Note: Em is tired, so there will be no case of the week in this edition of Writs.
WW1: I wrote a cursory splainer about qualified immunity last week because the concept has received wide discussion in light of recent events. Some still insist it is necessary; others advocate its total abolition. Some just think maybe it needs some tweaking. I know your burning question here is what does Vox, more specifically, Ian Millhiser think?
WW2: It’s summer blockbuster time! I don’t mean at the movie theatre; I’m talking about SCOTUS, who tends to release some of its most anticipated decisions around this time of year. This year, we’re talking abortion, Trump financials, immigration, and LGBT employment discrimination, among others. H/T @four4thefire for the link.
WW3: Vengeful cops and prosecutors, or murderous defense attorney? The defense attorney claims his arrest and prosecution for murder-for-hire was a frame up job. Acquitted at trial, he has now filed a federal lawsuit against the city, the county, the prosecutors and the cops, who he says were angry at him due to his many court room victories. H/T @The_Bealzabubba for the story.
WW4: The beheading of a Romina Ashrafi, a 14 year old Iranian girl her father in a so-called “honor killing” has led to legislation outlawing the abuse of children. Just now. In the year 2020. Romina’s father was charged with her murder, but because he is her guardian, he faces just 10 years in prison. While the new law marks the first time harm to a child is recognized as a specific crime, it is unclear what the penalty for killings like Romina’s will be.
WW5: Prince Andrew says the DoJ’s reports of his lack of cooperation into the Jeffrey Epstein investigation are false; the DoJ says the Prince has refused their attempts to schedule an interview. Neither seem particularly interested in actually getting to the truth; the Prince has no intention of coming to the US to give a statement, and AG Barr has no intention of going to fetch him.
WW6: Digital trickery makes spotting fabricated evidence harder for litigators and judges, from photoshopping to fake or altered voice recordings. Not only can the use of fake evidence result in unjust judgments or verdicts, it can also offer a ready-made defense against authentic evidence: “Sure they have a recording of me confessing… but we all know recordings can be faked!”
WW7: Remember the lawyer/administrative law judge with the $67 million lawsuit over his misplaced pants? His law license has been suspended, citing his refusal to accept responsibility for his frivolous lawsuit or to even consider whether he had violated legal ethics. His handling of his own disciplinary suit was equally, umm, zealous.
WW8: The Fourth Circuit issued a new qualified immunity decision today, this one in favor of the family of the deceased:
[WW3] Wow, I don’t trust Frank Carson a lick based just on that Modesto Bee story. That’s not enough to send him to prison, but yikes.
Can we call, “the prosecutors are out to get me because they hate my many victories” the Trump Defense?Report
There’s too much nuance in that defense for the President.Report
WW6: Is there a link for this one? Is it in the mail?Report
Geez, you all are soooo demanding.
https://www.abajournal.com/web/article/courts-and-lawyers-struggle-with-growing-prevalence-of-deepfakesReport
So, Heinlein’s Fair Witnesses? Not “Video or it didn’t happen”, but “Trained human witness or it didn’t happen”? I was always a bit fond of the example in the story, where a Fair Witness is asked what color the house on the hill has been painted. The response after she turns and looks is “It’s white on this side.”Report
Maybe some kind of encrypted watermarking?Report
This is going to become a larger problem for the justice system as the technology improves.
Note also that technology tends to improve at a rate far faster than the rate at which judges, legislators, and legal scholars can learn about the implications of new technology.Report
Several years ago my client was up on a probation violation. Among the evidence the prosecutor tried to admit was a print out from my guy’s Facebook with a post saying something incriminating, like about drugs or a gun or something.
The judge was a really tough one, equally an asshole to all parties.
I objected on grounds of authentication, that he couldn’t prove it was really my client’s FB. So he asks the PO about the profile pic to establish that it’s my client, I continued to object successfully and he simply could not figure out why the judge kept sustaining me. The judge understood what I was saying but the pros didn’t; it may have been a pic of my guy and a page purporting to be my guy, but there was no way to prove he himself had created it. Anyone could do it with a photo of anyone else. You’d need FB and technical evidence about metadata etc. to trace it back to my client definitively.
Now, a probation violation only needed to be proven by preponderance of the evidence and the judge totally could have decided it was more likely than not my client and admitted it. But like I said, he was a dick.
That prosecutor was super mad.
(Also it was totally my guy’s FB page.)Report
This is like that story about the lawyer who held up a trial for several days arguing that the prosecution needed to define what a photocopier was before they could claim that the accused had made a photocopy of something.Report
The justice to watch in these cases is Neil Gorsuch, who has advocated for a strict judicial approach that adheres to statutory language. During oral arguments in October, he admitted that the question for him is “really close” but that he worries about a “massive social upheaval” if the court rules in favor of gay and transgender employees.
This is saying the quiet part out loud. He’s going to find that LGBT workers aren’t protected because he doesn’t think they should be, but claim it’s all about the originalism.Report
WW8 – I mean, I want to end QI, but jesus christ!Report
Ww7 – jfc this case? Is still churning? Holy guacamole. (I knew it was a bit ago, but I would not have guessed that the inciting incident was in *2005*)Report
WW1: Here’s where he lost me: “But legislation may not be necessary to reform qualified immunity.”
Is there a point at which it might be sufficient?
I mean, I’d love for the Supreme Court to have a ruling that would make the legislation moot.
Is that the way to bet?Report
I made another big batch this past weekend after we got home – there were a bunch of ripe tomatoes in the garden after being gone – and we actually had company from SC arriving the day we got back. Yep. So there are still some leftovers..Report