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POST WRITTEN BY: Steven Lapkoff (’16), J.D. Pace Law School

The fallout from the U.S. Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), has already changed police practices regarding the search and seizure of a cell phone that is held incident to an arrest. Before Riley, a police officer could search the cell phone of an arrestee for incriminating information or to expose the identities of accomplices. The Riley decision held that “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Riley, 134 S. Ct. at 2495. In so doing, the court made clear that the vast quantities of personal information could only be searched when accompanied by a proper warrant.

However, recent advances in encryption technology are out-pacing the ability of courts and legislatures to adapt, increasingly putting the contents of smartphones outside the reach of the police and courts even when searches are authorized by warrant. The stated aim of this new technology is to “lock out the government,” regardless of the Riley decision.

Apple, maker of the iPhone, which uses the iOS software platform, has upgraded its encryption standard to the point that it claims is “unbreakable,” and the company does not have the ability to unlock a user’s phone even when requested to do so by government entities. Google, which distributes the competing Android platform to smartphone manufacturers, has also decided to encrypt its phones by default.

This has lead to a situation that the FBI has termed “The Black Box” or “Going Dark.” The argument goes, that if a smartphone cannot be accessed even under a lawful court order, then kidnapped children will go un-rescued and drug kingpins will go un-caught. Criminals’ secrets can then be stored worry-free, in these “black boxes” far from the reach of the police and courts. The FBI has gone so far as to demand that the tech companies implant “back door” access for police and courts to ensure continued access to users’ data.

The tech companies have responded that such scare scenarios are “inflammatory and inaccurate,” and that any “back doors” provided to the government would inevitably be exploited by opportunistic hackers. They point out that the “metadata,” data about who a person calls and texts from a smartphone, is accessible elsewhere, and that society’s expectations of privacy have fundamentally changed as more and more people shift a greater portion of their private lives onto their smartphones.

The editorial commentary in the media has come down strongly on the side of the technology companies. Wired further notes that “none of the criminal cases cited by [FBI Director] Comey meet that hypothetical because in real life those instances would be extremely rare and far outweighed by the clear public benefit of preventing the very real threat of a large-scale data breach that could affect millions of Americans.”

In the ongoing debate between security and privacy, the inexorable forward march of technology may leave the courts behind.

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POST WRITTEN BY: Marina Gubenko (’16), J.D. Pace Law School

The release of Google Glass to the general public comes with an issue attached – is it safe and legal to use while driving? Google Glass is a hands-free device that has the same capabilities as a smartphone and allows the user to surf the internet, send texts, and scroll through social media. Google Glass is like having a tiny computer in front of your face all the time.

New York State prohibits a person from using any portable electronic device while the car is in motion. N.Y. Vehicle and Traffic Law § 1225-d (McKinney 2014). Google Glass would seemingly fall under the NY statutory definition of portable device, which defines it as “any telephone, PDA, device with mobile data access, laptop, pager, messaging device, game, portable computing device, ‘or any other electronic device when used to input, write, send, receive, or read text for present or future communication.’” In examining whether Google Glass is legal to use while driving in New York, it is important to point out that the New York law prohibits use of any portable device while the vehicle is in motion. Considering a cellphone, it would be relatively easy for a police officer to observe if a driver operating a vehicle is holding a cellphone and doing something on it. However, with Google Glass functioning as glasses, a police officer would have a harder time deciphering if in use while the driver operates a vehicle.

In California, use of a telephone or electronic device is prohibited while driving unless the device is equipped to be hands-free. Cal. Vehicle Code § 23123 and § 23123.5 (West 2014). Additionally, a person is prohibited from driving a car when their vision is obstructed by “a television receiver, a video monitor, or a television or video screen….” Cal. Vehicle Code § 27602 (West 2014). Google Glass fits that definition; it is a monitor that is constantly in front of the driver. To violate this provision, the police officer needs to proffer evidence that Google Glass was on and being used while the person was driving. In 2014, a woman was pulled over and cited in San Diego, CA for wearing Google Glass while driving. The officer cited her under § 27602. According to a CNN news article, the case was dismissed because the evidence was insufficient to show that Goggle Glass was turned on at the time the woman was driving.

It has been argued that Google Glass is safer than using your phone while driving because a driver does not need to take hands off the wheel. However, a study conducted by the University of Central Florida showed that the reaction time between a Google Glass user and cell phone user in avoiding accidents was about the same.

The bottom-line is that Google Glass is a distraction when operating a motor vehicle. States are seeing the necessity of enacting new legislation to ban Google Glass while driving, and making sure that the new laws specifically include a device such as Google Glass. As of 2014, at least 7 states had proposed legislation. For example, NY Assembly Bill 02729 “prohibits the operation of a motor vehicle while using a wearable computer with a head-mounted display.” This bill is aimed to address ocular technology such as Goggle Glass. Moreover, another NY Assembly Bill 04879 seeks to expand the current definition of portable electronic device to include Google Glass.

Going back to the issue of enforcement; since it appears to be difficult for police officers to determine whether Google Glass was operational and in use while driving, it seems that to ensure safety, the easiest solution is to prohibit wearing it while driving all together. Have we become a society that is unable to tear ourselves away from the virtual world? Are we willing to forego public safety so we can have a piece of technology attached to our heads and stay ‘connected’?  We shouldn’t need laws to answer that.

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On May 27, 2015, the Appeals Chamber of the International Criminal Court (ICC) issued a decision confirming that the ICC case against Ivory Coast national Simone Gbagbo is not jurisdictionally barred to the ICC because of efforts undertaken by Ivory Coast to conduct its own criminal investigations against her.

As discussed in our previous post, the ICC confronted a situation regarding the three Ivory Coast nationals for whom it issued arrest warrants, all of whom were charged with responsibility for alleged crimes against humanity (including murder, rape and other forms of sexual violence, persecution and other inhumane acts) committed by supporters of defeated President Laurent Gbagbo against civilians in the aftermath of the Ivory Coast presidential election in November 2010. This violence resulted in the death of more than three thousand people.

Pursuant to the ICC arrest warrants, Ivory Coast (Côte d´Ivoire) authorities delivered Laurent Gbagbo and militia commander Charles Blé Goudé to The Hague for ICC prosecution on the crimes alleged in the warrants. But Ivory Coast refused ICC orders to deliver Simone Gbagbo and instead asserted that, pursuant to Articles 17 and 19 of the ICC Statute, her case was not admissible to the ICC on the ground that Ivory Coast was investigating and preparing to prosecute her.

After reviewing Ivory Coast’s arguments and supporting documents, an ICC Pre-Trial Chamber rejected the admissibility challenge because the Chamber determined that although Ivory Coast submitted evidence indicating that it was investigating Ms. Gbagbo for economic crimes, crimes against the State, and certain other matters, it was not prosecuting her for the crimes against humanity for which the ICC sought to prosecute her.

Ivory Coast appealed this decision in an effort to deny ICC jurisdiction over Ms. Gbagbo. In arguments to the Appeals Chamber, it employed several tactics, which included (1) submitting evidence of its investigative actions against Ms. Gbagbo that it undertook after the Pre-Trial Chamber’s decision, (2) attempting to challenge several points made by the Pre-Trial Chamber not as factual findings but as legal rulings (which would require more exacting review by the Appeals Chamber), and (3) characterizing acts for which it was investigating Ms. Gbagbo as “preparatory acts” for crimes within ICC jurisdiction.

In addition to Ivory Coast’s arguments, the Appeals Chamber considered arguments by all other concerned Parties. Given the Pre-Trial Chamber’s findings that procedural activities undertaken by Ivory Coast judicial authorities were “sparse and disparate” and did not cover the serious matters that the ICC sought to prosecute, it is perhaps not surprising that Ms. Gbagbo advanced arguments “fully supporting the Appeal.” On the other hand, the ICC Prosecutor and the Office of Public Counsel for Victims (representing victims of the Ivory Coast violence) provided arguments supporting the ICC’s admissibility of the case.

In its May 27 decision, the Appeals Chamber rejected all of the arguments submitted by Ivory Coast and by Ms. Gbagbo and confirmed the Pre-Trial Chamber’s decision that the ICC case against Ms. Gbagbo is admissible.

In rejecting Ivory Coast’s submission of evidence of its investigations subsequent to the evidence it presented to the Pre-Trial Chamber, the Appeals Chamber stated that by making such submissions Ivory Coast was “attempt[ing] to seek a new ruling on admissibility, rather than a review of the proceedings before the Pre-Trial Chamber.” The Appeals Chamber noted that under Article 19(4), “[t]he admissibility of a case … may be challenged only once.” Accordingly, the Chamber held that Ivory Coast couldn’t use this additional information to support what would in effect constitute a second challenge to admissibility. However, an ICC press release reporting on the Appeals Court’s decision notes that Article 19(4) also states that “[i]n exceptional circumstances, the Court may grant leave for a challenge to be brought more than once.”

Ivory Coast became a State Party to the ICC in February 2013. Article 89 of the Rome Statute requires “State Parties [to] comply with [ICC] requests for arrest and surrender.” It will be interesting to see whether Ivory Coast complies with this obligation, or whether it seeks to make use of the “exceptional circumstances” provision to make a second challenge to the admissibility of this case.

POST WRITTEN BY: Maria Dollas (’16), J.D. Pace Law School

Often, there are no witnesses to a crime other than the victim. Given the stress and state of the victim the question arises whether such conditions affect this lone witness’s ability to accurately recall the assailant. Things become more muddied when the police apprehend an assailant (not necessarily THE assailant who committed the crime in question) and the police proceed to do more than to merely present the alleged assailant to the victim.

In a 3-1 majority the Appellate Division Second Department recently held that the use of showup identification by police was unduly suggestive and that the victim’s identification testimony should have been suppressed. People v. James, ___ N.Y.S.3d ___ 2015 N.Y. Slip Op. 03864 (App. Div. 2d Dep’t May 6, 2015).

The discrepancy in the attributes of the person the victim described and the person actually caught were significant:  they varied in age, height, and attire. The victim described her assailant as about 20 years old, 6 feet tall, wearing a brown and white striped shirt. The person apprehended by police was 13 years older and 4 inches shorter. A striped shirt of a different color combination, in this case a red-and-blue striped shirt was found near a parked vehicle and not on his person. Nonetheless, the police presented the person apprehended in handcuffs to the victim. That alone might have signaled guilt. It was particularly suspicious since the person arrested was walking shirtless in the area.

Still, the victim was not able to identify her assailant. It was only when the police purposely placed the miscolored striped shirt across the defendant’s chest that that the victim conceded that he was her assailant. The victim did not request the shirt to be placed upon the apprehended individual. Initially, she could not and did not identify him. It was only after the police officer took active steps that the victim said he was the one.

There is no doubt that the crime was committed. There is however doubt as to the reasonableness of the police tactics in presenting the apprehended individual to the victim. Showups and other identification procedures are not to be so unduly suggestive as to violate due process. The primary evil to be avoided is a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968).

The law is not concerned with the number of witnesses but rather with the quality of the identification given. Even a slight deviation from permitting the victim to objectively determine whether the person presented to her as the assailant taints the process. The circumstances in this case are not free from coaxing the victim even so slightly as to whether the right shirt and therefore the right person is in custody.

Additionally, the identification here may have been a cross-racial one:  the assailant was described as a light skinned black male, the victim was only described as a 22 year old female and her skin color was not noted. Ordinary human experience indicates that some people have greater difficulty in identifying members of a different race than they do in identifying members of their own race. See Gary L. Wells & Elizabth A. Olson, The Other-Race Effect in Eyewitness Identification: What Do We Do About It?, 7 Psychol., Pub. Pol’y & L. 230 (2001).  Here, an already challenging identification may have been even more problematic by irresponsible police tactics.

The people’s burden is not only to prove beyond a reasonable doubt that a crime was committed but justice requires that the defendant is indeed the person who committed the crime. One person wrongly identified is one person too many whose liberty and life may be irrevocably altered because of the procedural missteps of others. Misidentification and its consequences can also happen to you and me.

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POST WRITTEN BY: John A. Vitagliano (’17), J.D. Pace Law School

U.S. Attorney for the Southern District of New York Preet Bharara has criticized New York’s political culture, where

deal-making has long been done in Albany by ‘three men in a room’ (the governor, the State Assembly speaker and the State Senate majority leader), who work in secret and without accountability to decide [the states] most vital issues.

On May 12, 2015 New York Senate Majority Leader, Republican Dean Skelos vacated his post amidst a criminal complaint filed for federal charges involving fraud, extortion, and solicitation of gratuities and bribes.

On January 21, 2015, the Former Speaker of the New York State Assembly Sheldon Silver, Assemblyman since 1976 and continuously re-elected speaker since 1994, was indicted on several criminal corruption charges using his political power and influence that netted him $4 million in payoffs.

Mr. Silver, a Democrat from the Lower East Side of Manhattan, was accussed of steering real estate developers to a law firm that paid him kickbacks. He was also accused of funneling state grants to a doctor who referred claims to a second law firm that employed Mr. Silver and paid him fees for referring clients.

Mr. Silver has resigned from his position as Speaker and is currently awaiting trial to defend himself against the federal charges. The exposure of Mr. Silver’s conduct brings Governor Andrew Cuomo’s termination of the Moreland Commission back into the spotlight. The anti-corruption panel was set up to investigate public corruption in New York State and was disbanded after it began looking at the behaviors of certain law firms tied to the governor and Mr. Silver.

Over the past few years, the New York Legislature has been infested with corruption and political misconduct. On February 5, 2015, Mr. Silver and former New York State Assemblyman, Vito Lopez, settled a sexual harassment lawsuit for $580,000 using state funds to pay over 90% of the settlement. William Scarborough resigned from his position and plead guilty to corruption charges in April 2015. Bronx politician Nelson Castro was sentenced to two years probation and 250 community service hours after pleading guilty for lying to investigators. Due to Castro’s cooperation, Eric Stevenson was convicted and sentenced to three years in prison for accepting bribes from businessmen in May 2014. In October 2014 Gabriela Rosa was sentenced to a year in prison after pleading guilty for making false statements in a bankruptcy petition and lying to authorities regarding her marital relationship. William Boyland was convicted in March 2014 on federal charges including bribery, extortion and mail fraud. In February 2014, Malcolm Smith was found guilty of conspiracy, wire fraud, bribery, and extortion when he attempted to scheme his way onto the ballot. In July 2014 Thomas Libous was indicted for lying to federal agents in regards to abusing his political influence in order to obtain a job for his son. In 2013 Pedro Espada Jr. was sentenced to five years in prison for stealing hundreds of thousands of dollars from a health care network he ran. In 2012 Nick Spano, after pleading guilty to a felony for filing fraudulent tax returns, served one year in prison.

Amidst all the public corruption and political misconduct in New York State, the question becomes – can we trust our elected officials? Regardless of political party, can the citizens of New York rely on politicians to uphold their offices with honesty and integrity? Do we really know if our representatives have the public’s interest at heart when they are conducting “business” behind closed doors? Given the recent developments the answer appears to be NO.

The apparent corruption in New York may engender a strong grass-roots movement for a State Constitutional Convention to assist in revamping our political system. Every 20 years, the New York Constitution mandates voters to decide whether to hold a statewide convention to change or amend the constitution and the government. The 2017 ballot will ask the voters if a State Constitutional Convention should be held. Most politicians oppose a constitutional convention because

it is feared that a convention might take steps to diminish the legislature’s institutional power or incumbents’ chances of re-election.

Citizens of the state with honest motives, ethics and morals would have the opportunity to run for delegates for the Convention to redesign the New York State government. While many obstacles would be met if a Constitutional Convention were to take place, it is a legitimate opportunity to rid the state of corrupt politicians.

Action should be taken in order to change the New York political system and restore the integrity of the State. If nothing changes, nothing changes; public corruption and political misconduct will continue to run rampant within our state and voters will only have themselves to blame.

In a follow up to our previous post, the Supreme Court has now decided Elonis v. United States, reversing the conviction based on threats the defendant posted on Facebook against his ex-wife and others.  The Court held it was error for the lower court to instruct the jurors that the defendant could be convicted if the posts would be considered by a reasonable person to be threatening, characterizing that standard as one of traditional civil negligence.  The Court did not address the First Amendment issues concerning the criminalization of Facebook posts.

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As we reported last week, a hearing was held on Friday, May 29 on the motion for appointment of a special prosecutor in Ferguson. After a contentious discussion the Judge Joseph L. Walsh III agreed to consider the expert affidavit of Prof. Bennett Gershman on the issue of prosecutorial misconduct in the grand jury.

Gershman complained about a “gross deviation from proper standards of conduct,” saying he never before saw prosecutors go to “extraordinary lengths to exonerate a potential defendant.”

This Friday, May 29, 2015, a hearing will be held in Missouri State Court in the matter of  State of Missouri ex inf. Montague Simmons, et al., v. Robert McCulloch, St. Louis County Prosecuting Attorney, seeking appointment of a special prosecutor to investigate the St. Louis County Prosecutor’s conduct in the grand jury in State of Missouri v. Darren Wilson  (previously discussed here). The Wilson matter arose from the death of Michael Brown. After a grand jury presentation, the grand jury failed to indict Officer Wilson in the death of Mr. Brown.

Missouri has an interesting statute, Missouri Revised Statutes §§ 106.220–106.290, that allows a private citizen to bring an action for an investigation to determine if a sitting prosecutor’s conduct  constituted a failure to perform the duties of his public office. If so found, a special prosecutor would be appointed with authority to file a writ of quo warranto action seeking ouster of the sitting prosecutor from office.

The motion is supported by the affidavit of Prof. Bennett Gershman, from Pace Law School, who addresses the questions of serious misconduct in the presentation of the case to the grand jury.

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Please click on the link below to read about a local exoneration. Counsel for the defendant were Herman Kaufman, of Rye, NY, and Anthony DiPietro, a Pace Law alum who maintains an office in White Plains, NY.

Jamar Smythe – National Registry of Exonerations

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In a statement issued on May 8, 2015, the ICC Prosecutor expressed concern about “the growing tensions in [Burundi] and reports that violence ahead of the [forthcoming] elections may escalate, which could lead to the commission of serious crimes falling within the jurisdiction of the International Criminal Court.” She warned that “[a]ny person who incites or engages in acts of mass violence, including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She advised that “[her] Office, in accordance with its mandate under the Rome Statute, will be closely following developments in Burundi in the weeks to come and record any instance of incitement or resort to violence.”

As discussed in our previous post, the ICC Prosecutor proactively expressed similar concerns about elections to be held in Nigeria, warning that her Office stood ready to investigate election-related violence in that country that might provide for ICC jurisdiction.

Subsequently, reports indicated that the Nigerian elections proceeded reasonably well. Reuters reported that “[d]espite some technical glitches and the killing of more than a dozen voters by Boko Haram gunmen, the election has been the smoothest and most orderly in Nigeria’s history.” In her May 8 statement, the Prosecutor commented on the Nigerian election and stated that “[t]he recent elections in Nigeria have shown how commitment to peaceful elections by the electoral candidates can prevent mass violence.” While it cannot be determined at this time whether the Prosecutor’s statement in advance of the Nigerian elections contributed to a reasonably peaceful outcome, it may well have done so.

The Prosecutor’s statement about Burundi represents a further step in pursuit of her Office’s policy, articulated in the November 2013 Policy Paper on Preliminary Examination, to “issue public, preventive statements in order to deter the escalation of violence and the further commission of crimes.” Her statement regarding Nigeria addressed a situation in which her Office had previously commenced a preliminary investigation. Although Burundi, as Nigeria, is a State Party to the ICC Statute, the Prosecutor has not as yet opened an investigation into matters in Burundi. Accordingly, the Prosecutor’s May 8 statement represents a further initiative to also perform early warning function in line with the OTP’s prevention efforts.

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