Nov 25 2014

Kid Glove Treatment of Officer Wilson Big Reason Behind Grand Jury Finding

I know its late in this rapid-fire digital age to be posting about Michael Brown. After all, all the talking heads on TV have been blabbing on about their “expert opinions” all day. But unlike them I actually have a practice and was in court all day. I also find it interesting that many of them have never presented a case to State Grand Jury or defended a person testifying in a State Grand Jury. I can tell because many of them are referring to Federal grand juries (very different) and most of them seem to have just gotten past puberty.  But much of the noisy punditry has failed to explain to the public the rarity of a “No True Bill” finding from a Grand Jury.  To summarize my opinion, it seems to me that this Grand Jury was set up to clear Officer Darren Wilson from the beginning.

But first a brief explanation of the Grand Jury process in Missouri which is very similar to the Grand Jury process in  New York.  A grand jury is an arm of the prosecution’s office, it is not a body of the court.  In Missouri, a grand jury judge selects twelve people to serve on the GJ for about a month during which time they hear evidence on a number of cases.  This specific GJ’s term was extended in order for it to hear the Michael Brown case. 9 out of 12 must vote in afavor of a verdict.  In NY, a GJ is made up of 23 people who serve for about a month and 12 of those 23 must vote in a particular way in order for their to be a verdict. If the GJ finds probable cause that a crime was committed and that the defendant committed the crime, the GJ votes an “indictment”; if not the GJ votes “No True Bill.”

Unless the defendant testifies, the defendant is not allowed to be present in the GJ; neither is his counsel.  If the defendant elects to testify, he can still not be present for the rest of the GJ presentation so he goes in not knowing what other evidence has been presented. His lawyer cannot ask questions and cannot even object. He is there only if the defendant wants to seek counsel from him during his testimony.  In NY prosecutors are bound by the rules of evidence  but that’s apparently not the case in Missouri.

But the most important thing about the GJ is that it is the prosecutor’s show: there is no judge present and he operates in secrecy. The GJ is in total control of the DA. I am almost obligated at this point to mention that Judge Sol Wachtler, the former Chief Judge of the State of New York , was quoted as saying, “A grand jury would indict a ham sandwich,” (See People v. Carter, 77 N.Y. 2d 95, 107 & n.1 (1990) (Titone, J., dissenting). This is perhaps the most overused and cliched phrase in the criminal justice system, but that’s probably because it is so true.

But that also means that the GJ could choose not to indict a ham sandwich charged with containing ham. Because HOW a case is presented is as important as what evidence is presented. The tone, demeanor and attitude of the presenting prosecutor can greatly effect the outcome of GJ presentation. The GJ provides a nice vehicle for a DA to “wash his hands” like Pontius Pilate if a case is weak or if he thinks he is on weak legal ground. It provides nice cover. But a potential defendant testifying in the GJ is normally a prosecutor’s dream – its like school field trip to the zoo in 5th grade.

In this case, though, Officer Darren Wilson, was treated with kid gloves. There was tremendous opportunity to attack his testimony and credibility by confronting him with physical evidence that contradicted his testimony. That did not occur here. He was led through th evidence, time and time again. Some simple points: he was purportedly punched hard, with full force , twice by Micahel Brown (who he described as a “demon: and Hulk Hogan”) yet Wilson had no injuries that would reflect that kind of assault. The hospital record shows him as being “in no apparent distress” and “well-appearing.” It also reports no lacerations, no bleeding and no bruising. How about confronting Wilson with some of this? Or with his photos which show him to be looking like someone who was not punched in the face twice by a large man.

Darren Wilson front face



Darren Wilson side face

How he was punched on the right side of his face while in his car is another point to have been addressed. Maybe he could explain it, but perhaps a strong cross on these areas would lead him to move off his rehearsed and prepared testimony. That’s how you get at the truth.

But instead, his testimony was dealt with as a direct examination with no cross-examination. Presenting a potential target to the GJ is fraught with danger. Seasoned, hardened defense lawyers shake in their shoes when they walk their clients in because they simply don’t know what they are going to be hit with so it is extraordinarily difficult to properly prepare them for the testimony. I know I dreaded it  the rare times that I have done it in my practice.But here, there were no surprises for Wilson. He was never caught off guard or pressured about inconsistencies. Almost all of the questions were softballs made to have him elicit favorable testimony to his cause. It makes me wonder – was he spoken to by the DA’s office in preparation of his testimony? Did the DA’s office share with his defense counsel the evidence they had and how it was to be presented to the GJ?

There were other instances where Wilson should have been pushed, like when he admitted that there was a period of time after he first shot Brown that Brown was down yet Wilson did not then go for a taser or other less deadly means of stopping Brown. He said Brown got up and “charged at him” – although he testified that this “charge” consisted of taking precisely one step towards him – and then he repeatedly fired at him. There was ample room for a vigorous cross on this and many many other issues during Wilson’s testimony which the presenting DA  just accepted and moved on.

So it is a bit of joke for DA Bob McCullough to stand before Ferguson, Missouri and say “All the evidence was presented.” Its not what was presented Bob, its how it was presented. Any criminal defense lawyer would love to have his client treated in the manner that Wilson was handled in the GJ. But that does not happen – which is why “No True Bills” rarely happen – unless of course, that’s the particular flavor of ham sandwich the prosecutor orders.



Nov 19 2014

US Court Deduces That Sherlock Holmes Is Now Public Domain

A US Federal judge has ruled that iconic literary character Sherlock Holmes and the most familiar elements of his stories are in the public domain.  But what’s as important is that  in a strongly worded opinion the court criticized the Arthur Conan Doyle estate for its troll-like practices.

It’s the third time an American judge has found in favor of the case brought by Holmes scholar Leslie Klinger in 2013. This time however, he was also awarded nearly $70K in legal fees.

The Conan Doyle estate has maintained that because of that , people who create any stories featuring the character must pay a licensing fee, based on the copyright of the last stories. But it’s a copyright, not a trademark – meaning that the copyright of the initial characters should be established by the date of their FIRST publication not their last. Only the newer elements – characters and certain plot devices perhaps that appear only in the LAST stories shoud get the protection unitl 2023.

Holmes and Watson  Free at Last!

Holmes and Watson
Free at Last!

Klinger coedited a pending anthology of new Holmes stories  with Laurie R. King. The anthology, coming from Pegasus, collects new stories inspired by (and including) Sherlock Holmes from writers like Michael Connelly,  Harlan Ellison and  Jeffery Deaver among others. They contain no elements or characters from the last ten stories. The Conan Doyle estate contacted publisher Pegasus and stated that if it weren’t paid a licensing fee, it would take steps to block the book’s distribution. Here is an excerpt from their cease and desist letter:

“If you proceed … to bring out [the book] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with these compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.”



Klinger decided to go on the offensive and bring a declaratory judgment action against the estate, arguing that Sherlock Holmes and the other familiar elements of his stories — trusty sidekick Dr. Watson, arch-nemesis Dr. Moriarty and  the sleuth’s  famous address at 221B Baker Street — should all be free to use.

Klinger has been on a roll. In December 2013,  U.S. District Judge Ruben Castillo (Chief Judge of The Northern District Court of Illinois) found in favor of Klinger. Then,  in June 2014, Judge Richard Posner (of the 7th Circuit Court of Appeals, covering Illinois, indiana and Wisconsin) sided with Klinger in the Estate’s appeal of Castillo’s ruling.

And now, Posner has issued another opinion awarding Klinger more than $69,000 in legal fees while sharply criticizing the business practices of the Conan Doyle estate, calling them “disreputable.”

“The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked … only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice — a form of extortion — and he is seeking by the present motion not to obtain a reward but merely to avoid a loss.”

My battles with copyright trolls are well-known ( at least in my close circle of friendsand clients). I am the legal advisor to the site (ELI) which chronicles copyright trolling behavior and offers a vibrant discussion forum where troll victims can find solace and solutions. ELI and I have often been vilified in public and in private by our adversaries for using the word “extortion” to describe trolling tactics. To see the word used by a Federal Appellate Judge in a published opinion warms my lawyer’s heart and makes me feel vindicated.

Trolls suffered another defeat last month when Federal Judge Thomas Rice ruled that high statutory damages in cases involving minimal infringement would amount to “excessive fines” prohibited by the 8th Amendment to the Constitution. In that case, film copyright owners brought a massive number of suits against folks who downloaded their films via BitTorrent. Many downloaders did not answer and the plaintiffs entered default judgments against them. in deciding the damages to award to the plaintiffs, Judge Rice rejected their request for $30K  in damages for each defaulting defendant and $23K in legal fees in total. Instead, Judge Rice awarded $750 in damages (the statutory minimum) and only $2,500 in legal fees stating taht these numbers were more proportional to the wrong done by the defaulters. This is an argument that ELI and I and other similar sites like and have been making for years. To see this recognized in a Federal opinion is also a huge victory. It’s an early Christmas for troll-fighters!

I will certainly be citing and referring to these two strong opinions in my future troll defense cases. As for Holmes, Watson and Baker Street, they’re now free for the world to use.

Nov 06 2014

Fishy Case Makes SCOTUS Question Feds Prosecutions

The US Attorney’s Office took a beating in oral arguments before the Supreme Court yesterday over a case involving illegal fishing. The case shows how the Office often stretches the language and meaning of criminal statutes to cover actions that were never meant to be covered by the statute.  I have never been a fan of criminal statutes that get named after somebody  as they are usually a reaction to one particular criminal event and then get used to encompass a whole set of other events that have nothing to do with the original crime. While that scenario usually applies to laws named after victims of  horrific crimes, its also applicabel to laws named after the Congressmen who passed them.

The case I am talking about involves a ludicrous application by the US Attorney’s Office of a particular section of the Sarbanes-Oxley Act, passed to fight corporate fraud after the Enron Scandal. The Sarbanes–Oxley Act of 2002, also known as the ‘Public Company Accounting Reform and Investor Protection Act’ (in the Senate) and ‘Corporate and Auditing Accountability and Responsibility Act’ (in the House) sets new or enhanced standards for all U.S. public company boards, management and public accounting firms. The sections creating criminal penalties for corporate fraud including manipulation of records to avoid or obstruct prosecution, were made particularly severe but were not limited to public companies, justbusinesses”  

Section 1519 of the Act states:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. 

As you can see this language is very broad and sweeping. It doesn’t just cover public companies, it doesn’t just cover corporate fraud; it covers anyone destroying any “record, document or tangible object”  with the intent to obstuct a prosecution by any Federal agency. A recipe for trouble that snared a local fisherman in the govenrment’s net.

These guys could get you 20 years in jail .  Photo Courtesy of

These guys could get you 20 years in jail .
Photo Courtesy of

A fish-and-wildlife officer found 72 grouper that appeared to be less than the 20-inch minimum size limit on John Yates’s commercial fishing boat  The game officer issued the fisherman a civil citation and ordered Mr. Yates to bring the fish back to port. Instead, Mr. Yates told his crew to throw the fish overboard and replace them with bigger fish that met the size requirements, according to the complaint. Yates was arrested and charged with violating Section 1519 of the Sarbanes Oxley Act.  After all, the government alleged, he “destroyed” “tangible objects” “with the intetnt to impede” “the investigation” “of a department or agency of the United States.” He was convicted and sentenced to 30 days in jail and five years probation.   The appeal went up to the Supreme Court and was argued yesterday. While all the judges had questions for Mr. Yates’ lawyer (except Justice Thomas of course), those questions were relating to elements of statutory construction. In other words, was the term “tangible objects” limited by the two terms in front of it: “record” and “document” so that Congress meant “tangible objects” like record or document or did “tangible object” maintain it its normal meaning – anything you can touch. But the judges reserved their principal tounge-lashing for the government.

While they focused a great deal about the intent of Congress in passing the bill, the really interesting exchange came when Justice Scalia and Justice Ginsburg talked about the potential 20 year sentence the statute contains. The Justice was very aware that federal judges have broad sentencing power and appellate courts have very limited review of that power if a judge sentences a defndant to a sentence that is contemplated by the statute.  So Scalia was worried about the exercise of prosecutorial discretion in this case to bring the complaint under Sarbanes Oxley (with its 20 year penalty) as opposed to other Federal criminal obstruction-of-justice statutes which usually have 5 year maximum penalties. The exchange forced the US Attorney arguing the case to reveal a dirty little secret of the government’s operation – in deciding to prosecute they are told to seek the statute that provides the greatest   penalty to the defendant. So first Scalia deflected the AUSA Roman Martinez’s argument that its Congress who decided to put 20 years onto the statute nothis office:

JUSTICE SCALIA:  No, I’m not talking about Congress.  I’m talking about the prosecutor.  What kind
of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?
MR. MARTINEZ:  Your Honor, we did not ask for 20 years in this prosecution.  And let me try to explain . . .

That led to the following exchange between Justice Ginsburg  and Martinez:

JUSTICE GINSBURG:  You charged two offenses . . .  Is there any guidance that comes from  [The Department of] Justice to prosecutors?  I mean, the code is filled with overlapping offenses.  So here’s a case where the one  statute has a 5 ­year maximum, the other 20.  The one that has the 5­ year clearly covers the situation.
Is there anything in any kind of manual in the Department of Justice that instructs U.S. attorneys  what to do when there are these overlapping statutes?

MR. MARTINEZ:  Your Honor, the ­­my  understanding of the U.S. Attorney’s Manual is that the
general guidance that’s given is that the prosecutor should charge ­ once the decision is made to bring a criminal prosecution, the prosecutor should charge the ­­ the offense that’s the most severe under the law.
That’s not a hard and fast rule, but that’s kind of thedefault principle.  In this case that was Section 1519.


So the government doesn’t choose the statute that most closely fits the crime – rather it chooses the staute that gives the defendnat the most exposure to jail time. That rightfully sent Scalia off in a tizzy:

JUSTICE SCALIA:  Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive those statutes are.  I mean, if you’re saying we’re always 9 going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

MR. MARTINEZ:  Your Honor, that’s ­­. . .

JUSTICE SCALIA:  Or ­­ or how much coverage I give to severe statutes.

The Court spent much of the balance of the argument mocking the government’s position that Sarbanes-Oxley was meant to cover such cases, asking about picking daisies in a National Park and then throwing them away as park ranger approaches for example. Justice Kennedy joked that perhaps the statute should be changed to the Sarbanes Oxley-Grouper Act.

While the Court showed clear distaste for the application of this langauge to these facts, criminal practitioners know that these types of cases are heard in courtrooms every day.  Prosecutors – especially Federal prosecutors- have incredible power to wield a 20 year count over a defendant’s head by charging them with obscure statutes never meant to cover the conduct alleged. That’s part of tye reaosn so many cases end inpeas. Credit goes to Mr. Yates for having the courage and tenacity to stare down a 20 year sentence and take his case to trial and all the way to SCOTUS. Hopefull the oral argument inthis case will shed some light on the Dept. of Justice’s misguided policy and have DOJ instead look to exercise its discretion to find the law that most closely fits the cirme.


Text of the full argument is here:



Nov 03 2014

Appeals Court Recognizes First Amendment Rights of Professor to Complain About Treatment of Adjuncts

In case you haven’t noticed, the First Amendment has been taking a beating on college campuses. More and more schools are placing limits on what activities  students and professors can engage in. Private and public universities are holding students and professors to “codes of conduct” that in many ways limit their rights to free speech. The University of Minnesota for example, warned students about offensive Halloween costumes. The University of North Carolina took it one step further, admonishing students that satirical flyers making fun of school-issued flyers that warned students not to wear offensive Halloween costumes was “unprofessional.”   On a more serious note, Montclair State University  penalized the Montclair Students for Justice in Palestine  organization five percent of its semester budget and ordered the group to cease all political activity after receiving complaints that the group had handed out “political” and “offensive” pamphlets; the group was also admonished that it was only to focus on Palestinian culture and not to take positions on political issues. (One wonders how you can focus on Palestinian culture and not discuss political issues). More examples of the restriction of free speech rights on university campuses are documented on the excellent website

So any victory for the First amendment in academia is noteworthy.  Friday, the U.S. Court of Appeals for the Seventh Circuit overturned a   lower court’s dismissal of Adjunct Professor Robin Meade’s lawsuit against Moraine Valley Community  College in a decision that will be helpful for adjunct professors throughout the Seventh Circuit’s jurisdiction, which includes the states of Illinois (where Moraine Valley is located), Indiana, and Wisconsin.

Professor Meade had the audacity to write to the League for Innovation in the Community College about her employer. Meade, an adjunct faculty member at the school, leveled multiple charges at the college regarding its poor treatment of adjuncts. These practices, she charged in the letter, harmed the school’s students.  Two days later, Moraine Valley fired Meade sending her a written notice explicitly citing Meade’s letter as the reason for its action.

Blind and occasionally fickle

Blind and occasionally fickle

Meade filed a Federal Civil Rights claim against the school which the lower court dismissed. The judge below ruled that Meade’s letter was addressing her private concern about her job and not written to address a public interest at large.  Furthermore, the lower court held, the State of Illinois is an “at will” state so Meade had no right to a job and therefore no property interest to protect. In dealing with the latter issue, the Seventh Circuit held that because Meade had already been given a schedule of classes for her to teach , office hours, etc., that was a protectable interest.  In dealing with the former issue, the court held that merely because Meade might benefit from a change in policy or that she was personally subject to some of the policies she deemed wrongful did not mean that her letter was purely personal or that it did not address matters of public concern. The court noted that she wrote the letter in her capacity as president of the Moraine Valley Adjunct Faculty Organization, the union representing adjuncts at the school. It held that it could not be seriously disputed that the objective or overall point of the letter was to address matters of public interest.

This decision is a welcome acknowledgement that folks don’t lose their First amendment rights when they decide to go into academia.  Of course, you would expect the exact opposite to be true.  That is, that institutions committed to broadening the minds of our nation’s young people would be more careful in limiting their professors’ rights to be heard and to address matters of concern at their own school. Professor Meade now gets her day in court to prove her case and speak her mind.

Oct 23 2014

Beware of Beautiful Hawaiian Beaches -You May Get Sued!

Hawaii has some of the most beautiful beaches in the world. Capturing a breath-taking view of one really requires being in the right place at the right time.  And no one has been in the right place at the right time more than Vincent Tylor (Note: Vincent Khoury Tylor is the father of Vincent Scott Tylor- both are Hawaiian Photographers) (We’ll call them collectively “VT”). VT has made a career of taking and selling his scenic photographs of Hawaiian beaches through his own websites like and But the Internet has produced a secondary career for VT who  – copyright infringement litigator. The ability to search for and locate digital imagery through the Internet has opened up a cottage industry for VT where he sends out cease and desist letters with large demands against alleged infringers and on occasion he then files suit against them in his home state of Hawaii.  I have recently become involved in two such lawsuits filed in Hawaii against folks who allegedly used VT’s images on their websites. I will not discuss their individual cases here of course, but I will share what I have learned from my involvement in them.

copyright logoWhat VT Does Right 

Let me start by saying what I feel VT does right.

(1) He registers the images with the Copyright Office. He also does so in an organized fashion that makes it relatively easy to find the registration for the particular image. Copyright in an image attaches the minute the photographer snaps the picture and there is no legal requirement that you register the image in order to obtain the copyright in the image. Generally speaking, you took it, you got it. But registering the images allows VT to easily prove that he is the owner of the image and allows him to seek statutory damages and legal fees should he win a lawsuit over the use of the image.

(2) On his sites, he watermarks the images so that it is further easy to prove ownership and if someone removes the watermark (or content management information as it is legally known) that creates a second claim or cause of action against that person.

(3) He hired an experienced well-known lawyer in Hawaii – J. Stephen Street – to process his claims. His lawyer knows his way around a courthouse and knows copyright law. Too often, folks on both sides of an infringement suit don’t hire someone well-versed in copyright law or in litigation. They call the lawyer who set up their company or helped them incorporate or did their business lease. You need a lawyer who knows intellectual property law litigation in general and copyright law specifically. I have spoken and dealt with Street and he is professional and knowledgeable. While I don’t see eye-to-eye with him on a lot of things, our conversations have been courteous and productive. I can’t always say that about the lawyers that handle these digital image copyright infringement matters.

(4) VT takes beautiful and professional pictures of Hawaii.


What VT Does Wrong 

(a) Asking too much. VT’s demands both in his letters and through his litigation ask for damage amounts that I believe exceed what he would recover in a court of law. I have discussed this with Mr. Street and we have agreed to disagree on this issue. I recently represented a photographer whose business is similar to VT except his island of choice is Granada.  He found a travel agency that was using his images without license. He hired me to send a cease and desist letter. Luckily, the target company hired qualified IP counsel and we settled the case quickly for a fair amount. We didn’t try to scare anyone into overpaying for the images. Asking for a rational amount based upon the use made of the image and the guilt of the party (was it intentional, where did they get the image from, did they re-sell the image etc) is the best way to a quick resolution

(b) Suing in Hawaii. Without getting into too much legalese, before you can file suit in a certain State, you have to show that the defendant has sufficient “minimum contacts” with the State so as to allow them to be hauled into court in that State. In the two cases I am handling, I feel the connection to Hawaii is thin. Of course, Mr. Street would disagree with me. But to even argue that, they then have to get Hawaiian counsel and fight the case until they can convince a court that they are right. The time zone difference also adds to the difficulty in dealing with the case. This added expense and pressure is unfair if the party really has no ties to Hawaii. We’ll see if the court agrees with me or Street.


Added Note of Caution about “Free Wallpaper and Free Images” Sites:

If you do a reverse image search on Google for just about any VT image, you will find it on dozens and dozens of websites propounding to provide “free images” or “free wallpaper shots.” This is where many VT’s targets get their images from. People believe that when a site says something is “Free” its “Free.” But the site does not own the images and has no legal right to sell them. Incidentally, using an image from a free wallpaper site as a banner for your website which advertise  your business is not “wallpaper.” For a time, on ELI and in other places, there was speculation that VT was “seeding” his images onto these sites in order to entrap or ensnare folks into using them and to then make them targets of later suits.  Having been involved in this issue for some years now, I can state that no proof of any such seeding has ever been found. Street also demonstrated to me the many attempts VT has made over the years in trying to get “Free Wallpaper” and “Free Images” sites to take down VT’s work. It’s like playing “Whack-A-Mole” – you knock one down another pops up instantly.


What’s All This Mean? 

It means that if you intend to use an image of a Hawaiian beach, chances are its VTs unless you go old school. It means that you cannot assume that just because an image is labeled as “free” that you can use it without a problem.  It means that chances are if you want to use a picture of a Hawaiian beach you will have to pay for it now or later. Or else you could find yourself saying “Aloha” to a judge in the Federal Court for the District of Hawaii.



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