are two types of contempt consequences: punitive and coercive. Punitive contempt sanctions punish contempt; coercive contempt consequences seek to force someone to do something. Here's how the Supreme Court described the difference, and the different requirements:

"Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). See In re Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self incrimination, right to proof beyond a reasonable doubt). For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U. S., at 199; see also Taylor v. Hayes, 418 U.S. 488, 495 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.3

Shuler's contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn't mean it is without limits. For instance, a court can't imprison you to coerce you do to something that's beyond your power. As the Supreme Court of Alabama said:

Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.

Here, Shuler argued that he couldn't take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot.

So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment "conceivably could have remained incarcerated indefinitely." In many American jurisdictions that's correct — indefinite coercive incarceration is a tool that has led to calls for reform. In that Alabama case — which involved a mother refusing to disclose the location of a son suspected of arson — the Supreme Court of Alabama suggested that a court should revisit the issue:

In cases such as this, after the contemnor has been incarcerated for a substantial length of time, the trial judge should bring the contemnor before him for another due process hearing in which he can reevaluate the factual basis of his first adjudication. If he is satisfied that his determination was correct, he should again incarcerate her. If he is of the opinion that she is telling the truth, of course, he should release her.

Hopefully the Alabama court will revisit Shuler's incarceration. At this point Shuler's options to get out of jail are to comply with the (probably unconstitutional) order or appeal it. Given Shuler's behavior in court, I'm skeptical that he will be able to mount a successful appeal. Telling the court that it's a joke and (incorrectly) that it lacks jurisdiction over you is generally not a recipe for appellate success.

We should be able to look critically both at Roger Shuler's behavior and of the system's treatment of him. Notwithstanding overly credulous coverage (like like Salon article that seems to accept Shuler's characterizations of his behavior uncritically and ignore the evidence of his actual behavior), Shuler remains his own worst enemy. His evasion of service, blogging about the same, and nutty-pro-se refusal to acknowledge the court all impede effective defense of his rights. But even nuts and cranks deserve due process of law; depriving them of it threatens to weaken everyone's rights. I'm troubled by how Shuler's civil and criminal cases were handled.

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