Oct 08 2015

Creative Clinic Formed to Help Cyber-Harassment Victims

Last week, my alma mater, New York Law School, opened up the only pro bono law school clinic providing free counsel to victims of cyberharassment. The Tyler Clementi Institute for Internet Safety at New York Law School is named after the young New Jersey man who committed suicide after his college roommate shared surreptitiously recorded videos of Tyler having intimate sessions with another man. The Institute is a great move to try and deal with the growing number of complaints in this area and hopefully it will also help set parameters between permissible, legal, free speech and commentary and that conduct which crosses the line into stalking, defamation and invasion of privacy.

For years, folks have figured out how to use gaps in existing law to shame, harass, and intimidate others – mostly through the posting of private, intimate photos and videos without the other person’s consent. While society has tabbed this ugly demeaning practice “Revenge Porn” the phrase CyberHarassment is much more fitting. First of all because this is not “Porn” – because porn is consensual and Second of all this is not “Revenge” because revenge implies the target has done something to deserve revenge being extracted upon them.

CCRI_FINAL-02Currently only 26 states have some form of law specifically passed to target CyberHarassment and most of those have only come on line in the last year or two. Many of those laws are still likely to be found to be overbroad or applied in an overbroad manner leaving targets without an easy statutory tool to fight the harasser. For far too long, people who had been victimized this way by others, had no law to turn to. Holly Jacobs, who was herself a victim of this problem, founded the Cyber Civil Rights Initiative
which has a helpline to assist people around the country facing this issue. She also founded endrevengeporn.com, a website devoted to the topic which provides information and access to pro bono attorneys around the country. I have been listed on the site nearly since its inception and have helped dozens of victims over the years end the harassment and talked to and counseled even dozens more who just needed advice.

But that’s simply not enough for two reasons (1) Its hard for private lawyers to donate all the pro bono time necessary to this issue. So this new clinic will hopefully allow law students and clinic lawyers to fill the void in helping people understand what their rights are and what they can do to stop the harassing conduct; (2) Often those seeking help are asking for help in an area where help can’t be provided: just because someone posts something about you that is negative or hurts your feelings or outright insults you, that is not CyberHarassment – it needs to be more pervasive so as to constitute a pattern of conduct meant to harm you; or be defamatory; or been the result of an invasion of privacy. So I also hope the Institute will put forth seminars and informational pieces educating the public about the issue.

I admire New York Law School for taking this on. Its a great opportunity for those law students and recent grads who can’t find work in this current marketplace to be able to get some experience and help folks in need. Under the guidance of Professor Ari Waldman, I hope that the Institute will succeed in providing a place for CyberHarrasment victims to get counsel, advice and assistance; because its housed in a law school, I hope that it will also help clarify and define what is protected speech versus that which constitutes CyberHarassment.

Follow me on Twitter @oscarmichelen

Oct 06 2015

Get It Right The First Time- Successful Appeals for Bad Lawyering are Rare

The Supreme Court’s first decision of its new term highlighted the rarity of winning an appeal based on ineffective assistance of counsel. In Maryland v. Kulbicki the Supreme Court overturned Maryland’s highest court in upholding the conviction of a man convicted almost exclusively on faulty scientific evidence. James Kulbicki was found guilty of killing his mistress by shooting her in the head at close range. Other than motive (they were locked in a bitter paternity suit that was coming up for a child support hearing) all the prosecution had was that a bullet fragment found in the defendant’s truck matched a bullet fragment removed from the victim. FBI Agent Ernest Peele testified as the State’s expert on Comparative Bullet Lead Analysis, or CBLA. Peele testified that the composition of elements in the molten lead of a bullet fragment found in Kulbicki’s truck matched the composition of lead in a bullet fragment removed from the victim’s brain; a similarity of the sort one would “‘expect’” if “‘examining two pieces of the same bullet.’” Pretty strong evidence – except that it was contrary to a research study Pele had done and contrary to a lecture he and other agents had given on CBLA. One of the many findings of the report was that the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box. Rather than conduct “further research to explain the existence of overlapping compositions,” the authors (including Peele) “speculated” that coincidence (or, in one case, the likelihood that separately packaged bullets originated from the same source of lead) caused the overlap. This research and additional later research established that CBLA is completely flawed junk science and CBLA has not been used since 2003.

courtroom_1_md[1]But Kulbicki’s defense lawyers never found the Peele report that contradicted his own testimony. In fact they admitted that they conducted no research into any of Peele’s past writings or lectures. None. Instead they only cross examined him on the accuracy of his findings of the similarities between the two samples. The Maryland Court of Appeals held that this deficiency deprived the defendant of his right to effective assistance of counsel. The Supreme Court in a per curiam opinion (meaning it was issued by the entire court in agreement with no one judge delivering the opinion) held that it was too much to expect a lawyer in the days before the Internet to have found the Peele report. But that’s just not so. Kulbicki’s lawyers had shown that the Peele report on CBLA was well-circulated and discussed in forensic scientific conventions. The court seemed to completely overlook that part of their brief. And even before the days of the Internet, you could go to a public library and look up articles and books by author’s last names. I crossed alot of experts back in the pre-web 90s using material I found in something called the card catalog and the Periodical Review, which listed every magazine article by subject and author’s name. My bosses would have hung me out to dry if I tried crossing an expert without doing some research to find out if he had written anything about the subject that would be useful in cross.

But the Supremes reminded us all that the Constitutional right to an effective lawyer does not mean you get a perfect lawyer or even an excellent lawyer. It only means you get an adequate lawyer. And just because your conviction was based on now-defunct junk science that was not subjected to any cross examination doesn’t change that. Its just the latest line in a string of cases from this court that narrowed what it means to have effective counsel.

Just this past week, I received a denial of my own appellate client’s ineffective assistance of counsel claim. The many failings of his trial lawyer were labeled “trial strategy” and my skewering of the stupidity of the strategy was defined as “hindsight.” In the three cases of wrongful conviction I have handled, poor lawyering was a key source of the wrongful conviction. Yet all three defendants (all of whom were later exonerated) appealed their convictions to courts that only paid casual lip service to the ineffective assistance of counsel claims.

So what’s the message? The initial trial, the initial lawyer – remains a defendant’s best shot. Counting on an appeal based on poor lawyering is a mistake. Litigants would be wise to spend time choosing the right lawyer first time around. Ask questions, interview as many as you can, get involved in your case and his strategy because its like that Billy Joel song says – “Get it right the first time, that’s the main thing.”

Follow me on twitter @oscarmichelen

Sep 23 2015

Harsh Yelp Review Leads to $1,000 Damage Award But Biggest Harm is to Free Speech Rights

Emily Fanelli hired a company called Mr. Sandless to refinish the floors in her Staten Island home for a fee of $695. Fanelli wasn’t happy with the finished product, or the “corrective actions” the company took after she complained. So she did what many other disgruntled consumers have done before – she complained online.

She started on silive.com, where she had found Mr. Sandless in the first place, and blasted the company and its owner, Matt Gardiner, calling him “a liar and a con artist.” She then went on the customer review website Yelp, where she went on a typical Internet rant complete with grammatical issues galore:

“this guy mat the owner is a scam do not use him you will regret doing business with this company I’m going to court he is a scam customers please beware he will destroy your floors he is nothing by a liar he robs customers, and promises you everything if you want s— then go with him if you like nice work find another he is A SCAM LIAR BULL—-ER,” she wrote.

yelpStill upset, she went on Yelp two weeks later, complaining about her floors and urging anyone thinking of hiring Gardiner to email her for more information. Gardiner filed suit in Staten Island Supreme Court seeking $750,000.00 in damages. Judge Phillip Straniere ruled in Gardiner’s favor finding that Fanelli crossed over the line from commentary to libel:

“Terms such as ‘scam,’ ‘con artist’ and ‘robs’ imply actions approaching criminal wrongdoing rather than someone who failed to live up to the terms of a contract. They were personal in their invective and were designed to impugn his integrity and business practices with the intent to damage his business reputation,” Straniere wrote.

I guess Judge Straniere doesn’t spend a lot of time on the Internet or at least in reading the comments that follow posts. Would anyone reading Ms. Fanelli’s posts really believe she meant that Gardiner was actually “robbing” her of actually participated in a “con game?” Of course not. Most folks would understand something we lawyers call “CONTEXT.” And on an interesting note – the same judge found that Gardiner was not entitled to $400 owed him because he was unlicensed at the time of the work he did for Ms. Fanelli. So why isn’t that a “con”? It is illegal to perform contracting services without the proper license so did Ms. Fanelli use “truth is a defense”

Matters of opinion are protected speech. Any clear reading of Ms. Fanelli’s posts would see that she was engaging in her First Amendment right to criticize others. I would also have liked Judge Straniere to point out that the plaintiff got a whopping $1,000 less the $400 he couldn’t get, for a total net gain of $600. I hope Ms. Fanelli reaches out to eh ACLU or the NYCLU for help in an appeal. In fact Yelp should offer to pay for it as well because if over-the-top rants on Yelp can be actionable – then we are going to need to build bigger courthouses.

Follow me on Twitter @oscarmichelen

Sep 17 2015

Cops Arrest 13 yr.old Boy for Kissing 14 yr.old Girl on a Dare.

Last week, in a junior high school outside Baltimore, Maryland a 13-year-old boy was dared to tongue-kiss a girl. So he ran up to her grabbed her by her shirt, pulled her to his face, stuck his tongue inside her mouth and ran away. School officials were alerted by the girl and they called in the cops. The police arrested the boy and charged him as a juvenile with second-degree assault, a misdemeanor under Maryland law which makes it a crime to have unwanted physical contact with another person regardless whether it causes physical harm.

My only question is this:


While there has been much discussion about the growing concern of criminalizing adolescent behavior cops in Pikesville, Maryland have apparently not gotten the message. When dealing with adolescents the police, prosecutors and courts are given wide latitude and discretion to make sure they are not going overboard when dealing with young teens. To be sure, having some young Lothario ram his tongue unwillingly down your throat is offensive and there should be consequences. He should be disciplined by the school – since it happened on school grounds- he should be required to apologize to the victim and he should be required to undergo training and education about appropriate versus inappropriate behavior. Slate pundit Christina Cauterucci has called this approach dismissive ina recent article she wrote about the kissing bandit case. She correctly points out that actions of the boy make out the elements of the crime the same way that one kid punching another int he face would.

She's supposed to blind  not stupid

She’s supposed to blind not stupid

But sorry Ms. Cauterucci, handcuffing him and dragging him through the crowded, ineffective maze of the Baltimore Juvenile Justice Center is pure overkill. We need to be able to separate young foolishness and peer-pressure bravado from criminality. News reports of this trend of making crimes out of teen conduct can be found easily: in places all over the country we have seen juveniles arrested for child pornography for sending their girlfriends naked pictures of themselves; in Virginia an 11 year old was recently arrested for drug possession for bringing a single pot leaf to school(BTW it wasn’t even weed after all though the cops tested it no less than three times just to make sure); and a South Carolina teen arrested for shooting a dinosaur(in a story he wrote)

I suspect Christina Cauterucci and any others who think this was a wise move have never had to deal with parents and a child charged with crime for what has previously passed as inappropriate but common adolescent behavior. That child is stigmatized in school and his neighborhood; shunned by kids and other parents alike; and they become the victims of rumor that blow up the initial event by repeated innuendo “I heard he also grabbed her breast” “My friend Tommy’s cousin’s neighbor saw the whole thing and he says the kid tried to get her to grab his penis too.” Trust me I am not kidding I have dealt with this time and time again in my office over the recent years. Parents have to pay for a lawyer; take their child to Juvi Court where they will be placed in the same courtroom with kids who are in gangs, use guns, and deal drugs; and still deal with the school disciplinary system which is where the case should have gone and stayed exclusively.

But in today’s world of “Zero Tolerance,” we arrest first and ask questions later. Just ask the Texan Muslim boy who was detained and handcuffed this week after bringing in a a homemade clock

Sep 16 2015

Fed Ct: 1st Amendment Protects Profanity Written on Speeding Ticket

We’ve all been there – you get a speeding ticket you feel you didn’t deserve (basically every speeding ticket ever written to me) and you just wish you could tell the Traffic Agency to “F*ck Off” as you mosey up to the window to pay your fine. Well, three years ago, Willian Barboza, who was a 21-year-old student at the time, did one better when he received a speeding ticket in Liberty, New York. When he mailed in his payment to the Town Clerk, he scrawled “Fuck Your Shitty Town Bitches” on the payment form. In a clever, insightful move, he scratched out “Liberty” and wrote in “Tyranny” on the ticket as well. Here’s a shot of Mr. Barboza’s handiwork:


Isn’t truth a defense?

The clerk gave the form to Judge Brian P. Rourke who was not amused and who promptly ordered Barboza to appear before him on October 18, 2012. At the appearance, Judge Rourke charged Barboza with Aggravated Harassment and Barboza was him held on $200 bail. Barboza spent five hours locked up waiting for the bail to arrive. Luckily for him, Judge Rourke recused himself from hearing the case since he was a party to the action. When the case eventually came to trial in March of 2013, Judge Ivan Kalter summarily dismissed the case stating:

“No [legal] citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected.”

Yeah, after all you only need look at the very First Amendment. In declining to dismiss his Federal Civil Rights claim against the Town of Liberty Judge Cathy Seibel of the Southern District of New York wrote:

[T]hough crude and offensive to some, [what Barboza wrote] did not convey an imminent threat and was made in the context of complaining about government activity. The words here are not inherently likely to provoke violent reaction, they were not directed at anyone in particular, and could not be interpreted as threatening any particular action. ”

There is lots to take away from this case but here is my top three:

(1) So much of what happens in law can be luck of the draw. Had Judge Kalter been the first judge who got the complaint, the case would never had been brought;
(2) Clerks cannot make law but “Clerk law” is every litigator’s nightmare. Clerks will reject your papers, demand more paperwork than the law requires, or make you do things in a different way than you have done it for 30 plus years because “That’s the way we do it here.” Believe me that Kentucky clerk Kim Davis is not the only clerk who does what she wants regardless of what the law says. So here, some clerk thought this was a crime and next thing you know, a guy’s arrested and prosecuted for no reason;
(3) Even though this was almost entirely the judge’s and the prosecutor’s fault for choosing to ignore the First Amendment they cannot be sued because they are protected by immunity. While immunity is important so that these public officers can act in the way they think is right without fear of constantly being sued, there ought to be an “extremely asinine” exception to immunity when the conduct is this outrageous. Judge Rourke is still on the bench and even got a big raise recently

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