The fine is well below the cost of mounting a legal defense in a case that had become a symbol of trigger-happy regulatory prosecution. [Nick Gillespie/Reason, Ann Althouse, AP] Besides, Ted Frank argues, “Gibson was planning on setting up camp at the RNC to promote the problem of overcriminalization,” so the Obama administration gets something of value too in an election season.
More: “The Lacey Act: Protectionism Through Criminalization” [K. William Watson, Cato at Liberty]
Radley Balko on the John McNeil case from Georgia. By reversing some of the assumed racial valences, will it give partisans on both sides reason to think harder about both the value of self-defense rights and the importance of a neutral rule of law? Well, one can hope.
“Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people nationwide, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.” Among the cases: that of Santae Tribble, who spent 28 years in prison following a murder-robbery conviction based on claimed hair identification now known to be erroneous. [Washington Post, more]
Follow-up from the Post on the Justice Department’s lack of transparency; and see my colleague Tim Lynch’s post at Cato.
Many will breathe a sigh of relief following Judge Alex Kozinski’s new opinion for an en banc Ninth Circuit in United States v. Nosal, establishing that (contrary to some fears) the “anti-hacking” provisions of the Computer Fraud and Abuse Act do not penalize broad swaths of computer usage that exceed “authorized” use. A ruling the other way might have criminalized many instances of employee goofing-off as well as common user violations of website terms-of-service. [Orin Kerr, Volokh Conspiracy, Ken at Popehat] Earlier here, here, here, etc.
“How many times a day do you break the law?” That could be the title of a new Harvey Silverglate book, but it’s a concern that was already vexing Americans more than a century ago. [Kyle Graham]
A media organization has asked me to take a closer look at the controversy over Florida’s Stand Your Ground (SYG) law, and I’ll be working on that over the next day or two. In the mean time, here are a few links you might want to check out if you’re following the controversy (earlier):
- Florida’s law on justifiable use of force, including the 2005 SYG changes, is here. As usual, there is no substitute for reading the statute if you want to know how it works. Links to other state SYG laws are here.
- Michael Mannheimer at PrawfsBlawg points out that some of the law’s reputed new burdens on prosecutors aren’t in fact new:
First, some have pointed out that, in Florida, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, assuming the defendant has adduced sufficient evidence to present a jury question. But this is true in virtually every State: last I checked, only Ohio and South Carolina require a defendant to shoulder the burden of persuasion on self-defense. Some have pointed out that when a defendant claims self-defense in a homicide prosecution, the State has lost its best witness and the jury therefore hears only one side of the story. But this is true in any homicide case. …
So what are we left with that distinguishes Florida’s law? Well, obviously there is the “stand your ground” provision which eliminates the common-law duty to retreat. But the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development. Moreover, even where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions. …
- But Mannheimer also points to a more significant difference in the 2005 law, namely that the self-defense justification is couched as an immunity rather than as a defense to be raised at trial. This distinction does accord a significant advantage to some defendants, especially where prosecutors hold a factually weak hand at the outset. “Meg” from Cambridge, among the few constructive voices amid the NYT comments section’s baying mob, makes a similar point here.
- And a number of commentators raise plausible objections to details of the SYG legislation which do not appear relevant to whether George Zimmerman can escape prosecution for shooting Trayvon Martin. Thus Adam Winkler questions whether immunity should extend to situations where the user of deadly force acted in reasonable fear of lethal danger or forcible felony aimed at some third person other than himself (it would appear Zimmerman asserted danger-to-himself, not danger-to-third-parties, at the police station). And Anthony Sebok, writing at the time of the law’s passage, sharply criticizes the law’s expansion of immunity in home and car scenarios, again not at issue in the Martin case.
All of which is by way of clearing the decks for a closer examination of the provisions of SYG that do relate to Zimmerman’s claim of immunity, which will have to wait for a later post.
More evidence that innocent parents are in prison over infant deaths [Emily Bazelon, Slate; earlier here, etc.]
The New York Times invited me to participate in a “Room for Debate” discussion of Florida’s controversial “Stand Your Ground” self-defense law, and my contribution is here. I elaborate on some of the issues at stake — including the failure of Florida’s violent crime rate to rise as predicted under the law — in this Cato post (& welcome Instapundit, Reihan Salam/NRO, Alex Adrianson/Insider Online, Aaron Worthing, David Codrea readers).
Acquitted, but now homeless, in Des Moines [Des Moines Register].
The U.S. Attorney’s office in Los Angeles appears to be proceeding on the theory that city and redevelopment officers committed potential “fraud” by accepting federal money for housing projects but omitting to run the projects in compliance with laws like the Americans with Disabilities Act (ADA) requiring that accommodations be offered for disabled patrons. At Cato at Liberty, I wonder whether we’re in for another venture into criminalization of an area best left to civil law.
Deposed press lord Conrad Black is taking a public stand against the law enforcement and corporate-governance authorities that put him behind bars. [Andrew McCarthy/The New Criterion, earlier]
The 1972 Marine Mammal Protection Act bans feeding protected dolphins, seals and whales. A grand jury has now indicted licensed marine biologist Nancy Black, who sought to record the behavior of killer whales by rigging attachments to some killed prey that the predators were in the process of eating. Black’s attorney says she also faces a charge of lying to federal investigators because when asked to turn over evidence she gave them footage of the incident that she had already edited for reasons unrelated to the investigation. [The Economist]
Curious goings-on during the sentencing process of a Vero Beach, Fla. lawyer gone wrong. [Vero Beach News]