Thursday, December 18, 2014

Uncuffed (or Something Like It) Has Moved

Thank you very much for your interest in Uncuffed. The blog—or at least this incarnation of it—has gone on hiatus. But you can find the same kind of posts from Micah Schwartzbach over at Nolo’s Official Blog.

Friday, December 5, 2014

California Nets First Actual Revenge-Porn Conviction

Shortly after Arizona’s “revenge porn” law closed for construction, California’s equivalent claimed its first conviction. 

According to prosecutors, this week’s criminal judgment involved a man who went online with an image of his ex-girlfriend, topless. They say that he posted the photo on the ex’s employer’s Facebook page, pairing it with “messages calling her a ‘drunk’ and a ‘slut’ and encouraging her firing.” His sentence includes a year in jail. (“‘Revenge porn’ conviction is a first under California Law.”)

In October of last year, the Golden State enacted the first-ever revenge porn law. Other states had laws that might have applied to the same kind of conduct, but California’s was the first crafted precisely with “cyber exploitation” in mind. (State Attorney General Kamala Harris prefers that terminology, reminding that these cases don’t always involve former romantic partners.)

Then, almost exactly year ago, some hailed what they called the nation’s first revenge-porn prosecution. It was another California case, but it really wasn’t about the then-new law. (See The Revenge Porn Prosecution That Wasn’t.) This week’s case, on the other hand, actually invoked Penal Code section 647(j)(4). That subdivision, part of a broader disorderly conduct law, punishes:
  • photographing or recording an image of an identifiable person’s genitals “under circumstances where the parties agree or understand that the image shall remain private” and 
  • later, intending to cause serious emotional distress, distributing the image.
A violation requires that the person in the image actually suffer serious emotional distress. (You can get more of the law—the actual text—at this government site.)

We can expect more revenge-porn convictions to follow, both in California and elsewhere. According to the National Conference of State Legislatures, at least 13 states have revenge-porn laws. And more are working on it.

Tuesday, December 2, 2014

Revenge-Porn Law Goes on Hold

The revenge-porn battle continues. The challenge, as legislators have quickly learned, is targeting what most would conceive of as spiteful or otherwise inappropriate image sharing—and nothing else. (Similar legislative fights have emerged over the closely related issue of “upskirting.”)

The principle idea behind revenge-porn laws has always been to criminalize the publication of sexual images of former significant others. We’re talking about, for instance, a recently ditched boyfriend gathering intimate photos of his now-ex and posting them on Facebook.

Critics have argued all along that revenge-porn laws are too broad, to the point that they encroach upon hallowed First Amendment ground.

That’s the exact argument of the ACLU in a recent challenge to Arizona’s variety of revenge-porn legislation. reports:

The ACLU and a private law firm representing booksellers sued, charging the law would make criminals out of those who sell, display or simply show images of others who are naked but have not granted specific permission. ACLU attorney Lee Rowland said the result is a “chilling effect” on merchants, causing them to pull books from their shelves for fear prosecutors will use the law against them.

That kind of rationale now has the law in a holding pattern. Last week a federal judge, at the request of the ACLU and the state attorney general’s office, ordered a freeze on enforcement of the statute. The hold is designed to give the Arizona State Legislature time to tweak the law upon reconvening at the turn of the year.

The Law

The statute in question, with limited exceptions, makes it a crime to:
  • “intentionally disclose, display, distribute, publish, advertise or offer”
  • “a photograph, videotape, film or digital recording”
  • of someone who is either naked or “engaged in specific sexual activities”
  • if the actor knows or should have known that person in the image or recording hasn’t consented to disclosure.
“Specific sexual activities” include what you might imagine they would: masturbation, fondling, intercourse, and beyond. (Ariz. Rev. Stat. Ann. §§ 13-1425, 11-811.)

The crime, a class 5 felony, becomes a class 4 felony if the victim is “recognizable.” That classification means potential prison sentences exceeding two years.

A Fix?

When they give the law another go, Arizona lawmakers will presumably try to address contentions that it criminalizes “speech” that has intrinsic value—artistic or educational, for example. They might carve out additional exceptions to those currently in the law’s text. 

They might also follow the lead of California, the first state to enact legislation specifically fitted for revenge porn. California’s law requires that the porn sharer act “with the intent to cause serious emotional distress.” (See The Revenge Porn Prosecution That Wasn’t.)

That “specific intent” requirement may obviate the objection that the law allows for the wrong kind of prosecution. Or it may simply plug one of what objectors consider many holes.

Tuesday, November 25, 2014

Michael Brown: An Officer’s Words, a Grand Jury’s Decision

We’ve long known that Officer Darren Wilson shot and killed 18-year-old Michael Brown on the afternoon of August 9, 2014. But only this bare fact has been certain.

There were witness accounts that Brown fled from Wilson as the officer gunned him down. Then there was someone claiming to be connected to Wilson who reported that the officer said Brown ran at—not from—him at the point of the fatal shots. There were also forensic reports, and arguments about them.

There was so much that we didn’t know—or at least, that wasn’t clear. What was Officer Wilson’s demeanor in initiating the confrontation? When, if ever, did he know that Brown had minutes ago become a strong-arm robbery suspect? Who got physical first? Did Brown really go for the officer’s gun?

Amidst all those questions, there were protests, and arrests. And accusations. Accusations by protestors and reporters against police officers, of violence and civil liberties violations. Then there were pleas for peace.

And then, on Monday, there was the grand jury’s decision.

No probable cause to indict. No true bill.

Whatever one makes of the non-indictment, it’s worth remembering that this was not a trial. (If there’s going to be any kind of trial, it’ll be in a federal or civil courtroom.) This wasn’t even your typical grand jury. This was not a prosecutor saying, “We want to prosecute this guy. Here are all the reasons you should indict him.” Instead, it was an exercise in exploration. It was, “Should we prosecute this guy?” “If you say ‘no’—and it’s really your decision—then that’s okay.”

The Office of the St. Louis County Prosecuting Attorney didn’t need the grand jury. Prosecutors could have filed charges directly. But maybe they weren’t inclined to, because they wanted someone else to make the call. 

Use of Force

Justifications exist for police use of lethal force. Lethal force may be justified even where the victim is in the process of fleeing. According to U.S. Supreme Court precedent, an officer may use deadly force to stop an unarmed and fleeing felony suspect where it’s necessary to prevent escape and the suspect poses a significant threat of serious harm to the officer or others. (For further explanation, see What the Accounts of Michael Brown’s Shooting Mean in Legal Terms.)

Police officers in Missouri and elsewhere may, obviously, also use force when the suspect isn’t fleeing. If they’re under threat, theyre entitled to use reasonable force. They may use even deadly force, when they have probable cause to believe that the suspect presents a significant threat of serious injury. The issue is whether the deadly force was objectively reasonable. That depends entirely on the circumstances. It’s possible, for example, for a jury to find that an officer used an initially appropriate amount of force, then continued with unnecessary deadly violence.

Wilson’s Account

Immediately after Monday night’s announcement, officials released documents indicating what the Ferguson grand jury considered. Among those is a transcript of what Officer Darren Wilson told the 12 grand jurors about his encounter with young Michael Brown.

Wilson’s testimony—whether you accept it or not—appears to be the version the grand jurors believed.

Wilson represents himself as 6’4, approximately 210 pounds. He testifies that he saw Dorian Johnson and Michael Brown—two men he didn’t know—walking down the middle of the street; he asked them to clear it.  He first spoke with Johnson. Then, he says, Brown became verbally aggressive.

Wilson reports that he noticed “cigarillos” in Brown’s hand, and it “clicked” for him that these were the two men described in the moments-earlier convenience-store theft. Wilson then positioned his car to head them off. As he began to speak with Brown and open his car door, Wilson says, Brown continued with the vulgarity and slammed the door shut. Wilson explains that he eventually pushed the door open, against Brown, and told the young man to “get the fuck back.”

From there, Wilson recounts an attack by Brown, who had “trapped” his adversary. It’s a full-out assault in Wilson’s words. In those words, Brown punches the officer in the face, repeatedly.

And when I grabbed him, the only way I can describe it is I felt like a five-year-old holding onto Hulk Hogan.
Wilson recounts continuing to try to get the door open. He effectively depicts himself as helpless—trapped. He explains why neither his mace, baton, nor flashlight were viable self-defense tools. The gun, he explains, was the last resort. He says he even warned Brown, “Get back or I’m going to shoot you.”

Brown’s response, according to Wilson, was to grab the gun and say, “You are too much of a pussy to shoot me.”  

Wilson portrays an unyielding attack:

I felt that another one of those punches in my face could knock me out or worse. I mean it was, he’s obviously bigger than I was and stronger and the [sic], I’ve already taken two to the face and I didn’t think I would, the third one could be fatal if he hit me right.”
Wilson says Brown got his hand on the gun and was trying “to get inside the trigger guard.” The officer says he tried to fire twice, to no avail. The third time the gun, virtually unaimed, goes off.

According to Wilson’s chronicle, Brown then stepped back:

[H]e looked up at me and had the most intense aggressive face. The only way I can describe it, it looks like a demon, that’s how angry he looked. He comes back towards me again with his hands up.
Wilson testifies he again tried to fire the gun, again without success. He describes Brown hitting him another time, and himself finally being able to fire another shot—while still in the car.

This initial struggle—it can hardly be called a prelude—is crucial in framing the context for what happened next. That, more than anything else, has divided the country.

“The Threat Was Stopped”

From Wilson:

When I look up after that, I see him start to run and I see a cloud of dust behind him. I then get out of my car ….
We start running … [a]cross the street like a diagonal …. And there is a light pole right there, I remember him running towards the light pole.
We pass two cars that were behind my police car while we were running .…
When I passed the second one, about that same time he stopped running and he is at that light pole. So when he stopped, I stopped. And then he starts to turn around, I tell him to get on the ground, get on the ground.
He turns, and when he looked at me, he made like a grunting, like aggravated sound and he starts, he turns and he’s coming back towards me. His first step is coming towards me, he kind of does like a stutter step to start running. When he does that, his left hand goes in a fist and goes to his side, his right one goes under his shirt in his waistband and he starts running at me .…
As he is coming towards me, I tell, keep telling him to get on the ground. He doesn’t.  I shoot a series of shots. I don’t know how many I shot, I just know I shot it.
I know I missed a couple, I don’t know how many, but I know I hit him at least once because I saw his body kind of jerk or flinched.
I remember having tunnel vision on his right hand, that’s all, I’m just focusing on that hand when I was shooting.
Well, after the last shot my tunnel vision kind of opened up. I remember seeing the smoke from the gun and I kind of looked at him and he’s still coming at me, he hadn’t slowed down.
At this point I start backpedaling and again, I tell him get on the ground, get on the ground, he doesn’t. I shoot another round of shots. Again, I don’t recall how many it was or if I hit him every time. I know at least once because he flinched again.
At this point it looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him.
And the face that he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way.
Well, he keeps coming at me after that again, during the pause I tell him to get on the ground, get on the ground, he still keeps coming at me, gets about 8 to 10 feet away. At this point I’m backing up pretty rapidly, I’m backpedaling pretty good because I know if he reaches me, he’ll kill me.
And he started to lean forward as he got that close, like he was going to just tackle me, just go right through me .…
And when he gets about that 8 to 10 feet away, I look down, I remember looking at my sites and firing, all I see is his head and that’s what I shot.
I don’t know how many, I know at least once because I saw the last one go into him. And then when it went into him, the demeanor on his face went blank, the aggression was gone, it was gone, I mean, I knew he stopped, the threat was stopped.

Decision Made

“Cloud of dust.” “Bulking up.” “[I]f he reaches me, he’ll kill me.”

The law on fleeing felons may have been irrelevant to the Ferguson grand jury. According to Officer Darren Wilson, Michael Brown did anything but flee—at least at the moment that mattered most. Whether Wilson’s testimony was truthful and precise, so many of us don’t know. But whatever the testimony was, to the extent one can judge from reading words on paper, it was vivid. 

“Demon.” “Grunting.” “Hulk Hogan.”

That testimony—if believed—suggested that Wilson had the probable cause an officer needs in order to lawfully use fatal force.

Was the story so compelling because Wilson had time to fashion and rehearse it? Because he didn’t have to undergo cross-examination? Because of its relation to the other evidence?

Whatever made it powerful, the grand jurors appear to have accepted the narrative, or something close to it. To them, the distillation of all those inconsistent eyewitness accounts and all that forensic evidence was: force justified.

Saturday, November 22, 2014

Awaiting the Ferguson Grand Jury: Potential Charges

The latest out of Ferguson is that the grand jury investigating Michael Brown’s death won’t reach a decision until, at the earliest, Monday the 24th. Will the jurors indict Officer Darren Wilson? If so, what for? The community—and the country—cringe in anticipation.

Before that decision, here’s a quick look at potential charges against Wilson. We’ll have more analysis in this space once the indictment—or lack thereof—is announced. In that analysis, we’ll get into the issue of legally justifiable police-officer force. For now, though, here’s some law on first and second degree murder, and voluntary manslaughter.

First degree murder. In Missouri, murder in the first degree applies where the defendant kills “after deliberation upon the matter.” Prosecutors would seem hard pressed to prove that Officer Wilson deliberated about killing Brown before the confrontation began. It would be similarly difficult for them to establish that deliberation occurred during what appears to have been a very brief and highly charged encounter. (Mo. Ann. Stat. § 565.020.)

Second degree murder. The relevant part of Missouri second degree murder occurs where one person “knowingly causes the death of another” or causes death “with the purpose of causing serious physical injury.” The grand jurors might pick this charge if they believe that Wilson shot Brown to kill him, or shot him intending to injure him. There’s really no doubt that, whatever Wilson intended, he minimally tried to severely hurt the young man. (Mo. Ann. Stat. § 565.021.)

Voluntary manslaughter. But, an intentional killing without premeditation isn’t necessarily second degree murder. In broad strokes, voluntary manslaughter in Missouri applies where someone commits what would have been second degree murder had the homicide not occurred “under the influence of sudden passion arising from adequate cause.” The grand jury might choose voluntary manslaughter if it determines that Wilson and Brown had a significant battle, and that Wilson, enraged and full of adrenaline, intentionally killed the young man as it ended. (Mo. Ann. Stat. § 565.023.)

Of course, if the grand jury indicts, it could come up with some other charge—involuntary manslaughter, for example. It would be surprising, though not unfathomable, for a fact finder to believe that Officer Wilson caused Michael Brown’s death through recklessness or criminal negligence. What’s available to the public suggests that this was an intentional homicide. The issue is whether it was justified.

And we should soon know the grand jurys position on that issue.

Wednesday, November 19, 2014

Judge Offers Unique Perspective on "Innocent" Guilty Pleas

As anyone wrapped up in Serial can attest, criminal trials involving potentially innocent defendants make for great theatre. Even in audio-only format, the mystery is compelling, though—or perhaps precisely because—the outcome may be tragic.

But, as federal judge Jed Rakoff explains in the November 20 issue of The New York Review of Books, this kind of mystery doesnt always play out in court. Forget potentially innocent defendantsactually innocent ones sometimes plead guilty. (“Why Innocent People Plead Guilty.”)

We’ve previously discussed false confessions in this space. Though at first befuddling, the concept of someone wrongly admitting guilt soon after arrest begins to make sense. The tremendous psychological ploys known to law enforcement can get all kinds of information out of suspects. And sometimes that information isn’t reliable.

But that’s in the context of the interrogation room. Outside of that intimidating setting, one might think that an innocent defendant would know not to admit culpability. The opportunity to confer with a lawyer, and to reflect on the matter for days or weeks would seem to inevitably prevent a “false positive.”  

As Judge Rakoff details, though, sentencing laws give prosecutors all the power. Particularly in federal court, government attorneys can shape sentences with their charging decisions, have vastly more information than the defense in the early stages of a case, and often have no one to answer to. This positions them quite nicely, where they can offer take-it-or-leave-it deals with quick return dates. Leave it, and if you can later get any kind of deal at all, it’ll probably be much worse. Or you can go to trial.


Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.

Given those numbers, it’s not hard to see why a defendant might decide to play it safe. 

Many factors contribute to the false-guilty-plea problem. Rakoff explains them quite well, provides numbers, and even offers a solution (though admittedly not a cure-all). His perspective—formed by combined experience as a prosecutor, defense attorney, and judge—is certainly worth the read.

Tuesday, November 11, 2014

FBI’s Impersonation of Journalist Stirs Familiar Sort of Debate

Doomsday scenarios provide for the trickiest ethical debates. We’ve all seen the following challenge: “Well, would you oppose torture even if the police were trying to force the location of a ticking bomb out of someone who knew it?” One who denounces “enhanced interrogation” might refuse the premise, contending that the hypothetical has and will never come to pass. Or the opponent might argue that we’ve no reason to believe torture produces reliable information. Regardless of the words said, though, there’s little the opposer can do to convince the supporter. And vice versa.

But what if the issue weren’t torture, and instead law-enforcement members impersonating journalists? Perfectly fine in the name of safety? Absolutely reprehensible in all circumstances?

This is the debate playing out after the recent revelation that, in 2007, an FBI agent posed as an Associated Press reporter in order to nab a suspect. With apparent success.

“Here’s the Plan”

Timberline High School in Lacey, Washington had received several anonymous bomb threats. Local police sought out the FBI for help. The FBI knew just what to do: Play on the culprit’s vanity.

Agents didn’t devise the plan on a whim. Instead, as The New York Times reports, they consulted behavioral scientists working for the FBI. The scientists suspected narcissism; thus came the plot to engage with—and thereby obtain the location of—the person making those threats.

The agents gathered a search warrant allowing them to send an email with a link. That link, when clicked on, would reveal the threat-maker’s location. An AP-posing agent then engaged the anonymous suspect by email, ultimately sending him the link, to a fake article: “Technology savvy student holds Timberline High School hostage.” A click later and the agents had their man—or boy. A 10th-grader.

Demanding Circumstances

News agencies reacted to this story with outrage. The Times ran an editorial criticizing the FBI’s behavior. The Associated Press struck a similar tone, even seeking from Attorney General Eric Holder “immediate assurance that the Department [of Justice] will never again misrepresent itself as the AP.” On Monday, the AP went a bit further, demanding to hear that the FBI will “never again impersonate a member of the news media.”

FBI Director James B. Comey has called the news-reporter technique “unusual” and rarely appropriate. He also indicated there would be more exacting inner-agency review before agents could employ such a method today. But he stood by it.

“It’s Different”

Officers have always staged all kinds of ruses to catch suspects. An undercover cop tries to buy drugs from an apparent street seller. Or poses as a prostitute. The possibilities border on endless.

But everyone seems to agree—at least to some extent—that posturing as a journalist is different. A Reuters opinion piece nicely frames the anti-impersonation position. Though there may be other concerns (including safety for real reporters believed to be fakes), it seems the ultimate issue is a potentially chilling effect on speech. News sources who wonder whether reporters are government agents won’t talk. Without talking sources, journalists can’t do what they do so well—that is, expose closely guarded truth.

Of course, that position runs smack into the ticking-time-bomb challenge. And, if the Timberline High School incident is any indication, at least one counterargument is out the window. No one can say that impersonating journalists is inherently ineffective.