Tuesday, February 9, 2010
Civil Rights Activist, Child Porn Hound
The Cape Cod Times is reporting on the case of John Perry Ryan a long time civil rights activist who collected and distributed tens of thousands of images of child pornography some of the children were as young as 2 years old. I found the story interesting because there is a definite peek into the mindset of this child porn collector via Mary Ann Bragg's article:
"A former Cape Cod civil rights activist was sentenced yesterday to 7½ years in prison for what a Vermont federal district court judge called the most 'egregious' child pornography case he'd seen. John Perry Ryan, 62, of Braintree, Vt., will report to federal prison authorities March 9 to serve his sentence. After serving his prison time, Ryan will be under supervised release for five years, said U.S. District Judge William Sessions in a Burlington courtroom.
Ryan lived in Provincetown and worked across the Cape in the 1980s and '90s on issues involving gay people, Native Americans, AIDS patients, blacks and community policing. He pleaded guilty last summer, about two weeks before his trial date, to two counts of transporting child pornography. U.S. immigration authorities first learned of his Internet activity following a tip from Swiss officials that in 2006 Ryan was communicating with an individual in Switzerland. While the case involved the Swiss person was pending, the government learned Ryan had also allegedly sent child pornography to a person in Seattle. The tens of thousands of images and videos on his computer included children as young as 2 and sadomasochistic acts involving children.
During the three hours of proceedings in the fifth-floor courtroom, Ryan sat attentively, with his fingers sometimes pressed against his lips. When he stood and spoke asking for leniency, he seemed invigorated as though debating an issue of public importance. He has a slight stoop and appeared to have difficulty hearing at times. 'I had all this time on my hands,' he said. 'I have an obsessive personality. I was sitting there pressing a button and things are going to the farthest corner of the earth.'
Dressed in a work shirt and casual pants, he left the courtroom with a solemn look on his face yesterday. He declined to comment. In the hallway outside the courtroom, his partner, John Caruso, cried as a dozen friends gathered around. Assistant U.S. Attorney Wendy Fuller brushed quickly past and disappeared around a corner.
Michael Touchette, a forensic examiner of digital media testified yesterday there were about 24,000 pornography photographs on a computer taken from Ryan's home. About half had been looked at, Touchette said. Many were of children between the ages of 2 and 14 engaged in sexual acts, some with adults. Some photos showed sadomasochistic images of children, those who 'appeared to be distraught or in harm's way,' he said. Ryan also had about 100 child pornography videos on his computer, Touchette said. He read through chats that Ryan had participated in, one of which referred to children as a profane type of 'meat,' he said. In one line of chat conversation, Ryan said he wanted to "snuff," or kill a child after sex. Another of Ryan's chat lines, Touchette said, was 'the younger the better.'
'It's not a standard child pornography case,' said Fuller in court. "'Sucker punch them in the mouth to make them submit.' Who writes that?' During the period covered by the charges, investigators matched Ryan's activity on the computer as a time when Caruso was scheduled to be at work, according to court records.
Ryan told the court yesterday he'd become involved in child pornography during an isolated period at home in Vermont. He said he was partly interested in researching adult taboos and other fantasies that adults kept secret until the advent of the Internet. Ryan said he was a computer novice, having first gotten a computer in 2002. He said he got obsessed with pressing 'the button' on his computer, and sometimes didn't realize the volume of photos he was downloading. He started looking at child pornography when someone in an Internet chat room sent him a link, he said. Over time, Ryan said he began to dissociate himself from the content of the images and the chats he had. He characterized himself as a person who would never hurt a child. As part of his sentencing — and upon his release from prison — Ryan will have to register as a sex offender in any state where he resides or is active, Sessions said.
Seven people who are friends of Ryan's spoke to Sessions asking for leniency. Ryan has been confined to his home with an electronic bracelet since his arraignment in 2007. His supporters had hoped for a similar set-up for his sentence. 'I traveled from Cape Cod to try and prevent what I perceive is a real tragedy, sending John to prison,' said Bourne attorney Lee Berger, who met Ryan during a civil rights issue with the Wampanoag tribe in Mashpee"
_____________________________
This case supports one of the points I made previously about Child Porn arising as "content" in response to the development of internet technologies; and, the story is proof of the ensnaring aspect of the same technology.
This "perp" describes something I believe to be the case for many users of the internet, including me, the internet is addictive. The anonymity allows you to explore aspects of your character which can get pretty ugly and in Mr. Ryan's case, illegal. The other aspect of this story that is interesting for me is that Mr. Ryan appears to have been a gay man in a loving relationship with a committed partner. People involved in child porn can not be characterized by class, politics, education, sexual orientation, or occupation.
Labels:
child pornography
Future Lawyer F@#*s Up Job Search
This job hunting tale of woe is funny in a painful sort of way. Maybe a little instructive which is why I am including a link to the story. It was at the AboveTheLaw blawg as 3L Achieves Networking Failure, and now it's at the ABA Journal website and it deals with a "3L" law student who screws up an email, resume dump as part of a desperate job search technique: cold resume, emailing--when this young man got a response with criticism he compounded his screw up with a spectacularly ill-advised follow-up.
Here's an opportunity to learn from someone else's mistake, which in part is one of the themes of Bad Lawyer.
Here's an opportunity to learn from someone else's mistake, which in part is one of the themes of Bad Lawyer.
Labels:
email job search misfire,
job hunting
Monday, February 8, 2010
The Autobiography of an Execution
Texas Death Row Appellate Attorney David Dow was interviewed by Terry Gross on Fresh Air, today. At the link you can listen to the interview. It was a riveting discussion of crime and punishment.
I was telling friends this morning that the most dramatic insight in this interview with Professor Dow was his observation that the persons Texas kills are not the same persons by and large who killed, if in fact they are guilty which in and of itself is a big question mark in Texas. In many instances these death row inmates are the children who grew up with out parents who were themselves victims of horrific violence, who are drug and alcohol addicted and certainly moving in the maelstrom of life without skill sets. After years on death row, many of these folks grow up, mature, become educated; and, God forbid, become rehabilitated. But we kill them anyway.
Dow is not one of those dreamy lefties, he acknowledges that on rare occasion real and genuine evil exists among this population but by and large these are the exceptions, not the rule.
I was telling friends this morning that the most dramatic insight in this interview with Professor Dow was his observation that the persons Texas kills are not the same persons by and large who killed, if in fact they are guilty which in and of itself is a big question mark in Texas. In many instances these death row inmates are the children who grew up with out parents who were themselves victims of horrific violence, who are drug and alcohol addicted and certainly moving in the maelstrom of life without skill sets. After years on death row, many of these folks grow up, mature, become educated; and, God forbid, become rehabilitated. But we kill them anyway.
Dow is not one of those dreamy lefties, he acknowledges that on rare occasion real and genuine evil exists among this population but by and large these are the exceptions, not the rule.
Labels:
David Dow,
death penalty
Karaoke Can Get You Killed
This is also from Sunday's New York Times, in fact when my pal Chris came across the article at the link--we coffee-sucking geezers were subjected by Chris to a karaoke-like-reading. As it turns out singing Karaoke versions of Sinatra's late-career signature song My Way can get you killed in some places in the Phillipines. Oh, and as I would expect singing John Denver's Country Road, can be pretty unhealthy too!
Labels:
karaoke killings
Even Elderly Men Collect Child Porn, Commit Rape
My pal Chris and I went out to catch the Crazy Heart film, the other day and he commented on the Child Porn post, wondering what prompted it. I told him that at this point I am feel a little like a stone skipping from one local website to another and sometimes as I bounce from place to place I'm struck by the patterns in local prosecutions. It was the frequency with which you see prosecutions of all sorts of folks that is striking to me.
On February 6th, Savannahnow.com had this article about the 80 year old man, sentenced for having more than 15,000 child porn images on his computer:
"An 80-year-old Savannah man has been sentenced to serve two years in prison for his conviction on a charge of sexual exploitation of children. David J. Hesrick was sentenced to 10 years total Thursday after Chatham County Superior Court Judge John E. Morse Jr. convicted him during a bench trial. In addition to the sexual exploitation count, Morse also convicted the defendant on two counts of making false statements to police. Evidence presented by Assistant District Attorney Emily Thomas showed police were called to Hesrick's southside home after he and his roommate quarreled, office spokeswoman Alicia Johnson said. Officers found the flap was over the roommate's discovery of pornographic images of children on Hesrick's computer. Investigators found at least 15,000 images and 12 videos containing pornographic images of children, Johnson said.."
____________________________
One of the first adult survivors of child sex abuse I represented was a woman named, "Star" who had been raped and sexually abused by her father who at the time of his civil prosecution was quite aged. "Star" was agitated that this man was not behind bars because despite his age she assured me he was still an active perpetrator.
Whenever "Star" learned of her father's whereabouts she would printout flyers with his picture, drive to this region of OurState and paper cars in shopping center parking lots. She would give the local law enforcement copies of the flyers. Sure enough, this aged perpetrator would abuse again, and eventually he was taken into custody and convicted of molesting a child.
While I don't necessarily equate consumers of child porn with perpetrators of child sex abuse, elderly criminals of all sort continue to commit habitual crimes. Experience tells me not to be surprised that the elderly abusers continue their lifelong habits of sexually exploiting children when they think they can get away with it; so many trusting parents are surprised to the detriment of their children.
Oh, the picture is of Giovanni Cocozza, a 77 year old serial rapist.
On February 6th, Savannahnow.com had this article about the 80 year old man, sentenced for having more than 15,000 child porn images on his computer:
"An 80-year-old Savannah man has been sentenced to serve two years in prison for his conviction on a charge of sexual exploitation of children. David J. Hesrick was sentenced to 10 years total Thursday after Chatham County Superior Court Judge John E. Morse Jr. convicted him during a bench trial. In addition to the sexual exploitation count, Morse also convicted the defendant on two counts of making false statements to police. Evidence presented by Assistant District Attorney Emily Thomas showed police were called to Hesrick's southside home after he and his roommate quarreled, office spokeswoman Alicia Johnson said. Officers found the flap was over the roommate's discovery of pornographic images of children on Hesrick's computer. Investigators found at least 15,000 images and 12 videos containing pornographic images of children, Johnson said.."
____________________________
One of the first adult survivors of child sex abuse I represented was a woman named, "Star" who had been raped and sexually abused by her father who at the time of his civil prosecution was quite aged. "Star" was agitated that this man was not behind bars because despite his age she assured me he was still an active perpetrator.
Whenever "Star" learned of her father's whereabouts she would printout flyers with his picture, drive to this region of OurState and paper cars in shopping center parking lots. She would give the local law enforcement copies of the flyers. Sure enough, this aged perpetrator would abuse again, and eventually he was taken into custody and convicted of molesting a child.
While I don't necessarily equate consumers of child porn with perpetrators of child sex abuse, elderly criminals of all sort continue to commit habitual crimes. Experience tells me not to be surprised that the elderly abusers continue their lifelong habits of sexually exploiting children when they think they can get away with it; so many trusting parents are surprised to the detriment of their children.
Oh, the picture is of Giovanni Cocozza, a 77 year old serial rapist.
Labels:
chld porn,
elderly criminals
Sunday, February 7, 2010
Bad Doctor, But Prosecute the Nurse that Reports Him, That Makes Sense in Texas, Right?
In the Sunday New York Times, Kevin Sack wrote about two Texas nurses (pic), one who is about to be prosecuted in state court on charges of reporting what they believed to be bad medical practices of Dr. Rolando G. Arafiles Jr, a physician at the Winkler County Memorial Hospital. The report is absolutely astonishing because it involves the criminalization of what most of us would hope and pray occurs in our health care system, educated professionals see substandard care and report it to their professional boards. If an investigation proves that the concerns are misplaced, then we are all reasssured, right? Not when the local Sheriff is pals with the offended doctor.
This is from the Times article:
[I]n what may be an unprecedented prosecution, . . . [Anne] Mitchell is scheduled to stand trial in state court on Monday for 'misuse of official information,' a third-degree felony in Texas.
The prosecutor said he would show that Mrs. Mitchell had a history of making 'inflammatory' statements about Dr. Rolando G. Arafiles Jr. and intended to damage his reputation when she reported him last April to the Texas Medical Board, which licenses and disciplines doctors. Mrs. Mitchell counters that as an administrative nurse, she had a professional obligation to protect patients from what she saw as a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.
Charges against a second nurse, Vickilyn Galle, who helped Mrs. Mitchell write the letter, were dismissed at the prosecutor’s discretion last week. The case has been infused with the small-town politics of this wind-whipped city of 5,200 in the heart of the Permian Basin, 10 miles from the New Mexico border. The seeming conflicts of interest are as abundant as the cattle grazing among the pump jacks and mesquite.
When the medical board notified Dr. Arafiles of the anonymous complaint, he protested to his friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter. Both sides acknowledge that the case has polarized the community, and the judge has moved the trial to a neighboring county. The state and national nurses associations have called the prosecution an outrage and raised $40,000 for the defense. Legal experts argue that in a civil context, Mrs. Mitchell would seem to be protected by Texas whistle-blower laws.
'To me, this is completely over the top,' said Louis A. Clark, president of the Government Accountability Project, a group that promotes the defense of whistle-blowers. 'It seems really, really unique.'
Until they were fired without explanation on June 1, Mrs. Mitchell and Mrs. Galle had worked a combined 47 years at Winkler County Memorial Hospital here, most recently as its compliance and quality improvement officers. The nurses, who are highly regarded even by the administrator who dismissed them, said the case had stained their reputations and drained their savings. With felony charges pending, neither has been able to find work. They said they could feel heads turn when they walked into local lunch spots like El Joey’s Mexican restaurant.
'It has derailed our careers, and we’re probably not going to be able to get them back on track again,' said Mrs. Galle, 54, a grandmother who is depicted around town as the soft-spoken Thelma to Mrs. Mitchell’s straight-shooting Louise. 'We’re just in disbelief that you could be arrested for doing something you had been told your whole career was an obligation.'
It was not long after the public hospital hired Dr. Arafiles in 2008 that the nurses said they began to worry. They sounded internal alarms but felt they were not being heeded by administrators. Frustrated and fearing for patients, they directed the medical board to six cases 'of concern' that were identified by file numbers but not by patient names. The letter also mentioned that Dr. Arafiles was sending e-mail messages to patients about an herbal supplement he sold on the side. Mrs. Mitchell typed the letter and mailed it with a separate complaint signed by a third nurse, who wrote that she had resigned because of similar concerns about Dr. Arafiles. That nurse was not charged.
To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a 'nongovernmental purpose' with intent to harm Dr. Arafiles. Mari E. Robinson, executive director of the Texas Medical Board, has warned in a blistering letter to prosecutors that the case will have 'a significant chilling effect' on the reporting of malpractice. The nurses’ lawyers, John H. Cook IV and Brian Carney, have filed a civil lawsuit in federal court charging the county, hospital, sheriff, doctor and prosecutor with vindictive prosecution and denial of the nurses’ First Amendment rights. Nonetheless, the sheriff, Robert L. Roberts Jr., and the prosecutor, Scott M. Tidwell, express confidence in their case.
______________________________
This is a no-brainer. In most jurisdictions these charges would be dismissed. The alleged underlying facts involve "privileged communications" of a professional acting within the scope and ocurse of her professional obligation to the patient community. We will keep our eyes on Texas. Good luck nurse Anne Mitchell.
This is from the Times article:
[I]n what may be an unprecedented prosecution, . . . [Anne] Mitchell is scheduled to stand trial in state court on Monday for 'misuse of official information,' a third-degree felony in Texas.
The prosecutor said he would show that Mrs. Mitchell had a history of making 'inflammatory' statements about Dr. Rolando G. Arafiles Jr. and intended to damage his reputation when she reported him last April to the Texas Medical Board, which licenses and disciplines doctors. Mrs. Mitchell counters that as an administrative nurse, she had a professional obligation to protect patients from what she saw as a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.
Charges against a second nurse, Vickilyn Galle, who helped Mrs. Mitchell write the letter, were dismissed at the prosecutor’s discretion last week. The case has been infused with the small-town politics of this wind-whipped city of 5,200 in the heart of the Permian Basin, 10 miles from the New Mexico border. The seeming conflicts of interest are as abundant as the cattle grazing among the pump jacks and mesquite.
When the medical board notified Dr. Arafiles of the anonymous complaint, he protested to his friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter. Both sides acknowledge that the case has polarized the community, and the judge has moved the trial to a neighboring county. The state and national nurses associations have called the prosecution an outrage and raised $40,000 for the defense. Legal experts argue that in a civil context, Mrs. Mitchell would seem to be protected by Texas whistle-blower laws.
'To me, this is completely over the top,' said Louis A. Clark, president of the Government Accountability Project, a group that promotes the defense of whistle-blowers. 'It seems really, really unique.'
Until they were fired without explanation on June 1, Mrs. Mitchell and Mrs. Galle had worked a combined 47 years at Winkler County Memorial Hospital here, most recently as its compliance and quality improvement officers. The nurses, who are highly regarded even by the administrator who dismissed them, said the case had stained their reputations and drained their savings. With felony charges pending, neither has been able to find work. They said they could feel heads turn when they walked into local lunch spots like El Joey’s Mexican restaurant.
'It has derailed our careers, and we’re probably not going to be able to get them back on track again,' said Mrs. Galle, 54, a grandmother who is depicted around town as the soft-spoken Thelma to Mrs. Mitchell’s straight-shooting Louise. 'We’re just in disbelief that you could be arrested for doing something you had been told your whole career was an obligation.'
It was not long after the public hospital hired Dr. Arafiles in 2008 that the nurses said they began to worry. They sounded internal alarms but felt they were not being heeded by administrators. Frustrated and fearing for patients, they directed the medical board to six cases 'of concern' that were identified by file numbers but not by patient names. The letter also mentioned that Dr. Arafiles was sending e-mail messages to patients about an herbal supplement he sold on the side. Mrs. Mitchell typed the letter and mailed it with a separate complaint signed by a third nurse, who wrote that she had resigned because of similar concerns about Dr. Arafiles. That nurse was not charged.
To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a 'nongovernmental purpose' with intent to harm Dr. Arafiles. Mari E. Robinson, executive director of the Texas Medical Board, has warned in a blistering letter to prosecutors that the case will have 'a significant chilling effect' on the reporting of malpractice. The nurses’ lawyers, John H. Cook IV and Brian Carney, have filed a civil lawsuit in federal court charging the county, hospital, sheriff, doctor and prosecutor with vindictive prosecution and denial of the nurses’ First Amendment rights. Nonetheless, the sheriff, Robert L. Roberts Jr., and the prosecutor, Scott M. Tidwell, express confidence in their case.
______________________________
This is a no-brainer. In most jurisdictions these charges would be dismissed. The alleged underlying facts involve "privileged communications" of a professional acting within the scope and ocurse of her professional obligation to the patient community. We will keep our eyes on Texas. Good luck nurse Anne Mitchell.
Labels:
bad doctors,
good nurses,
whistle blower prosecution
Lying About Medals "Protected Speech?"
There's an interesting article at the Missoulian, by Dan Elliot on peresons who are being prosecuted under a federal law called the Stolen Valor Act. The law makes it a crime to claim to have received a medal from the U.S. Military. U.S. District Courts are hearing challenges to prosecutions under the statute on Free Speech grounds.
Let's face it, anyone who lies about having been in the military and receiving a medal is a scumbag. And among those being prosecuted under the statute, there are some brazen scumbags. Being an army veteran, I sympathize with the goal of the law--but criminal prosecutions? Elliot's article fleshes out the debate, I quote:
"The federal courts are wrestling with a question of both liberty and patriotism: Does the First Amendment right to free speech protect people who lie about being war heroes? At issue is a three-year-old federal law called the Stolen Valor Act that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military. It is a crime even if the liar makes no effort to profit from his stolen glory. Attorneys in Colorado and California are challenging the law on behalf of two men charged, saying the First Amendment protects almost all speech that doesn't hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.
Jonathan Turley, a professor at George Washington University Law School who is not involved in the two cases, said the Stolen Valor Act raises serious constitutional questions because it in effect bans bragging or exaggerating about yourself. 'Half the pickup lines in bars across the country could be criminalized under that concept,' he said. [BL: One wonders how Professor Turley knows this?]
Craig Missakian, a federal prosecutor in the California case, argued that deliberate lies are not protected. He also said the Constitution gives Congress the authority to raise and support an army, and that includes, by extension, 'protecting the worth and value of these medals.' The Stolen Valor Act revised and toughened a law that forbids anyone to wear a military medal that was not earned. The revised measure sailed through Congress in late 2006, receiving unanimous approval in the Senate. Dozens of people have been arrested under the law at a time when veterans coming home from wars in Afghanistan and Iraq are being embraced as heroes. Many of the cases involve men who simply got caught living a lie without profiting from it. Virtually all the impostors were ordered to perform community service. In one case, a man posing as a Marine war hero was accused of using his hero status to receive discount airline tickets and a free place to stay near Phoenix. Defense attorneys say the law is problematic in the way it does not require the lie to be part of a scheme for gain. Turley said someone lying about having a medal to profit financially should instead be charged with fraud. One of the men challenging the law is Xavier Alvarez of Pomona, Calif. He had just been elected to a water district board in 2007 when he said at a public meeting that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration. His claim aroused suspicion, and he was indicted 2007. Alvarez, who apparently never served in the military, pleaded guilty on condition that he be allowed to appeal on the First Amendment question. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000. The case is now before a federal appeals court.
The other person challenging the law is Rick Glen Strandlof, who claimed he was an ex-Marine wounded in Iraq and received the Purple Heart and Silver Star. He founded an organization in Colorado Springs that helped homeless veterans. Military officials said they had no record that he ever served. He has pleaded not guilty, and a judge is considering whether to throw out the charge.
Attorneys challenging the law say that lying about getting a medal doesn't fit any of the categories of speech that the U.S. Supreme Court has said can be banned: lewd, obscene, profane, libelous or creating imminent danger to others, such as yelling fire in a crowded theater. Army veteran Pete Lemon of Colorado Springs, who received the Medal of Honor for turning back an enemy assault and rescuing wounded comrades in Vietnam while injured himself, supports the law, saying that pretending to have a medal can bring undeserved rewards. Doug Sterner, a military historian, said the law embodies the wishes of the nation's first commander in chief, George Washington. Sterner noted that Washington created the Purple Heart, the nation's first military decoration, and wrote: 'Should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished.'"
____________________________________
Like I said, some scummy people are caught up in this "speech" crime. I do like Jonathan Turley's sugggestion that persons shown to have gained something of value be prosecuted for fraud, but the law does not easily dsitinquish itself from the First Amendment protection for free speech--even odious speech is protected. Hell, one of shock jocks signature bits is his preposterous claim to having been a Viet Nam vet. I don't think anyone would view Stern's claims as anything more than "attempted satirical humor."
Let's face it, anyone who lies about having been in the military and receiving a medal is a scumbag. And among those being prosecuted under the statute, there are some brazen scumbags. Being an army veteran, I sympathize with the goal of the law--but criminal prosecutions? Elliot's article fleshes out the debate, I quote:
"The federal courts are wrestling with a question of both liberty and patriotism: Does the First Amendment right to free speech protect people who lie about being war heroes? At issue is a three-year-old federal law called the Stolen Valor Act that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military. It is a crime even if the liar makes no effort to profit from his stolen glory. Attorneys in Colorado and California are challenging the law on behalf of two men charged, saying the First Amendment protects almost all speech that doesn't hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.
Jonathan Turley, a professor at George Washington University Law School who is not involved in the two cases, said the Stolen Valor Act raises serious constitutional questions because it in effect bans bragging or exaggerating about yourself. 'Half the pickup lines in bars across the country could be criminalized under that concept,' he said. [BL: One wonders how Professor Turley knows this?]
Craig Missakian, a federal prosecutor in the California case, argued that deliberate lies are not protected. He also said the Constitution gives Congress the authority to raise and support an army, and that includes, by extension, 'protecting the worth and value of these medals.' The Stolen Valor Act revised and toughened a law that forbids anyone to wear a military medal that was not earned. The revised measure sailed through Congress in late 2006, receiving unanimous approval in the Senate. Dozens of people have been arrested under the law at a time when veterans coming home from wars in Afghanistan and Iraq are being embraced as heroes. Many of the cases involve men who simply got caught living a lie without profiting from it. Virtually all the impostors were ordered to perform community service. In one case, a man posing as a Marine war hero was accused of using his hero status to receive discount airline tickets and a free place to stay near Phoenix. Defense attorneys say the law is problematic in the way it does not require the lie to be part of a scheme for gain. Turley said someone lying about having a medal to profit financially should instead be charged with fraud. One of the men challenging the law is Xavier Alvarez of Pomona, Calif. He had just been elected to a water district board in 2007 when he said at a public meeting that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration. His claim aroused suspicion, and he was indicted 2007. Alvarez, who apparently never served in the military, pleaded guilty on condition that he be allowed to appeal on the First Amendment question. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000. The case is now before a federal appeals court.
The other person challenging the law is Rick Glen Strandlof, who claimed he was an ex-Marine wounded in Iraq and received the Purple Heart and Silver Star. He founded an organization in Colorado Springs that helped homeless veterans. Military officials said they had no record that he ever served. He has pleaded not guilty, and a judge is considering whether to throw out the charge.
Attorneys challenging the law say that lying about getting a medal doesn't fit any of the categories of speech that the U.S. Supreme Court has said can be banned: lewd, obscene, profane, libelous or creating imminent danger to others, such as yelling fire in a crowded theater. Army veteran Pete Lemon of Colorado Springs, who received the Medal of Honor for turning back an enemy assault and rescuing wounded comrades in Vietnam while injured himself, supports the law, saying that pretending to have a medal can bring undeserved rewards. Doug Sterner, a military historian, said the law embodies the wishes of the nation's first commander in chief, George Washington. Sterner noted that Washington created the Purple Heart, the nation's first military decoration, and wrote: 'Should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished.'"
____________________________________
Like I said, some scummy people are caught up in this "speech" crime. I do like Jonathan Turley's sugggestion that persons shown to have gained something of value be prosecuted for fraud, but the law does not easily dsitinquish itself from the First Amendment protection for free speech--even odious speech is protected. Hell, one of shock jocks signature bits is his preposterous claim to having been a Viet Nam vet. I don't think anyone would view Stern's claims as anything more than "attempted satirical humor."
Saturday, February 6, 2010
Stephen Bruton's Estate
The New York Times had an article this week which covered the "will contest" between the ex-wife of the late guitarist and songwriter, Stephen Bruton, and Bruton's brother, the major beneficiary under the a new will drawn up in the wake of Bruton's work on the film Crazy Heart which is up for a number of Academy of Awards. This story is remarkable because of the nature of Bruton's involvement in the film, the dedication by the filmakers of their work to the memory of Bruton, and the producers' alleged enmeshment in the Bruton divorce and new will according to the Times article.
A couple of the filmakers are heroes of mine, especially T Bone Burnett who's 1992 album Criminal Under My Own Hat was an inspiration for this Blawg. You may also recognize Burnett's name from his production and score for the box office hit, O' Brother Where Art Thou which is a retelling of the Odyssey. The other Crazy Heart film maker (and a co-star of the film) is the great actor Robert Duvall.
This afternoon, my pal Chris and I caught a showing of Crazy Heart. The mvie (which is an update of Tender Mercies which won Duvall the Best Actor Oscar in 1983) deals with a bottom alcoholic country and western entertainer working the small club/bowling alley venues. Jeff Bridges has received all kinds of accolades and deservedly so for his performance as "Bad Blake." I actually met Johnny Paycheck in one of these real lowbrow venues (a converted bowling alley) shortly before Paycheck's mini career resurgence and shortly before his death--and, Bridges's performance embodies this classic Country Outlaw archetype.
Of course the music and musical values were fantastic; you would expect nothing less from a T Bone Burnett production.
The treatment of "Bad Blake's" alcoholism was graphic and disturbing for me. It hit way too close to home, particularly making me relive the last days of the lives of now dead friends, paticularly my dear lost friend Carter who I've talked about on the blawg. Carter put together long periods of sobriety, followed by his premature death to a heroin overdose. There is a powerful scene in the movie after the character goes to treatment in which he furiously cleans his pig sty house--this was a scene right out of my time with Carter. He lived above a bank in one of the bohemian neighborhoods. His apartment was pure filth, deep disgusting filth. Empty vodka bottles in ever crevice. Dried mystery-organic material everywhere, when we cleaned his place I felt like I needed a hazmat uniform and a decontaamination shower.
Knowing the final outcome for Carter, Crazy Heart might not have been the best choice for me in my present state of mind. The film was so effective that I spent the better part of the movie in a borderline anxiety attack. While Bad Blake's inner life is not explored except indirectly, I supplied the interior dialogue from my own psyche and the effect was chilling. Great movie, don't miss it.
Oh, and the Bruton will contest--sounds like the classic no good deed goes unpunished scenario as it pertains to the filmakers. Some of the bankers and insurance companies need to get together and push these feuding family members into mediation, like Monday morning.
A couple of the filmakers are heroes of mine, especially T Bone Burnett who's 1992 album Criminal Under My Own Hat was an inspiration for this Blawg. You may also recognize Burnett's name from his production and score for the box office hit, O' Brother Where Art Thou which is a retelling of the Odyssey. The other Crazy Heart film maker (and a co-star of the film) is the great actor Robert Duvall.
This afternoon, my pal Chris and I caught a showing of Crazy Heart. The mvie (which is an update of Tender Mercies which won Duvall the Best Actor Oscar in 1983) deals with a bottom alcoholic country and western entertainer working the small club/bowling alley venues. Jeff Bridges has received all kinds of accolades and deservedly so for his performance as "Bad Blake." I actually met Johnny Paycheck in one of these real lowbrow venues (a converted bowling alley) shortly before Paycheck's mini career resurgence and shortly before his death--and, Bridges's performance embodies this classic Country Outlaw archetype.
Of course the music and musical values were fantastic; you would expect nothing less from a T Bone Burnett production.
The treatment of "Bad Blake's" alcoholism was graphic and disturbing for me. It hit way too close to home, particularly making me relive the last days of the lives of now dead friends, paticularly my dear lost friend Carter who I've talked about on the blawg. Carter put together long periods of sobriety, followed by his premature death to a heroin overdose. There is a powerful scene in the movie after the character goes to treatment in which he furiously cleans his pig sty house--this was a scene right out of my time with Carter. He lived above a bank in one of the bohemian neighborhoods. His apartment was pure filth, deep disgusting filth. Empty vodka bottles in ever crevice. Dried mystery-organic material everywhere, when we cleaned his place I felt like I needed a hazmat uniform and a decontaamination shower.
Knowing the final outcome for Carter, Crazy Heart might not have been the best choice for me in my present state of mind. The film was so effective that I spent the better part of the movie in a borderline anxiety attack. While Bad Blake's inner life is not explored except indirectly, I supplied the interior dialogue from my own psyche and the effect was chilling. Great movie, don't miss it.
Oh, and the Bruton will contest--sounds like the classic no good deed goes unpunished scenario as it pertains to the filmakers. Some of the bankers and insurance companies need to get together and push these feuding family members into mediation, like Monday morning.
Labels:
alcoholism,
will contest
Child Porn
Child Pornography, that is the depiction of children in sexually graphic photographs or video--is the subject of endless reports of arrests and prosecutions at local news websites around the country and here in OurCity in OurState. In fact the sheer numbers of reports of persons of all sorts of backgrounds (see pic), including instances of law enforcement officials, ensnared in possession ofchild pornography arrests (usually for computer images of child sex) is astounding.
Recently the New York Times ran an interesting piece about a young adult who was the subject of the so-called "Misty" series of child pornographic images. "Misty" in actuality, Amy, has been seeking "restitution" from the collectors of her pornographic images who are arrested and prosecuted. The print article on the case indicated that Amy's perpetrator was an Uncle who is now incarcerated. Amy obtained $3.4 million dollar civil verdict which is largely uncollected (boy, do I know thst feeling.)
When images from the video, and photographs that the Uncle published on the internet turn up on the computers of men who are prosecuted for collecting child porn, Amy receives a notice pursuant to a federal law. An attorney is aggressively pursuing restitution form these men. The link at the Times' website also links to opinion pieces of leading experts on constitutional and criminal law discussing the implications of the novel approach of Amy's attorney.
In my career I've had the awful experience of seeing small amounts of this stomach turning stuff. From time to time chld pornography would rear up in civil cases I prosecuted. I don't recall a single prosecution for it until recent years. In fact as I've talked about child pornography on Bad Lawyer in the past,--it is my feeling that the crime and the ability to prosecute it as a crime, is in large part a creature of the internet. While the crime existed in an underground way pre-internet, and believe me it existed--the chain of custody problems, and the ability to "data map" it's possession is a direct development of computer technology. Further law enforcement was enabled to set up stings of persons with a proclivity for child pornography or the exploitation of children was enabled by the internet.
__________________________________________
One of the stories that I realize, I omitted from telling, but from time to time I am reminded by friends who knew about the events at the time and who ask me to relate the story on the blawg, concerns the period following my acquittal on the felonious assault charges brought by the corrupt former Sheriff and his pal the OurCounty prosecutor after a courthouse scuffle.
Within days of the acquittal I began receing emails from "a child" seeking to "talk to me" according to the subject line that would show up in my email box. I would delete these emails with out reading them, but they continued. Eventually I opened one and it was a sexually provocative email from a purported "13 year old," girl. I responded with a curt answer that I was calling the police, printing out the email, and giving it to the local police--and that I was to receive nothing further from the sender. I called the local police, I printed out the email and I delivered it to the police station.
Do I think I was receiving an email from a "13 year old girl?" Not a chance. Some idiot with the Sheriff was trying to see if I could be set up, I have no doubt in my mind on this count. Amazingly I don't receive sexually provocative emails from 13 year olds anymore.
Recently the New York Times ran an interesting piece about a young adult who was the subject of the so-called "Misty" series of child pornographic images. "Misty" in actuality, Amy, has been seeking "restitution" from the collectors of her pornographic images who are arrested and prosecuted. The print article on the case indicated that Amy's perpetrator was an Uncle who is now incarcerated. Amy obtained $3.4 million dollar civil verdict which is largely uncollected (boy, do I know thst feeling.)
When images from the video, and photographs that the Uncle published on the internet turn up on the computers of men who are prosecuted for collecting child porn, Amy receives a notice pursuant to a federal law. An attorney is aggressively pursuing restitution form these men. The link at the Times' website also links to opinion pieces of leading experts on constitutional and criminal law discussing the implications of the novel approach of Amy's attorney.
In my career I've had the awful experience of seeing small amounts of this stomach turning stuff. From time to time chld pornography would rear up in civil cases I prosecuted. I don't recall a single prosecution for it until recent years. In fact as I've talked about child pornography on Bad Lawyer in the past,--it is my feeling that the crime and the ability to prosecute it as a crime, is in large part a creature of the internet. While the crime existed in an underground way pre-internet, and believe me it existed--the chain of custody problems, and the ability to "data map" it's possession is a direct development of computer technology. Further law enforcement was enabled to set up stings of persons with a proclivity for child pornography or the exploitation of children was enabled by the internet.
__________________________________________
One of the stories that I realize, I omitted from telling, but from time to time I am reminded by friends who knew about the events at the time and who ask me to relate the story on the blawg, concerns the period following my acquittal on the felonious assault charges brought by the corrupt former Sheriff and his pal the OurCounty prosecutor after a courthouse scuffle.
Within days of the acquittal I began receing emails from "a child" seeking to "talk to me" according to the subject line that would show up in my email box. I would delete these emails with out reading them, but they continued. Eventually I opened one and it was a sexually provocative email from a purported "13 year old," girl. I responded with a curt answer that I was calling the police, printing out the email, and giving it to the local police--and that I was to receive nothing further from the sender. I called the local police, I printed out the email and I delivered it to the police station.
Do I think I was receiving an email from a "13 year old girl?" Not a chance. Some idiot with the Sheriff was trying to see if I could be set up, I have no doubt in my mind on this count. Amazingly I don't receive sexually provocative emails from 13 year olds anymore.
Labels:
child pornography
Jeffrey R. Fenster Picked By Gov. Patterson for NY State Workers' Compensation Board
During the first week of January New York Gov. David A. Paterson (who as I write, internet rumor has it, is about to be the subject of a major sex scandal)--appointed one, Jeffrey R. Fenster, a 29 year old lawyer as the Workers' Compensation board’s Executive Director, the agency’s highest-paid official and the person charged with running the daily operations of New York's Workers' Compensation system. Director Fenster worked briefly as a litigation associate (entry level) at Stroock & Stroock & Lavan in Manhattan, but who has no management or workers’ compensation experience.
Mr. Fenster's appointment left many who work in the workers' compensation system stupified. This according to the New York Times article on the gubernatorial selection. Uh, like no kidding!
How embarassing for Mr. Fenster, it's almost like getting an Alaskan Judgeship through Todd Palin, not that that would ever happen.
___________________
In my years as a lawyer I had many opportunities to wonder about what a late-friend in the business called the "lucky sperm" club his witty synonym for cronyism. For some reason, the state bureaucracies were overrun with people who had no apparent qualification for the positions they held in the state systems. Often a lucky few would turn out to be pretty bright and decent, while others would prove to be purely evil dolts.
David Patterson, who became Governor in the wake of former Governor Elliot Spitzer's prostitution scandal, was himself a product of New York's crony system. Patterson's father was a famous Harlem power broker--unfortunately for New Yorkers Governor Patterson has proven spectacularly inept. The appointment of a 29 year old, entry level lawyer to a high paid and powerful job administering the State of New York's workers'' compesnation system is an absurd and offensive abuse of power by Patterson.
When the Blonde Super Lawyer first opened her law firm devoted to defending Employers in workers' compensaton matters, she and her partner hired a young law student who was the son of one of the long time "connected" workers' compensaton lawyers in OurState. After he graduated from law school he politely declined a job offer and became an executive level administrator in OurState workeer's compensation system. Within a matter of a couple of years the former legal intern knew far more than many of us who had been laboring away at the daily grind for years--I suppose this legal dynamo developed his expertise from the all the brain waves that ebbed and flowed around him. It proved to me that you really don't have to represent someone with a vested interest in a legal outcome to develop far more valuable legal insight just from breathing the air in OurState capitol.
Labels:
cronyism,
workers compensation
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