Yet another state suspends executions

I haven't posted in a bit, as I sorted through something I have written about on my personal blog. Not that there hasn't been news, I have just paid some attention to me. But now- back to the law stuff.

In a bit of news without analysis, these are happy times for death penalty opponents. A North Carolina court handed down a ruling that amounts to a moratorium on executions. The law in NC is that a doctor must attend to the proceedings, but the state medical ethics board ruled that to supervise an execution is inconsistent with medical ethics. No doctors will supervise, therefore no execution.

Finding procedural loopholes are a time-honored practice in the profession to avoid having to make a potentially unpopular decision on the merits. Last month, the Maryland Court of Appeals stayed all executions (171 page PDF file) because the Department of Corrections did not follow the necessary administrative processes in developing their execution protocols. If the Court really wanted to stop the machinery of death, their chosen method is cowardly- however, it had the effect of bringing the death penalty back to floor of the Maryland legislature, and the Governor announced that he would sign a bill to abolish. Given that Maryland has no substantial history of executions, I would venture to guess that it will pass.

My beloved home state of New Jersey- a state that has only sent about 20-odd people to death row, had more than half of the sentences overturned, and hasn't executed anyone since the sixties- is on the verge of abolishing the death penalty. In all, twelve states have suspended executions for one reason or another. Even a Federal judge has bullied prosecutors over what he believes is an unnecessary death case.

The tide is turning in this area. Analysis later.

Ugh- this is scary...

As a defense attorney, I have represented both snitchers and snitchees. Cooperating with the police is a risky business, for obvious reasons, and in the current climate on the streets it could be fatal if an informant's identity is revealed.

Which is why even I find this to be an outrage- for only $10 a month, you can subscribe to a national database of known informants. The operators of this site- whomever they are- had better not hope any one of these people gets killed. They would definitely be civilly liable under the Anarchist's Cookbook theory, and it would not take much for a smart prosecutor to make out a criminal case- I think it would survive prima facie for at least accomplice liability.

Something doesn't seem right

Earlier this month, the Superior Court of Pennsylvania issued a ruling (PDF) in a child pornography case that I read and then decided it was not a landmark decision. The appellant was convicted of "knowing possession" of child porn. The evidence (by all accounts, undisputed) showed that he intentionally sought out child porn (over 370 images), but did not save the images to his hard drive. Unknown to the appellant, the browser automatically saved them to the cache. The Court held that since he did know the images were saved somewhere, he could not be convicted of knowing possession, and the law as written did not criminalize mere viewing. Had he known about the cache, the result would have been different.

We hold that absent specific statutory language prohibiting the mere viewing of pornographic images or evidence that the defendant knowingly downloaded or saved pornographic images to his hard drive or knew that the Web browser cached the images, he cannot be not criminally liable for viewing images on his computer screen.

Then a friend sent me an article about the case, and it got me to thinking. This guy intentionally seeks out kiddie porn, and is saved by his own stupidity. Suppose someone accidentally stumbles upon a single image, immediately leaves the site, and does not intentionally save it- BUT this person also knows about the cache. That guy is guilty because he is not as stupid, despite the far less reprehensible nature of the conduct. What if hypothetical guy number two immediately clears the cache? Is that also evidence tampering? Obstruction of justice?

This case also points out the difficulties inherent in the concept of "possession" itself, particularly when applied to digital files. When one my clients is charged with possession of crack, it is easy enough to understand- it is physical, it exists in the palm of your hand. But when the concept is applied to information, it falls apart. What if you have an encrypted kiddie porn image on your hard drive, but lack the key to unlock it? What if the file is corrupted? What if you have it on your hard drive, know what it is, but it is in a proprietary format and you lack the software to open it? What if you simply never open it?

This is a serious problem for the future, when information is becoming increasingly digital. The Law- that's, capital T, capital L, The Law- was mostly written in a world lit by candlelight and coal fire, when businesses kept their books in actual books. We no longer live in that world, and The Law cannot keep up.