Don't we have better things to do?

More outrage, which seems to be all I have these days. Osama bin Laden is still at large; the economy is in a handbasket on its way to hell; our energy "policy" is to consume as much as possible; and the Air Force haphazardly mishandles the US nuclear arsenal, by flying warheads across the country in an unguarded C-5.

Your government is hard at work protecting you, my fellow Americans. Max Hardcore has been convicted.

For those who don't know, Max Hardcore is nom de pr0n of Paul Little, and his work is generally upsetting to me. His videos are generally male-dominant, and strike me as angry to outright misogynistic. Not my cup of tea, but legal.

Apparently, it is not Justice's cup of tea either. Even though Max Hardcore never actually set foot in Florida (professionally, at least), DoJ chose to prosecute him there because the servers for his website were located in Florida, and because he sold some of his videos were sold there via the mail.

Or perhaps because no jury in Southern California would ever possibly convict him?

As a lawyer, I think the jurisdiction is weak at best. As society becomes increasingly decentralized, territorial jurisdiction becomes simultaneously more important and more susceptible of abuse. By choosing to indict in Tampa, the government did nothing more than forum shop for a favorable jury pool. This is as old as American justice itself, both criminal and civil.

However, by prosecuting a businessman (because that is what Max Hardcore is, a businessman) because some of his were sold via a server farm PHYSICALLY located in a district that he didn't choose, although legal in the jurisdiction where the actual production occurs shows an immense disregard for the people of California. To put it another way, the "crime" occurs wherever the government thinks they can convict someone. Tampa is well known in legal circles for being antagonistic to sexually oriented businesses. So they found a way to get the case down there.

On the other hand, the internet is also undermining the single greatest justification for territorial jurisdiction. Territorial jurisdiction gives the affronted people a chance to pass judgment on the offender. But theoretically, the whole world could be affronted by material transmitted via the 'nets. It makes little sense for a small, prudish sliver of the American people (and remember, this was a Federal case, prosecuted on behalf of every American)
be able to pass judgment on someone. Max Hardcore is a felon now, in California and New York, as much as in Florida, simply because he made a legal product in which all the participants consented, but which is not everybody's taste.

Like I said, not my cup of tea- but not a crime either.

This is patently offensive

The Supreme Court of Washington has affirmed a murder conviction that was based in large part by DNA evidence obtained through absolutely appalling trickery, even by cop standards. Trying to close a cold case, the police concocted a ruse to obtain the DNA- they sent the suspect a letter from a fictitious law firm, claiming that he was a class member in a (phony) class action. Naturally, he signed a few documents and licked an envelope.

They got the DNA off the envelope.

This is an outrage! The cops subverted the legal process, claiming to be his attorneys! This is an instance in which bad facts made bad law. The guy was a rapist and murderer, so why let "technicalities" like the Constitution stand in the way.

Interesting jurisdictional problem

Thanks to Norm at Crime & Federalism for the hat tip on this, although he went off on a different angle.

The Facts (short version)- Guy from New York goes to Connecticut, allegedly has too much to drink and kills a pedestrian. Returns to New York, confesses to his parents, and they allegedly help him cover it up. Like I said, short version. Longer version here.

The guy is charged with various and sundry, and there is talk of charging the parents- but where? They never set foot in Connecticut, and their involvement seems to be entirely after the fact, meaning that they are not really conspirators to the substantive offense, and I can't find a Model Penal Code style territorial applicability statute in Connecticut. I suppose the effects doctrine from international law could apply here, or Connecticut could charge the parents with conspiracy to obstruct justice which would truly get around the jurisdictional problem altogether.

Still very interesting.

Two rulings today

The Supreme Court decided two cases today. Well, they decided one, and punted on the other.

In the first ruling, the Court held that paying royalties to a putative patentee under a license agreement does not foreclose the licensee from challenging the validity of the patent at issue in the license itself. This is a great turn of events for innovation- patent trolls have basically choked the system, and anyone developing new technologies is at risk from the increasingly frivolous patent system.

In the second case, the Court granted cert to decide one question (whether a defect in the indictment can be harmless error), but decided a different question altogether (that the indictment wasn't really defective after all). This is the second case this term in which the Court dodged an important Constitutional question, the first being Musladin. I sense in this the work of the Chief Justice, who wants the Court to issue narrowly crafted decisions on the most minute of grounds. Meaning useless precedent.

Back to regular blogging tomorrow.

When you roll the dice, sometimes you come up snake eyes...

Someone got sentenced last week. He had a plea deal in place, but elected to plead straight thinking he could do better than the offer, and he had some great arguments for lenience. Well, he did worse than the offer on both the front AND back ends.

Some years ago, I remember the British nanny murder trial. Her attorneys made a tactical choice not to ask for a lesser included instruction- it was guilty of murder or not guilty at all. She lost. Snake eyes. However, the Court reduced the conviction to manslaughter and sentenced her to time served. In the ruling, the Judge said "A court... is not a casino." Snakes eyes to seven, albeit the hard way.

This is not the way the system ought to work. It really isn't a game, and yet everything we do is basically playing "Let's Make a Deal." Do you take the not entirely satisfying prize you already have, a set of luggage, perhaps, or do you opt for Door Number 3? It may be a car, it may be a goat.

It makes it virtually impossible to represent people in garden variety cases- the kind that always result in a guilty plea- with clients who have non- garden variety circumstances. The guy who simply gets drunk and starts brawling maybe doesn't deserve a break- but the guy whose wife just left him or who lost his job or who maybe learned his mother has cancer does. What of the guy who has mental health problems that do not rise to the level of a legal defense? What are these people to do?

There are two conflicting considerations here- the system tries to treat all defendants the same, while also trying to treat everyone as an individual. Try explaining that to a client, who may have serious cognitive disabilities, or who might simply be uneducated. "Well, the court will consider your background, your education, all sorts of things. But the guidelines still say you're supposed to do at least three months in jail."

So, Mr. Client, are you different enough to merit a three month reduction down to just probation? Or are you not different enough? Or, will your background instead give the judge a reason to go up, because you, Mr. Client, should have known better than to forge a check?

A court may not be a casino, but at least a casino is predictable- always split aces and eights, and double all elevens and tens.