Category: Law

Why don’t our cars text the police when we’re breaking the law?

by philg

Volodymyr Zhukovskyy killed seven motorcyclists in New Hampshire recently. He had a long history of driving erratically, presumably at least partly due to his passion for consuming alcohol, cocaine, and heroin (see USA Today and WCVB).

Driving is something that happens in public. We don’t expect or receive privacy when we’re on a public road in a vehicle that is 15′ long. Why wouldn’t the vehicle, now packed with electronics, simply text the police when the vehicle was speeding or weaving? This guy might have been off the road a few years earlier, thus sparing 7 lives, if the cars and trucks he’d been driving had ratted him out.

The police aren’t allowed to run video continuously everywhere and then arrest all of the criminals thus discovered, but at least in a lot of European countries they seem to do this in public (signs indicate that video recording is in use).

What’s more public than driving on a public road? Why do we have an expectation that our vehicle’s track over the road is private? Why do we spend a huge amount of tax dollars on traffic law enforcement when electronics in cars could do this for us at zero cost?

[The situation is different when people are indoors. For example, “‘Bungled from the beginning’: How Robert Kraft’s sex sting was marred by cops’ missteps” (South Florida Sun Sentinel, May 18, 2019):

In all previous prostitution stings at South Florida massage parlors — including a few with similar sneak-and-peek warrants for secret cameras — the cases resolved quietly and mostly out of the spotlight. Few if any people charged ever challenged the prosecutions. They paid fines and performed community service hours, to avoid embarrassment. … But Aronberg’s office walked back the claims, telling Kraft’s judge that there was no evidence of human trafficking. It was just misdemeanor solicitation of prostitution charges for the men, and felony charges of making money from prostitution for the women. … After judges approved the sneak-and-peek warrants, police used “tactical ruses” to clear out the businesses so they could install the cameras in the massage rooms and the lobby. The cops said they needed to investigate a suspicious package, creating a bomb scare. … But Hanser concluded the warrant still broke federal law, because police didn’t do enough to focus only on crimes and to minimize the cameras’ intrusiveness. At all of the spas with the secret cameras, police wound up recording people receiving lawful services, even though the focus was supposed to be only on men paying for sex acts. … All massage-parlor customers have a reasonable expectation of privacy under the U.S. Constitution, regardless of whether or not they went there for a lawful massage, the judge found.

(One never-answered question raised by the Robert Kraft case is why it was legal for him to pay a 40-year-younger woman in Los Angeles by the month (PEOPLE magazine on the “girlfriend” who lives in a house Kraft owns) but it was illegal for him to pay a woman in Florida by the hour.)]

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Don’t use Facebook Messenger if you’re a criminal

by philg

I’m reading The Last Stone, by the journalist behind Blackhawk Down.

The book concerns an extended family of degenerates and criminals and their involvement in the kidnapping and murder of Katherine and Sheila Lyon back in 1975. This was a cold case that was reopened in 2013.

[one suspect] would often hitchhike out to Hyattsville, another edge city northeast of Washington, in the district’s other Maryland suburban county, Prince Georges. His father, Lee, and stepmother, Edna, and many other members of Lloyd’s large extended family lived there, clustered around his grandmother’s house. They were part of what has become known as the Hillbilly Highway, the migration of largely Scotch Irish Appalachian families to northern cities after World War II. Many of these families retained the insularity, habits, and dialect of their native region.

Parents, aunts, uncles, and cousins of the suspect were all themselves suspected. Few of them were upstanding citizens:

Teddy Welch made little sense as the kidnapper, but his story afforded a glimpse into the curious Welch family. What the detectives found shocked them. The abuse that Lloyd had suffered in his father’s house and Teddy had suffered in his was not an aberration. It was the norm. Few family members had escaped it. Fathers beat and raped their children, brothers terrorized and raped their sisters and cousins. Alcohol, drugs, and violence colored every relationship. It was not much of a stretch to see teenage Lloyd and perhaps even Teddy as pawns enlisted by the older, more practiced predators in their family. The clan had two branches, one in Hyattsville, Maryland, and the other five hours south on a secluded hilltop in Thaxton, Virginia, a place the locals called Taylor’s Mountain. Here the family’s Appalachian roots were extant, even though some of its members had gradually moved into more modern communities in and around Bedford, the nearest town.

The Welch family, with its country ways, lived shoulder to shoulder with city dwellers seeking affordable housing close to jobs inside the beltway. The clan had sunk its roots here wide and deep, with enough Welches, Overstreets, Dooleys, Esteps, and Parkers to fill Magruder Park when they gathered for a reunion. If they had a look, it was generally pale and blue-eyed, with small pinched features in a broad face. Their men were scrawny and their women wide.

Taylor’s Mountain and Hyattsville may have been radically different places, but the family was the same in both. Its mountain-hollow ways—suspicion of outsiders, an unruly contempt for authority of any kind, stubborn poverty, a knee-jerk resort to violence—set it perpetually at odds with mainstream suburbia. Most shocking were its sexual practices. Incest was notorious in the families of the hollers (hollows) of Appalachia, where social isolation and privation eroded social taboos. The practice came north with the family to Hyattsville. Here, where suburban families had turned child-rearing into a fetish, some adults in Lloyd’s immediate family exploited their offspring and ignored barriers to incest. It was not uncommon for Welch children to experiment sexually with siblings and cousins.

Criminal behavior rarely warranted family censure, much less a report to the police. Indeed, the more shocking the conduct, the stronger the impulse to hide it. Protecting the family from outsiders was more important than protecting its members, including children, from each other. And the Welch women, often victims, were its fiercest guardians.

The police used phone taps, but also got into Facebook Messenger.

Otherwise, Connie seemed uninterested. She offered this single memory and that was it. She repeated that she had little or nothing to do with Lloyd or any of the other members of his immediate family. But the squad found something different on her Facebook account. Connie was conferring frequently with her Maryland cousins about the case. Soon after she was questioned, she wrote to Teddy’s wife, Stacy, about what she had been asked and what she had said. She also phoned Pat and Dick’s daughter Patricia Ann. She later wrote on Facebook to another cousin, Patricia Ann’s daughter, Amy Johnson, and explained that her story was, in part, meant to absolve her uncle Dick. “I called Pat last night to let her know I talked to police,” she wrote. “I know Dick did not bring him [Lloyd] down. He walked down with his pregnant girlfriend. That’s for having our back.”

In one of her Facebook exchanges with her cousin Amy, Connie confided, “My biggest fear is that my last family member Henry was part of it on the mountain.” She had told the grand jury that her brother often hung out with Lloyd when the latter visited. When asked how Henry might have been involved, she said, “Henry wouldn’t murder the child. He wasn’t in Maryland. I meant help bury it. If he helped bury the bodies on the mountain.” “Why do you think Henry would bury the bodies on the mountain?” “Because his momma would tell him to do it. We always did what Momma told us to do.”

If the family had used an encrypted messaging system, they might have escaped justice!

[Separately, the book provides support for the idea that criminality is heritable. It didn’t matter that this family ended up in the D.C. suburbs, surrounded by good-hearted social welfare policies and a fountain of tax dollars collected from folks in the Midwest, Florida, Texas, and California. If this family is anything to go by, the 3rd and 4th generation descendants of the Central Americans who come to the U.S. because of their involvement in violent criminal gangs will themselves be involved in violent criminal gangs.]

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Why is Roundup still for sale?

by philg

The California legal system has determined that Roundup causes cancer. See, for example, “$2 Billion Verdict Against Monsanto Is Third to Find Roundup Caused Cancer” (nytimes):

The jury, in state court in Alameda County, reached its verdict two months after a federal jury in San Francisco awarded $80 million to a man who claimed that Roundup had caused his non-Hodgkin’s lymphoma. In August, a state court in San Francisco found that Roundup had caused the cancer of a school groundskeeper, awarding him $289 million. A judge reduced that figure to $78 million.

Yet the German owners of Monsanto (safe to assume they wish they’d spent their hard-earned dollars in some other country?) still make the stuff and Amazon still sells it (example). Glyphosate from a variety of manufacturers is available at Home Depot.

How are the retailers immune from liability? If we have faith in our legal system to come up with correct answers to scientific questions, such as “Does glyphosate cause cancer?” then why are millions of Americans apparently still buying and using it?

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American creativity

by philg

“How Luxury Developers Use a Loophole to Build Soaring Towers for the Ultrarich in N.Y.” (nytimes):

Some of the tallest residential buildings in the world soar above Central Park, including 432 Park Avenue, which rises 1,400 feet and features an array of penthouses and apartments for the ultrarich.

But 432 Park also has an increasingly common feature in these new towers: swaths of unoccupied space. About a quarter of its 88 floors will have no homes because they are filled with structural and mechanical equipment.

Many of these towers stay vacant most of the year, so their owners are not subject to local and state income taxes because they are not city residents.

This ties in nicely with “Why America’s New Apartment Buildings All Look the Same” (Bloomberg):

Los Angeles architect Tim Smith was sitting on a Hawaiian beach, reading through the latest building code, as one does, when he noticed that it classified wood treated with fire retardant as noncombustible. That made wood eligible, he realized, for a building category—originally known as “ordinary masonry construction” but long since amended to require only that outer walls be made entirely of noncombustible material—that allowed for five stories with sprinklers.

By putting five wood stories over a one-story concrete podium and covering more of the one-acre lot than a high-rise could fill, Smith figured out how to get the 100 apartments at 60 percent to 70 percent of the cost.

the buildings have proved highly flammable before the sprinklers and walls go in. Dozens of major fires have broken out at mid-rise construction sites over the past five years. Of the 13 U.S. blazes that resulted in damages of $20 million or more in 2017, according to the National Fire Protection Association, six were at wood-frame apartment buildings under construction.

These are definitely some of our smartest citizens!

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Should Californians who bribe other Californians have to fly to Boston to be prosecuted?

by philg

One thing that I haven’t figured out in the college bribery case (see https://philip.greenspun.com/blog/2019/03/13/admissions-fraud-layered-on-top-of-the-existing-american-college-fraud/ and https://philip.greenspun.com/blog/2019/03/20/college-bribery-scandal-is-evidence-of-social-mobility/) is why the defendants are having to fly to Boston to be prosecuted by the Federal government.

Consider an actress who lives in Los Angeles, California and is alleged to have bribed a ringleader who lives in Newport Beach, California, to get a child into University of Southern California. I’ve just finished listening to a lecture series on the Founding Fathers and I don’t think any of them would have imagined the California resident having to travel out of state to be prosecuted.

Suppose that everyone can agree that the alleged actions are crimes. Why are they federal crimes?

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Death of a Patent

by philg

An inter-partes review ( IPR2018-00044) at the U.S. Patent Office is not the most exciting part of my life as a software expert witness, but it more often leads to a clear resolution (timeline) than do the Federal District Court cases. The patent in question, 7,302,423, covers a way to browse the contents of a database. For curious readers: the decision.

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Maria Butina: Piper Warrior student pilot turns out not to be a master spy

by philg

Nearly a year ago, the New York Times carried the story of the master spy Maria Butina (post). One photo showed her as a student pilot in a Piper Warrior (market value: $30,000?). Later it turned out that she was planning to move to South Dakota in order to more effectively continuing her spying on the Federal government. Vladimir Putin claimed not to know her (CNBC), exactly as we’d expect if she were a critical Kremlin asset.

Now this from CNN… “How the case against Maria Butina began to crumble”:

Prosecutors, meanwhile, have acknowledged that Butina is no Russian spy. But they insist her crime was still nefarious and that she acted as an “access agent” to help spot people who could be recruited as intelligence assets down the road.

“Butina was not a spy in the traditional sense of trying to gain access to classified information to send back to her home country. She was not a trained intelligence officer,” prosecutors acknowledged in a court filing. But, her actions “had the potential to damage the national security of the United States.”

Maybe next time our counterintelligence agents can be trained to look for spies in turbine-powered aircraft?

[U.S. taxpayers, in addition to paying for the investigation and prosecution, now also get to pay for 18 months of incarceration, Butina’s sentence for failing to register as a foreign lobbyist.]

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No statute of limitations for accused academics

by philg

David Marchant, still a geologist, but no longer a Boston University employee, has learned what my friend who teaches at University of California explained: “I can be fired for any reason… except incompetence.” (Science Mag)

The alleged unkind words and actions toward three people occurred in the late 1990s (2017 Science Mag article), but no complaints were made until October 2016 (at least 17 years after the alleged facts).

Had these aggrieved individuals wanted to sue former Professor Marchant, they would generally have had to do so within three years (Massachusetts law) of the events.

(Separately, the accused geologist seems to be a bit of a skeptic regarding climate change catastrophe. He is co-author of a paper telling people not to worry about the East Antarctic Ice Sheet melting and leading to a 60 meter rise in sea level. The Ice Sheet has been around for 14 million years, the paper says, and thus has survived some very warm periods indeed.)

Even if we assume that we can establish 20-year-old facts to perfect accuracy, should there be a statute of limitations for this kind of situation? We could say that what Dr. Marchant (his Ph.D. hasn’t been rescinded yet!) allegedly did was like murder and it can’t be forgiven so we need to punish him even though he might have changed completely during the intervening years. Or we could say that people do evolve over a period of two decades so we want to consider only accusations regarding reasonably recent behavior.

What if, for example, Dr. Marchant had changed gender ID between 1999 and 2019? Would it still make sense to get rid of her on the theory that her presence made it difficult for women?

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Seasoned litigator’s point of view

by philg

One of the cases in which I am a software expert witness was recently dismissed with prejudice (it would be nice to say that this was due to my brilliant analysis of the technology, but it was actually due to fraud by the plaintiff in presenting evidence). The seasoned defense litigator who hired me (two years ago!): “This was a rare instance of justice in the [***] state court system.”

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Jussie Smollett case shows how much faith Americans have in government officials

by philg

If a prosecutor had disliked Jussie Smollett for any reason, he could have been tried for 16 felony counts and been sentenced to as much as 64 years in prison (CBS).

The prosecutor, however, decided that $10,000 and two days of community service would be appropriate (i.e., 0 days in prison rather than more than 23,000). See this AP story in the New York Times:

Defense attorneys said Smollett’s record was “wiped clean” of the 16 felony counts related to making a false report. The actor, who also agreed to do community service, insisted that he had “been truthful and consistent on every single level since day one.”

“I would not be my mother’s son if I was capable of one drop of what I was being accused of,” he told reporters after a court hearing. He thanked the state of Illinois “for attempting to do what’s right.”

I think that this illustrates how much faith Americans have in their government, being willing to vest decision-making over whether this guy would spend the rest of his life in prison or walk free after paying over a few hours of wages (he gets paid more than $100,000 per episode of a TV show).

I don’t think that Europeans live with this kind of unpredictability or subject to the personal whims of government officials. Smollett’s alleged actions would be matched up as closely as possible with something in the big code book(s) and the appropriate punishment looked up.

[The situation in family law is analogous. European countries tend to have straightforward rules, e.g., “the mother will always win custody of minor children” (Denmark) and limits on profitability for both plaintiffs and attorneys (Germany). Contrast to a classical U.S. state, such as Massachusetts, where a child support plaintiff who had sex with a dermatologist could end up with (1) larger after-tax profits than the earnings of a primary care doctor plus 50%-100% custody of the resulting child, (2) profits capped at $1 million (23 years times $40,000) and half-time or primary custody, (3) 0-49% custody of the child and zero revenue. Much of this would be entirely unpredictable until there was a judge assigned to the case (see our statistical study of Middlesex County Probate and Family Court for how dramatic the judge-to-judge variation can be). From the Washington State chapter:

What if a case doesn’t settle? “My main concern with the courts is that lack of consistency from judge to judge,” says DeVallance. “I have two cases with similar facts. In Case 1 Dad has a shared parenting schedule. In Case 2 Dad has supervised visitation [his children can see him only in a facility run by social workers]. The only difference is the judge that was drawn in each case. I could take the exact same facts and make the exact same argument in front of five judges and get five different rulings. This is such a challenge for family law litigators because clients come to us asking for advice.”

The Washington State lawyer’s comments were consistent with what we heard from attorneys around the U.S., except in the handful of states with 50/50 shared parenting presumptions. It costs hundred of thousands of dollars in legal fees just to find out where a judge’s personal biases and prejudices will fall.]

Readers: Why would we give single individuals so much discretion? Is it because we think that Americans are uniquely talented and therefore individual Americans, in this case prosecutors, must be exceptionally capable? The same reasoning behind the often-expressed belief that Americans will play an important role in solving global challenges, such as reducing atmospheric CO2? (Our best engineers can’t make a safe airliner, but the Germans and Chinese will look to us for guidance when they’re building solar cells, windmills, and CO2 vacuums?)

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