Constitutional Law, Guns / Firearms, Privacy, Technology

3 Notable Legal Stories From The Short Week

Last week, I tested out a longer-form article picking up other stories from the week and stuff that got overlooked and put together a sort of “week in review.” Folks seemed to like it according to our handy-dandy analytics, so we’re trying it again to see if it was just a fluke of the busiest legal news week of the year.

So here are three bits of legal news from the holiday-shortened week that was, including the George Zimmerman trial’s technical difficulties, a lot of butthurt FISA judges, and… wait, is that an honest to God Third Amendment case?!?

1. The whole damn system is out of order!

The George Zimmerman trial has, so far, resembled just about anything but a tragic murder trial. It opened with a knock-knock joke and little did we realize at the time that Zimmerman’s attorney Don West was just trying to set the tone.

Next came a dispute over an Instagram picture trolling the prosecution as representing “stupidity.”

The picture was posted by West’s daughter Molly and included the caption: “We beat stupidity celebration cones #zimmerman #defense #dadkilledit.” Either she thinks murder trials should have a lot more one-liners and pie throwing or she did not watch the same opening statement the rest of us did. The initial firestorm over the photo died down when the elder West explained that the picture was not taken in connection with the trial and that he had nothing to do with the caption. He can’t control what his daughter does after all.

But the whole episode actually put the opening statement into perspective. If you thought telling a joke in front of grieving parents at the outset of a client’s murder trial was a one-off screw up, think again. The photo provides insight into the West family culture and what it showed is that the Wests consider criminal defense as little more than a game filled with snark and sophistry (kind of like this website, but we aren’t proposing to defend a murder trial with this schtick). Maybe that’s a coping mechanism for West. Or maybe he’s just a sociopath. Place your bets.

This week, the prosecutors decided Don West can’t have all the fun and decided to bumble the case in their own way. On Monday, prosecutors put George Zimmerman’s Social Security number and address up on a screen for about 23 seconds. Since the trial is being broadcast live, because cable news media is drawn to live court feeds like vultures, Zimmerman’s personal information went out to the world at large. Or at least the world watching CNN, so the good news for Zimmerman is that absolutely no one saw it because almost everyone was watching Fox. But if anyone is looking to steal George Zimmerman’s identity — and who wouldn’t want to pose as a guy facing a murder rap — the prosecutors and CNN will get credit for the assist.

For an encore, the week ended with the decision to call a witness, Professor Scott Pleasants, via Skype. It wasn’t a terrible idea, except the Internet has a large roster of what Alfred Pennyworth called “men who just want to see the world burn.” All of those people have a home and it’s called 4chan. Through that board, the Internet started sharing the details of just how they could all muck up the trial, so people started calling into the Skype conversation, creating a cascade of popups and irritating pings. The judge was not pleased:

Even the losingest lawyer of all time, Hamilton Burger, thought that was a rookie mistake.

The problem is lawyers are ill-equipped to deal with the era of the interactive spectacle. TV shows now place Twitter hashtags in their bugs. The modern audience expects to interact with what it’s watching. And when the news puts it on TV all day, the audience will obviously spread a mistaken glimpse of a Social Security number around the world in seconds and jump into Skype testimony to ground the trial to a halt.

So, not a good week for anyone involved with this trial. Perhaps they can “beat stupidity” next week.

2. Look, rubber stamping is hard to do.

The Foreign Intelligence Surveillance Court (sometimes called the “FISA Court”) has had a rough go of it over the last several weeks. From authorizing the seizure of the Associated Press’s phone records, the running of PRISM to capture cell phone metadata, and probably that future-telling machine from Person of Interest, people are pretty fed up with the court that’s supposed to curb unwarranted government intrusions but instead gives the government what it wants 97.7 percent of the time.

To borrow from the old saw about grand juries, you can get an all-encompassing technological dragnet over a ham sandwich.

Some people don’t take kindly to calling the FISC a rubber stamp, and those people are the judges who held those rubber stamps and sat on the FISC:

[Judge Royce] Lamberth, who led the secret Foreign Intelligence Surveillance Court from 1995 to 2002, has no regrets when he talks about that court’s business. The court is in the news again for blessing nearly every Justice Department surveillance request, even for dragnet email and phone monitoring of American citizens.

Just about the only criticism Lamberth has is that the intelligence community and the Justice Department are not doing enough to defend the judges on the secret court.

“What I found that bothered me is the notion that the court was a rubber stamp because we’re approving so much,” the judge said. “We’re approving it because it should be approved, because it’s valid, because what the government’s doing here is the kinds of things we should be doing.”

And he should know because he sat there and listened to the government provide its one-sided explanation of how awesome it was. Joining Judge Lambert in telling America we’re all meanies for daring to question the 97.7 percent agreement between the court and the government is another former chief of the FISC, Judge Colleen Kollar-Kotelly, who blasted the NSA itself for explaining how the FISC operated:

Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.

“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”

So to sum this up:

Leave the FISC Alone!

In fairness to the judges, as Judge Kollar-Kotelly indicates, wiretaps are mostly rubber stamped in every court. The difference is that in a run-of-the-mill criminal proceeding, the government has to successfully prove its case within defined standards that everyone can look up. Meanwhile, no one has any idea what even the broad brushes of the FISC rulings are. A bipartisan group of Senators is trying to get the opinions declassified, so we’ll see.

Lots of wiretaps should be granted because there are valid reasons to tap people. But when the standards are concealed by a court that traded in its gavels for rubber stamps, it’s hard to know whether the government is overreaching or not.

On the next page, maybe there is hope for that boutique Third Amendment practice after all…

(hidden for your protection)

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