Monday, September 23, 2013

Of prisons, preachers, pardons, and pipe dreams: Monday Roundup

Grits is swamped with work this week and blogging will be light, but here are a few odds and ends that merit readers' attention:

Kerry Max Cook update
The Austin Statesman reports that Kerry Max Cook's "lawyers will soon file a petition for actual innocence in Smith County" seeking to finally, formally overturn his false conviction. Cook is one of a small fraternity of Texans who were falsely convicted, sent to death row, and lived to tell about it. Grits has no doubt at all regarding Cook's innocence and wishes him luck.

In-prison seminary promotes transition from criminal to clergy
The Baptist Standard has coverage of the new in-prison seminary operating at the Darrington Unit. The Austin Statesman's Mike Ward last month had a story regarding difficulties moving from training new ministers to actually having them perform ministers' duties at various TDCJ units. That part's easier said than done.

Houston Chron critiques overuse of pretrial detention
Following up on an earlier report Grits discussed here regarding the relation between jail overcrowding and the ability of defendants to make bail, the Houston Chronicle editorial board this week decried "an environment created by criminal court judges and prosecutors largely inured to the hardships and injustices routinely placed on the poor; and with no evident recognition of a cruel form of double jeopardy for the guilty, and unlawful confinement foisted on the innocent.."

Of pipe dreams and presidential pardons
Read Texas Monthly's Michael Hall plea for a presidential pardon for Richard LaFuente. Wrong president for that, unfortunately.

Courts flailing on warrants for location data
Here's an excellent summation from the Electronic Frontier Foundation's Hanni Fakhoury of the current status of US court rulings regarding law enforcement's access to cell-phone location tracking data. Bottom line: It's a conflicted mess. Texas just missed passing a warrant requirement for cell-phone location data during the 83rd session. Though the warrant requirement was vigorously opposed by law enforcement, it passed the Texas House by a 126-4 margin and came within a hair of making it to the Governor's desk. By 2015, the debate surrounding these topics will have matured considerably and hopefully Rep. Bryan Hughes, Sen. Juan Hinojosa, Sen. Craig Estes and Co. will try again. Legislatures, not the courts, should be calling these shots.

Orin Kerr imagines the 'next generation' of electronic privacy legislation
George Washington University law professor Orin Kerr has a new paper (pdf) out on "The Next Generation Communications Privacy Act" offering suggested amendments to the outdated 1986 Electronic Communications Privacy Act (ECPA). In his earlier writing, Kerr staked out a position arguing that civil libertarians should trust the intent and application of the Patriot Act because it merely built on this flawed  1986 law, all the while offering no substantive critique of ECPA. This paper demonstrates why those arguments, to me, were particularly unconvincing: Kerr's earlier work pretended Fourth Amendment fans should be comforted by the Patriot Act doubling down on flaws in surveillance law in ways that most sensible people find alarming (e.g., the NSA's mass collection of phone call metadata).

That said I agree with much (but not all) of this latest essay, though I consider his suggestions incomplete. Some of it - like standardizing a warrant requirement for email contents and abolishing the outdated distinction between "electronic stored communications" and "remote computing services" - were addressed in the new Texas warrants-for-email statute your correspondent helped the Texas Electronic Privacy Coalition get passed this spring. (There's an ongoing push to update federal law in a similar fashion.)  I also liked some of his suggestions for minimizing electronic data collection and imposing a particularity requirement, which I'll surely be revisiting for ideas before the Texas Legislature reconvenes in 2015. However, notably absent from the paper is a fix to what Justice Sonia Sotomayor has identified as the pivotal flaw in electronic-era Fourth Amendment jurisprudence: The third-party doctrine, which holds that we have no privacy rights regarding data shared with a vendor or another person. That's a drive-a-truck-through-it-sized loophole in the era of cloud computing. Kerr has been perhaps the most vocal defender of the third-party doctrine outside of law enforcement so it's unsurprising this paper failed to address it. But any "next generation" version of ECPA would be woefully inadequate if it failed to confront the question.


Soronel Haetir said...

I will be amazed if federal legislation with any chance of passage is willing to pare back the third party doctrine. The feds have been going in the opposite direction of late, immunizing telco data "sharing" and the like.

Gritsforbreakfast said...

Most criminal prosecutions happen under state law, Soronel. I'd be fine with it if we started there, just like is happening with email, cell-phone location data, etc.. Big ships turn slowly.

Anonymous said...

On the subject of prisons, Grits reported recently that the city of McAllen was considering a private prison to house federal prisoners. The Monitor is reporting that the city rejected the lone bid without evening opening the fedex box in which the bid was contained. FYI.

Anonymous said...

Re: KMC. The article says - In 1999, heading into a fourth trial, technicians found DNA evidence on Edwards’ underwear belonging to another man, not Cook. A no-contest plea was negotiated. Cook was free. Sort of. Free but still a convicted felon.

I never knew about the plea bargain part and not about to pay to learn about it (Statesman 24 hour .99 pass). So, if Mr. Cook visits GFB, please consider telling us what 'reasons' you were provided for changing Not Guilty to nolo contendere? Did they cross out Not Guilty and write under it nolo contendere? We also wish you the best in your endeavors.

Anonymous said...

Speaking of splittin pleas - The West Memphis 3 were tricked into taking a funky made for TV plea in return for freedom. I was tricked into stopping a jury trial and changing my plea to nolo contendere simply for being on probation at time of arrest (on a new unrelated charge).

Just goes to show that this isn't isolated but used statewide to convict and release the innocent when traditional jury trials are ignored, the jury is tricked into thinking they got 'all' of the evidence & the Defense teams up with the D.A's thumpers.

Anonymous said...

Legal Advice is a leading cause of self-imposed wrongful convictions. Legal blunders are preventable but when we allow or incorporate get-out-of-trial loopholes that provide everyone an 'Out' while not addressing or vetting the original reason(s) for arrest, trial & conviction, we set ourselves up for what we deserve. And I'm starting to think that $80K per year plus, plus isn't enough. (insert ‘Insane’ definition here)

Considering that the taxpayers are willing to continue to pay for the transgressions of the rogue courts of Texas, how about upping the ante? 1 million dollars tax free for those denied a jury trial to verdict, including those that can show that the jury wasn’t given or was deprived of ‘All’ of the evidence needed to either convict or release. A bonus of an additional $300K tax free when the defendant can show that his / her Defense counsel advised to stop a jury trial in order to plea bargain on bogus legal rational.

If this sounds good tell it to your leader or if it needs tweaking go for it.