Author: Danielle Citron

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Sentence Reduction: A New Remedy for Prosecutorial Misconduct

Typically, remedies for prosecutorial misconduct are all or nothing–convictions and pleas are reversed or dismissed, on the one hand, or the abusive behavior is viewed as harmless error and nothing is done about it, on the other. But, on September 24, 2008, Judge Bennett in the N.D. of Iowa eschewed this binary choice in United States v. David Dicus, reducing the defendant’s sentence for the prosecutor’s breach of the plea agreement regarding a sentence enhancement instead of viewing a withdrawal of the guilty plea (or specific performance of the breach provision) or no response as the only available options. The court refused to ignore the misconduct, even though the sentencing court did not in fact impose the sentence enhancement, because “it would do nothing to deter prosecutorial misconduct or to give defendants an incentive to raise prosecutorial misconduct claims.” In making the decision to remedy prosecutorial misconduct with a reduction of the defendant’s sentence to the low end of the advisory sentencing guidelines range, the court relied on Sonja Starr’s compelling new piece, Sentence Reduction as a Remedy for Prosecutorial Misconduct (which will be coming out in the Georgetown Law Journal in 2009). Starr’s article is ground-breaking and makes an important contribution to the law development’s in this area. In it, she argues that sentence reduction would be both an effective deterrent to prosecutorial misconduct and an important corrective and expressive remedy.

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COINTELPRO in a Digital World

In a move reminiscent of the FBI’s infiltration of political advocacy groups in the 1960s and early 1970s, the Maryland State Police engaged in covert surveillance of groups opposed to the Iraq war and capital punishment. According to a report recently released by former Maryland Attorney General Steven Sachs, Maryland troopers secretly attended meetings of anti-death penalty and anti-war activists in 2005 and 2006. At one meeting, a small group of activists met at a church to call a death-row inmate for whom they provided emotional support. This activity, and others like it, prompted the Maryland State Police to include group members in state and federal criminal intelligence databases. Unfortunately for the activists, the state database, known as Case Explorer, had a limited drop-down screen for entering names, all of which ensured that the users of the system would categorize individuals as terrorists.

News of the covert surveillance and the individuals’ inclusion in these databases as terrorists came to light this summer when the Maryland State Police responded to a public records request pursued by the ACLU. Maryland Governor Martin O’Malley commissioned former AG Steven Sachs to investigate the matter. Sachs’s report explains that the Maryland State Police commanders never bothered to ask if the groups posed a reasonable threat to public safety before commencing covert surveillance of them. On the contrary, the groups were determined not to violate the law. According to the New York Times, Maryland State Police are now tracking down 53 “innocent individuals to let them know they were entered as suspected terrorists” in the state and federal databases for their involvement in peaceful protest. In legislative hearings in Annapolis, Maryland this week, former Maryland State Police superintendent insisted that the program was a legitimate surveillance of “fringe people” who wanted to “disrupt the government.”

To be sure, the surveillance itself raises serious concerns about chilling protected political expressive activity. But it also demonstrates the profound power of automated systems, whose design forces important decisions to be made about individuals. By requiring police to categorize individuals as some form of “terrorist,” the systems’ design effectuated an important decision about those individuals, one that could have serious impact on their reputation and lives if that information were released. The digitization of such designations has a lasting, generative power, far beyond the FBI files of the COINTELPRO era that could not be shared with the ease of today’s networked computer systems.

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Deja Vu Blues

The saying “the more things change, the more they stay the same” is an unfortunate truth when it comes to our voting machines. In 2000, optical scanning machines in certain New Mexican counties counted a straight-party vote without distributing the votes to each of the individual party candidates. For instance, if a voter filled in the oval for a a straight-party Democrat, the scanner would record the ballot as cast but would not allocate votes to Presidential candidate Al Gore and the other Democratic candidates. Fast-forward to 2008: election officials in Sante Fe, New Mexico report that testing of their optical scanning machines revealed that a glitch in the memory cards prevented the tabulating machine from counting the votes in the Presidential, Senate, and House races when a voters marked their ballots indicating that they wanted to vote a straight-party ticket. Had the error not been caught, all of the county’s tabulating machines would have been affected. Although the memory cards have been re-burned and fixed in these counties, concerns about the rest of the country’s optical scanning machines remain. As e-voting and information security expert Peter Neumann noted during his presentation for Columbia University’s Computer Science Distinguished Lecture series held this Monday, we should worry about the accuracy and security of the upcoming elections as it is the computer scientists who say that computers are unsuitable for voting.

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Secrecy in Voting (But Not the Good Kind)

A New Jersey Superior Court judge is currently presiding over a case brought by the Rutgers Constitutional Litigation Clinic that seeks to decommission New Jersey’s electronic voting machines. (New Jersey mostly uses direct-recording electronic (DRE) machines manufactured by Sequoia Voting Systems, one of the country’s top e-voting machine vendors.) The lawsuit contends that because the DRE machines fail to produce a voter verified paper audit trail, there is no way to know whether the machines, in fact, record the votes as cast. In June, the judge issued a protective order, requiring Sequoia to turn over its source code to plaintiffs’ expert Andrew Appel and assuring the company that its trade secrets would be protected. The order asserted that Appel could publish his report 30 days after its delivery to the court. On September 2, Appel and his team of computer scientists delivered the report to the court, assuming that they could publish it on October 2.

On Freedom to Tinker (where fantastic guest blogger Paul Ohm is now blogging permanently), Appel reports that the judge has now changed her mind. On September 24, the judge, ruling from the bench, told plaintiffs that they cannot release the report or discuss its findings.

Because the court ensured that the report would not reveal the company’s trade secrets, this eleventh-hour reversal does not appear based on a desire to protect the company’s legitimate interests. Instead, this new veil of secrecy seems intended to delay the bad news that the New Jersey voting machines are troubled until after the election. (Doesn’t it seem unlikely that the judge would delay the report’s release if it gave the machines a glowing review?) Perhaps the judge reversed course in the hopes that keeping the report secret would avert a crisis of confidence in the state’s voting apparatus. But such a crisis seems inevitable. And, more importantly, New Jersey voters deserve to be told that the machines may not count their votes accurately. This would allow them to decide for themselves whether they want to cast their votes as absentees, which would be counted on optical scanning machines and not DREs. Further, as Andrew Appel argues, the Governor and members of the New Jersey legislature need to read the report so they can protect their constituents’ right to vote. Hiding the results of the report can only cast doubt on the legitimacy of the returns in November.

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Extreme Case of Automation Bias

According to cognitive systems engineering literature, human beings view automated systems as error-resistant. In other words, we trust a computer’s answers, even if evidence suggests that we should doubt them. Our automation bias was on full display on Monday night when a New York man drove onto railroad tracks because his GPS told him to do so. Luckily, the man and his passengers escaped injury before the train hit his car. A Metro-North spokesperson told reporters: “You don’t turn onto train tracks even if there are little voices in your head telling you to do so. If the GPS told you to drive off a cliff, would you drive off a cliff?” If this train incident and another like it nine months ago provide any guidance, the answer may tragically be yes.

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Wikimedia Commons

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News for Civil Procedure Fans

During the fall semester, my civil procedure class covers personal jurisdiction. While most personal jurisdiction cases tend towards the staid, Calder v. Jones provides some possibility for fun. As my comrades in civil-procedure arms will know, the case involves a defamation suit brought by Shirley Jones, the mother from the Partridge Family. Every semester, this connection has great promise to generate some good cheer about the case, but of late I have been disappointed. This year, I desperately asked: “Don’t you remember the Music Man? or the Partridge Family?” (I thought about singing “I think I love you” but thankfully I ignored that foolish impulse). All I got was blank stares, a clear sign that I am helplessly unhip. My disappointment, however, may come to an end: NBC has just announced plans to reinvent the Partridge Family for prime-time television. Now, I just have to hope that my future students tune in. Amidst all of terrible news about the economy, this may lift spirits, even momentarily for civil procedure fans.

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Rulemaking 2.0

Government officials are increasingly adopting Web 2.0 technologies to connect with citizens. Governors and mayors are blogging and posting videos on You Tube. See here. The State Department has an internal wiki called Diplopedia, which it presented at the Wikipedia conference in Alexandria, Egypt. Perhaps agencies will similarly embrace Web 2.0 platforms to transform their e-Rulemaking efforts, which to date have simply reproduced offline NPRMs and comments online. Rumor has it that the ABA has a committee working on potential e-Rulemaking projects. If the ABA produces a report, it might interest the new administration, but only if online tools would cheaply and effectively bring together stakeholders and the public to discuss proposed agency action.

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Investigation of FCC Ends, For Now

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In January 2008, the House Energy and Commerce Committee initiated a formal investigation into the FCC’s “regulatory procedures and practices.” At issue were concerns that agency officials abused how items were brought to a vote, leaked information to certain lobbyists and not to others, and insisted up moving forward with modifications of the ban on newspaper-broadcast cross-ownership depsite attempts to stop or delay agency action by members of FCC oversight committees in both Houses. According to Chairman John Dingell, the investigation would assess if the FCC’s procedures were conducted in a “fair, open, efficient, and transparent manner.” In March, the Committee asked FCC Chairman Kevin Martin for emails, memoranda, notes, phone conversations, meeting schedules and other information on the setting of FCC agendas, any limitations on communications between employees on official agency business, contacts with industry, personnel reassignments, among other things.

The Committee has just announced the end of its investigation. Now, the Committee is “considering how best to make our findings public, including a committee report.” The investigation did not include public hearings. Although the Committee members are no doubt distracted by the current fiscal crisis, one can hope that their report is issued soon.

Wikicommons Image

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Two Women, Great Legacies

This week marked the passing of two women journalists who pioneered great change in their times. According to The New York Times obituaries section, Nancy Hicks Maynard, the first black woman to be a reporter at the New York Times, died at 61. Ms. Maynard joined the New York Times in 1968 where she stayed until 1974. At the Times, she reported on race riots, student takeovers at Columbia and Cornell, and the death of Robert F. Kennedy. She also wrote for the paper’s education and science news departments. She founded the Maynard Institute for Journalism Education, which has trained hundreds of minority journalists in the past 31 years. Ms. Maynard and her husband, Robert C. Maynard, a columnist for the Washington Post, bought the financially-ailing Oakland Tribune in 1983. The Times reports that her interest in journalism was sparked after a fire destroyed her former elementary school in Harlem. Outraged by the way her community was described in the press, she “decided she could make a difference.” Indeed, she did.

And so did Mary Garber, a journalist who first began covering athletics more than 60 years ago when female sportwriters were barred from press boxes and locker-room interviews, who passed away on Sunday. When Ms. Garber began her career as a sportswriter, the craft was dominated by men. Coaches treated her badly, her fellow sportswriters ignored her, and professional associations excluded her. But she perservered, first covering high school sports and then on college athletics. She also highlighted the acheivements of black athletes in the 1950s, in particular at Winston-Salem State, a time when “news about black people ended up on the Sunday newspaper’s ‘colored page.'” The Hall of Fame basketball coach Clarence Gaines told a reporter in 1990 that “We had outstanding athletes . . . and Mary came to write about them when no one else cared. Mary was always trying to help the underdog.” She later wrote for The Twin City Sentinel in Winston-Salem and The Winston-Salem Journal. In 2005, at 89, she became the first woman to receive the Associated Press Sports Editors’ Red Smith Award, presented annually for major contributions to sports journalism.

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The Troubles with Partisan Election Administration

McClatchy Newspapers reports that a Republican county clerk in Colorado has been accused of using the state’s registration laws to suppress student voting, which is expected to heavily favor Democratic presidential nominee Senator Obama. The clerk apparently distributed a flier to the college that said: “What this means is that if your parents still claim you on their income tax returns, and they file that return in a state other than Colorado, you are not eligible to vote or vote in Colorado.” (Jon Greenbaum of the Lawyers Committee for Civil Rights Under Law explains that states and counties cannot adopt rules that one group of voters differently than others). Colorado Democrats also accused another county elections clerk, a delegate to the Republican National Convention, of taking other steps that would dampen voting by college students. That clerk admitted that he “mistakenly published information that was incorrect.” Local election officials in Virginia and South Carolina have similarly discouraged college students from voting. And, in Michigan, Democrats have filed a lawsuit seeking an order barring Republicans from using lists of people facing mortgage foreclosure proceedings as a basis for challenging their eligibility.

The partisan nature of election administration is troubling, both because it has long raised issues of deception to suppress voting and because it lowers the pubic’s confidence in the election process. As election law expert Richard Hasen has advocated, states should replace partisan election officials with a cadres of nonpartisan, professionalized election administrators on the state and local levels of government.