May 12 2015

HBO Doc on “Cannibal Cop” Shows Ugly Side of Net and Law

Last night HBO debuted its intriguing documentary “Thought Crimes” focusing on the Cannibal Cop case here in NY. The trial and the show exposed a dark side of the Internet, revealing chat rooms and websites devoted to discussion and fantasy about kidnapping, raping and even murdering women. But it also showed the potential danger of “Conspiracy” charges which can be brought even if a crime was not actually committed.

I’ve written about this case a number of times- most recently, in this post about a juror speaking out But let me quickly recap the case – Gilberto Valle was an NYPD cop and new father when he began going onto fetish websites that explored the above content. He would do so in the late evening into the early morning when his wife and baby were asleep. He would regularly discuss actually killing and eating his wife. Then things got even darker, he used an NYPD computer to access personal information about women he knew and went to college with. He began talking about specific plans to kidnap one who would be raped and killed. He said he had bought most of the items he needed and learned how to make chloroform at home. While he never actually did those last steps he claimed he did, he did take a trip and have lunch with the alleged potential victim. He told his chat room cohorts that he was excited to be “casing his first kidnapping.” He immediately reached out to them upon coming home from the trip to tell them what he learned.

thought.crimes.cannibal.cop_.766x432

When I wrote my first blog post about the case, a juror from the case reached out to me and as described in the above post, told me that the visit to the college friend and the use of the NYPD computer to get her personal information was enough to show that he moved from fantasy to planning an actual crime. Reasonable minds may differ on that, but the jury was unanimous that his actions fit the crime of conspiracy. A federal judge disagreed and reversed the jury’s verdict. That decision is presently on appeal.

And I think the government may very well win that appeal. Not because that’s necessarily what’s right in the case but because the law of conspiracy is a favorite tool of federal prosecutors and they will argue that future cases will be hampered if a jury can be readily second-guessed on whether the government has proven its case. For all its references to 1984 and “thought crimes” the HBO documentary did not do enough to explore how the US Attorney’s Office has had a mad love affair with “Conspiracy” since Ed Meese became Attorney General under Ronald Reagan. It’s a “Catch-all” crime that normally leads the top of a Federal Indictment precisely because it can be so easy to prove. In most cases, you need to prove that the defendant actually committed a crime. Under conspiracy law, you need only prove that the defendant discussed or planned a crime and then took one overt act towards committing that crime. The overt act could be (and often is) a perfectly legal act, like renting a car or purchasing rope.

Conspiracy is used in drug cases, weapons distribution cases, terrorism cases, even stolen car theft rings. It not only allows the government to arrest you and charge you even though no crime was committed, it also allows the government to ensnare people into large-scale criminal enterprises they were not actually part of. That’s because the other arm of conspiracy is that if you choose to do a crime with John Smith, let’s say a single drug sale, if you and John Smith get arrested, you could find yourself being charged with all of the drug sales John Smith has made in recent times as part of larger scale operation by being accused with “conspiring” with him. So even though you only agreed to sell one gram of coke, you could be charged with being part of a multi-kilo drug ring.

The feds get quick plea and cooperation deals from low-end members of the conspiracy when they see the time they are facing for what would amount to misdemeanors in State Court. Conspiracy is the bread and butter of the US Attorney’s Office and they are not likely to give up on it anytime soon. They will argue to the Second Circuit (the NY Federal Appeals Court) that whether one overt act was committed in furtherance of a conspiracy is a jury question and that a court cannot usurp the jurors’ functions in deciding if the acts proven by the government were enough. The Second Circuit would have to decide that no reasonable juror could have believed that using the NYPD computer and taking that trip to case his college friend were sufficient overt acts to justify the conviction. You can expect a vigorous argument by the US Attorney’s Office about the importance of conspiracy charges to prevent crimes from happening and to catch people before they commit public harm.

HBO was kind enough to thank me in the credits of the film for some background legal information I gave them and for facilitating an interview with the juror who contacted me after my blog post. The piece did a good job of showing how carefully the jury considered the evidence and the elements of the charge. In the documentary, the juror talked about how they understood that their verdict would change a man’s life forever and that they had to be sure before they pronounced him guilty. But she also said that they were confident when they were done that the evidence that Valle had crossed that line into actually planning a crime had been met. We’ll have to see if the Second Circuit agrees.

Follow me on Twitter @oscarmichelen

Apr 21 2015

Sorry But NY Chimp Case Is Waste of Time

NY Supreme Court Judge Barbara Jaffe granted a motion for a writ of habeas corpus to two chimps being held for research by Stony Brook University. The writ was brought by The Nonhuman Rights Project (NHRP) which originally filed a lawsuit on behalf of the chimpanzees in 2013 with a view to having them transferred to a sanctuary in Florida. In that instance the courts -exercising common sense and rational jurisprudence – refused to issue a writ. I wrote about that case here on this blog back in December 2013. The link to that post is here. I caught some abuse for being “Close-minded” or “simple” for failing to see the beauty in this “outside-the-box-argument” It’s not creative, its foolhardy and a waste of time. I said then that if NHRP brings another such action in NY they should be fined. I stand by that position and I repeat it. Judge Jaffe should have denied the writ and sanctioned NHRP for filing a frivolous lawsuit.

habeascorpusHowever, instead she issued the writ, meaning a hearing will now be held on May 6 in which the university’s lawyers will have to explain the legal basis of the chimpanzees’ detention. Why should they have to explain their legal holding of the animals for legal research? This is a monumental waste of everyone’s time and a completely illegal order. The chimps do not have standing because they are not human. Plain and simple. Courts and the Constitution are reserved for human beings. It’s so frustrating for someone who has filed writs of habeas corpus for wrongfully incarcerated humans which get routinely and flatly denied to see any court waste its resources and efforts on a case like this.

Let’s make one thing clear – if the NHRP had evidence that the chimps were being mistreated or abused, they have a remedy. File a complaint with local law enforcement for charges to be brought under the many numerous animal protection laws which are already on the books. If they feel that all animals being held in captivity or for animal research are per se being abused or mistreated, then they have to go through Congress or their local legislature to outlaw such activity.

But going to court on the chimps behalf is a wrong and insupportable method. Its a waste of court resources as the plaintiff does not have standing to bring it. While I can take a half of a semester to just deal with legal issues surrounding “standing” let me give you the five-cent definition of it: Standing is capacity of a party to bring a suit in court. Here State laws would define standing but at the heart of these statutes is the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is re-dressable in court. Legal actions cannot be brought simply on the ground that an individual or group is displeased with a situation or an activity that is going on somewhere. For example, Federal courts only have constitutional authority to resolve actual disputes (“cases or controversies”). Only those with enough direct stake in an action or law have “standing” to challenge actions or activities which they oppose.

Redress about general situations that displease you or situations that you would like to see changed (like animals being used for research for example) must be changed through political or legislative means. There are other serious problems with the case that are not readily apparent from the order. What has changed since NHRP last brought this action and which was denied? Why are they not bound by the prior denial? How are they bringing this in Manhattan (where Judge Jaffee sits) when the chimps are in Suffolk County?

Look, who doesn’t love chimps? But to use the courts – and even worse to use The Great Writ of Habeas Corpus- for what appears to be simply grandstanding is shameful. This case has a snowball’s chance in Hell of surviving past May 6 but if it does it has no chance of getting past the appellate courts.

Follow Oscar Michelen on Twitter @oscarmichelen

Apr 19 2015

FBI Report on Forensic Evidence is Horrifying

“HEADS MUST ROLL!” This should be the headline written on every newspapaer in the country about the recent report from the Justice Department about the FBI’s use of forensic hair analysis from 1980-2000. The Justice Department and FBI have formally acknowledged that 26 out of 28 examiners in a supposedly elite FBI forensic unit gave flawed testimony in almost ALL trials in which they offered evidence against criminal defendants. Did you hear that – 26 out of 28 forensic examiners – those guys/gals America worship watching the 100+ forensic-related TV shows currently on air – gave flawed or improper testimony in 257 out of 268 trials examined during the study. That’s 95% of all the trials examined!

They've got some serious explaining to do

They’ve got some serious explaining to do

Why isn’t this on every news channel? The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison awaiting execution. While the FBI and DOJ are quick to point out that there was other evidence in most of those cases, it cannot be disputed that an FBI forensic examiner testifying that hair found on the victim or at the crime scene matched the defendant was likley a strong fctor in the defendant’s conviction. Four defendants whose trials were invovled in this study have already been exonerated through DNA. And let’s get this straight – we are not talking about mistakes. We’re talking about falsely testifying to either the validity of the match and the statistics on hair evidence in general. The review confirmed that FBI experts systematically testified to the near-certainty of “matches” of crime-scene hairs to defendants, backing their claims by citing incomplete or misleading statistics drawn from their case work. In reality,as most good defense lawyers know, there is no accepted research on how often hair from different people may appear the same. But this line of questioning during cross-examination usually did not amount to much when you have a certified FBI forensic specialist up there on the stand attesting to the results.

Forensics is powerful stuff – it makes jurors comfortable that “They got the right guy.” Eyewitnesses could be wrong; snitches could have a motive to lie; andand circumstanes pointig to a defendant’s guilt could be just coincidence. But an FBI agent swearing to God that the hair matches the defendant and that the odds of it being anyone else are 100,000 to 1 is difficult to ignore. And in many states without their own crime lab, they would send the hair to the FBI for analysis and testimony. Defendants and federal and state prosecutors in 46 states and the District of Columbia are being notified to determine whether there are grounds for appeals.

This is the result of a review of the first 342 cases studied to date. An incredible 1,200 more remain to be examined. Of those 1,200, in 700 of them prosecutors and/or police have yet to respond to the DOJ’s request for trial transcripts and information. Let’s get this ball rolling people! People are sitting in jail and on death row based on forensic testimony that we now know is likely “flawed” (at best). And this is only “hair” evidence. The DOJ intends to also look at bite-mark and blood evidence for the same time period.

Kudos to The Washington Post which caused this study to be done in the first place. Federal authorities launched the investigation in 2012 after The Washington Post reported that flawed forensic hair matches might have led to the convictions of hundreds of potentially innocent people since at least the 1970s, typically for murder, rape and other violent crimes nationwide.

In a statement, the FBI and Justice Department vowed to continue to devote resources to address all cases and said they “are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI are also committed to ensuring the accuracy of future hair analysis, as well as the application of all disciplines of forensic science.” Great – in the meantime, it is highly likely that there are many innocent people sitting in jail. People who were put there on trumped-up and flawed FBI testimony. Peopel need to be held accountable, it’s as simple as that. That’s the best way to assure that this won’t happen again.

Follow Oscar Michelen on Twitter @oscarmichelen

Apr 17 2015

Copyright Lawsuit Filed Against Joss Whedon Over “Cabin In the Woods”

Filmmaker Joss Whedon is being sued for $10 million by a writer who claims they stole his idea for the hit horror film Cabin in the Woods.
Writer Peter Gallagher has filed the lawsuit against the Avengers director and his co-writer/director Drew Goddard.

In his lawsuit filed this week in Federal Court in California, the author claims he registered a book with the Writers Guild of America called The Little White Trip: A Night in the Pines – which came out five years before the 2012 movie. Registering with the Writer’s Guild of America gives an author a unique WGA number assigned to the work and it is proof of what the author is they claiming is their work. The lawsuit claims there are many similarities between the novel and the movie. But I think it will be a close call here and the complaint does not tell us enough for anyone to make a rock solid prediction as to the outcome of the case.

At first glance, it may appear that Gallagher has a strong claim due to the many striking similarities between the two works of art. But because copyright does not protect ideas and facts, or material traceable to timeless themes, copying alone is not enough to prove copyright infringement. To prove copyright infringement, a copyright owner must prove that the infringer copied protectable material. When courts are asked to determine whether infringement has occurred, they must disregard non-copyrightable elements (such as ideas, plot devices and historical facts) and compare the original protectable elements in the works. Unfortunately, as this case will likely illustrate, there is no simple test to distinguish unprotected ideas from protected expression.

copyright logoUnder copyright law, only an author’s particular expression of an idea, and not the idea itself is protectable. Several prior law suits have held that basic plot, stock settings and stereotypical characters (e.g., prostitutes with hearts of gold, sympathetic mob hit men, precocious witty children, etc.) are not protected by copyright. These devices or tropes — which are part of every novelist’s and screenwriter’s toolkit — belong to a common pool of literary techniques.

In a copyright infringement case, the plaintiff is required to prove that the defendant actually copied its work, and that the copying was so “substantial” as to constitute an unlawful taking of plaintiff’s work. Unlawful copying exists when there is not only substantial similarity between two works, but substantial similarity between protectable elements. Character names themselves are not protectable under copyright (though they may be under trademark law – but that’s a subject for a different blog article) but they can provide some clue that the earlier work was copied and they can add to the totality of copying to help the plaintiff get to the “substantial” threshhold.

Here is a table which details the 25 similarities the plaintiff is relying upon

1. Group of five friends who recently graduated from high school (two couples and one guy) go on a getaway to a remote cabin in the woods.Group of five college friends (two couples and one guy) go on a getaway to a remote cabin in the woods.
2. Female lead names are Julie (blonde and blue eyes) and Dura (brunette)Female lead names are Jules (blonde and blue eyes) and Dana (brunette).
3. The lead characters take a vehicle to a remote cabin in the woods.The lead characters take a vehicle to a remote cabin in the woods.
4. The cabin the protagonists are going to is referred to as the “Brinkley house.”The cabin the protagonists are going to is referred to as the “Buckner house.”
5. As the friends are on their way to the cabin, they run into a local townie (bartender) who warns them that something is wrong with the cabin and then directs them to its location. The townie is working for third parties manipulating the eventsAs the friends are on their way to the cabin, they run into a local townie (gas station attendant) who warns them that something is wrong with the cabin and directs them towards the location. The townie is working for third parties manipulating the events.
6.The friends arrive at the cabin The friends arrive at the cabin which does not have cell phone reception.The friends arrive at the cabin The friends arrive at the cabin which does not have cell phone reception.
7.The first night in the cabin the characters stumble on an old storage area (attic).The first night in the cabin the characters stumble on an old storage area (basement).
8. In the storage area the friends uncover some objects (toy figurines, dolls, and photos) belonging to the family that previously lived thereIn the storage area the friends uncover some objects (toy figurines, dolls, photos, and a diary) belonging to the family that previously lived there.
9. In the storage area, female lead (Julie) finds an object (Hummel figurine) that she would like to take.In the storage area, female lead (Jules) finds an object (amulet) that she would like to take.
10.While on their trip, the protagonists learn that the house belonged to a family (the Brinkleys) where the father killed the mother, and the rest of the family (three children) died.While on their trip, the protagonists learn that the house belonged to a family (the Buckners) where the father killed the mother, and the rest of the family died (presumably three children – Anna, Judda, and Matthew).
11. The protagonists begin to drink alcohol and to play games.The protagonists begin to drink alcohol and to play games.
12. At the end of that first night, one of the couples (Julie and Ian) go off to be together (upstairs to bed) and leave the other three alone, the courting new couple (Dura and Matt) and the odd man out (Sam).At the end of that first night, one of the couples (Curt and Jules) go off to be together (in the woods) and leave the other three alone, the courting new couple (Dana and Holden) and the odd man out (Marty).
13. The female brunette lead, Dura, has a romantic scene on a couch with the sensitive, shy male lead (Matt) in front of the fireplace.The female brunette lead, Dana, has a romantic scene on a couch with sensitive, shy male lead (Holden) in front of the fireplace
14. The female brunette lead Dura is getting over a relationship.The female brunette lead Dana is getting over a relationship.
15. The outsider male lead (Sam) who is not romantically involved with any of the females smokes marijuana and walks outside to look at the stars.The outsider male lead (Marty) who is not romantically involved with any of the females smokes marijuana and walks outside to look at the stars.
16. Female lead (Dura) gets attacked, stabbed, and killed off by homicidal Brinkley father that previously lived there.Female lead (Jules) gets attacked, stabbed, and killed off by homicidal Buckner father (zombie version) that previously lived there.
17. Male lead (Sam) is killed.Male lead (Curt) is killed.
18. To persuade others who are in disbelief of the first lead character’s death, a severed body part (arm) is shown as evidence. 19. 21.. 22. 23. 24.. 25. The “Director” reveals theTo persuade others who are in disbelief of the first lead character’s death a severed body part (head) is shown as evidence.
19. Male lead (Ian) gets attacked and killed off outside the cabin by homicidal Brinkley father that previously lived there.Male lead (Holden) gets attacked, and killed off outside the cabin by presumably homicidal Buckner father (zombie version) that previously lived there.
20. Lead male (Matt) begins to suspect that the group is being manipulated by third party “puppeteers.”Lead male (Marty) begins to suspect that the group is being manipulated by third party “puppeteers.”
21. Lead male knocks over a ceramic object (vase) and discovers a camera inside set up to observe the friends.Lead male knocks over a ceramic object (lamp) and discovers a camera inside set up to observe the friends
22. Only two protagonists remain, no couples, one male lead (Matt) and one female lead (Julie).Only two protagonists remain, no couples, one male lead (Marty) and one female lead (Dana).
23. It is revealed that the friends have been manipulated by third parties for a new form of reality filmmaking attempting to capture real fear in its subjectsLead character (Marty) suspects that he is being manipulated by a reality television show.
24. The third party manipulators celebrate a job well done. In the background large flat screens play horror scenes. It's an odd juxtaposition to the horror that has just happened.The third party manipulators celebrate a job well done. In the background large flat screens play horror scenes. It's an odd juxtaposition to the horror that has just happened
25. The “director” (film director) reveals the film’s twist, that the lead characters have been watched and manipulated by a crew of others for the enjoyment of viewers.The “Director” reveals the film’s twist, that the lead characters have been watched and manipulated by a crew of others for the enjoyment of viewers

Many of these are cliches which the Scream franchise has milked for laughs over the years. But it is quite a collection of similar plot themes and devices and there is some similarity in the character names. Gallagher can also show that Whedon may have access to his work because Gallagher sold it on the street in Whedon’s Venice Beach neighborhood. The book was very popular in the area and Gallagher followed its initial run of 2,500 with a second sold-out run of 5,000 copies.

Without more detail about each of the 25 items, it is hard to say if this claim will stick. Whedon’s team will likely argue that at best the plaintiff can prove that there are simialrities but hey are not substantial and that both of them used age-old teen horror movie plot devices to move their works along.

Apr 14 2015

Should Husband Be Prosecuted For Sex With Wife Suffering From Dementia?

Donna Lou Rayhons and her husband Henry Rayhons married late in life. Both widowed from their first spouses, they met while singing in the church choir and married in 2007 when they were both 70 years old. By all accounts it was very loving and kind relationship.But then Ms. Rayhons contracted Alzheimer’s Disease and had to be placed in a nursing home.

This week, in an Iowa courtroom, a jury will decide if Mr. Rayhons should be convicted of felony sexual abuse for having sex with his wife eight days after being told by her doctor that she could not consent to having sex. It seems that Ms. Rayhon’s daughter from her first marriage was suspicious that the couple was continuing to be intimate even though her mother could no longer remember her daughter’s name and scored zero on memory and orientation tests. The daughter wrote the following question on the bottom of her mother’s care plan: Given Donna’s cognitive state, do you feel she is able to give consent for any sexual activity?” The nursing home doctor wrote “No” and Mr. Rayhons was given a copy of the care plan with this Q and A written on it.

But was that the fair way to phrase that question? And is there a concrete answer? Did the doctor even ask Ms. Rayhons if she would want to remain intimate with her husband? In the NY Times article about this case today, reporter Pam Bellock cites that “Dementia’s symptoms fluctuate. Patients may be relatively lucid in the morning and significantly impaired in the afternoon.” Anyone who has had a family member go through this illness knows the truth of this statement; every day is a new day. Ms. Bellock also notes that “sexual desire may survive long after names and faces are forgotten,” citing several Alzheimer’s experts who say that physical intimacy can calm agitation, ease loneliness and even promote physical well-being in patients.

The article goes on at length to discuss the ethical dilemma facing nursing homes and recommends steps they can take to better assess their patients’ desire and willingness to have physical intimacy. I’ll leave those issues to the medical bloggers. My question is should the State be prosecuting this man?

The scale represents balancing justice with fairness

The scale represents balancing justice with fairness

78 year old Henry Rayhons has led a law-abiding, productive life. A corn and soybean farmer, he was also a popular Republican State senator, having been re-elected for nine terms. He was by all accounts, a loving, devoted husband to Donna (who passed away last year). He visited her every morning and every evening of every day. One night in May (about eight days after the care plan was provided to him) he went back to Donna’s room with her which she shared with a roommate. He pulled the curtain around her her bed. He was later seen on a security camera throwing out Donna’s panties in a hallway garbage can.
A roommate complained the following morning that she had heard “sex noises” coming from behind the Ms. Rayhon’s curtain. There was no evidence of resistance, physical abuse or trauma of any kind.

When he was interviewed by a State investigator after Ms. Rayhon’s daughter wanted charges pressed, Mr. Rayhon stated that his wife still enjoyed and occasionally asked for sex. When he was confronted with the hallway video, he admitted that he had sex with her that night. He was arrested and charged with Sexual Abuse in the Third Degree, a class C felony. That charge requires proof that The other person is suffering from a mental defect or incapacity which precludes giving consent. Given that Mr. Rayhon stated that his wife was capable on that night of consent, and given that I am certain that this prominent well-off man can retain several experts to say that Ms. Rayhon may very have been lucid and capable of consent that night, is this case prosecution-worthy?

I think the State Attorney’s Office should have taken a pass on this and recognized that this incident is not the kind of crime that the statute was intended to cover. It seems to me that not only is the case nearly un-provable beyond a reasonable doubt, Mr. Rayhons should have at best been given a warning that the doctor’s scratched response on the life care plan was enough to charge him criminally even if his wife gave what he considered consent. This prosecution seems driven by a need for notoriety from the State Attorney’s office. Let’s hope a jury sees this for what it is – a poor exercise of prosecutorial discretion.

Read Ms. Bellock’s intringuing article here: http://www.nytimes.com/2015/04/14/health/sex-dementia-and-a-husband-henry-rayhons-on-trial-at-age-78.html?_r=0

UPDATE: Since the publishing of this article, Mr. Rayhon has been found not guilty of all charges after a jury trial
follow Oscar Michelen on Twitter @oscarmichelen.com

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