Brady Material

One of the touchstones of the criminal defense practice is receiving so-called “Brady” material from the prosecutor.  The term comes from the case Brady v. Maryland, 373 U.S. 83 (1963), in which the Supreme Court of the United States held that a defendant is entitled to evidence that would tend to exculpate him, because withholding such evidence is a denial of Due Process.

Thirty years after Brady, the Supreme Court of the United States issued an opinion in Kyles v. Whitley, 514 U.S. 419 (1995), which imposed a “duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”  Kyles, 514 U.S. at 437.

Last week, in the Ninth Circuit Court of Appeals, the Court issued an opinion reiterating the importance of providing the defendant with evidence which is favorable.  An man in Portland, Oregon was convicted of being a felon in possession of a firearm, convicted largely on the testimony of a particular woman.  What the defendant didn’t know, and what the defendant’s attorney didn’t know, is that this woman

has a lengthy history of run-ins with the Portland police that suggests that she has little regard for truth and honesty.  In addition to being convicted of theft, she has been arrested multiple times for shoplifting and police records show at least one act of “theft by deception.” She has also been convicted several times for fraudulently using false registration tags on her vehicle — a violation she continued to commit after each conviction, stopping only when a frustrated police officer finally scraped the false tags off of her license plates himself.

United Statesv. Price, No. 05-30323 (9th Cir. 2009).

The reason why the defendant and his attorney did not know about the informant’s history, is because the prosecutor never disclosed the information, despite a request from the defendant’s attorney for “any evidence that any prospective Government witness has engaged in any criminal act, whether or not resulting in conviction.”  Id.  The Ninth Circuit allows that the prosecutor may not have known about the string of alleged criminal activity by the informant, but the Court insisted that regardless of what he personally knew, he nonetheless, under Kyles, had a duty to learn.  Id.

How, then, did the defendant and his attorney find out about the informant’s history?  Because immediately after testifying in the defendant’s trial, she claimed that she was threatened by the defendant’s brother, who was then prosecuted for witness intimidation.  (The same AUSA prosecuted the brother.)  It was during that prosecution that her records came fully to light.

Indefinite Detentions

I am wary of brushing with broad strokes, and I suppose President Obama is deserving of a wee but of lee-way, but I’m getting sick of feeling the cynical “meet the new boss, same as the old boss.”  Again, at the risk of even pointing to an AP article, the AP says that U.S. District Judge John Bates has ruled that the United States can continue to hold detainees indefinitely.  This policy, of course, was created under the Bush administration with the help of a pliant Congress.  The reason why Obama is deserving of scorn is that it provided Judge Bates with a definition of who can continue to be held at Gitmo: those who the president has determined “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks,” as well as those “who are or were part of Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.”

Judge Bates opinion  (Hamlily et al., v. Obama, No. 05-0763 (JDB) (civil) (D.D.C. 2009) (and others)) is interesting in a number of ways.  

1. First, it notes that the Government no longer argues that authorization for detention comes from the President’s authorities under Article II of the Constitution, but from Congress’s Authorization for the Use of Military Force.  Hamlily at 1 n.1.  I suppose that’s refreshing from an overreaching-Executive perspective, but it still doesn’t change the fact that indefinite detention is still being sought.  
2. Second, Judge Bates bases his opinion on a prior, substantially similar case, Gherebi v. Obama, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009) which states that the law of war actually supports the detentions.  
3. Third, Judge Bates rejects the Government’s detainability framework–which includes “substantially support” (language cribbed from 18 U.S.C. § 2339A)–insomuch as it includes “support.”  (Everything else, as I’ve noted, is fine.)  The reason for this?  Judge Bates “can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of ’support’ as a valid ground for detention.”  Hamlily, at 7.
4. Fourth, Judge Bates has noted that the government has abandoned the argument that the detainees are “enemy combatants,” because such a classification doesn’t exist in a “non-international” conflict.  Id. at 13, citing Int’l Comm. of the Red Cross, Official Statement: The Relevance of IHL in the Context of Terrorism (July 21, 2005) available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/terrorism-ihl-210705. As such, “The Court also concludes that the authority claimed by the government to detain those who were “part of . . . Taliban or al Qaida forces” is consistent with the law of war. Even though this portion of the government’s framework is consistent with the law of war, however, the government’s position cannot be said to reflect customary international law because, candidly, none exists on this issue.” Id. at 15.

There are other nuggets in there, but that’s the gist of the opinion.  It’s surprising to see some of the things the Obama administration was asking for (such as advocating for the indefinite detention of those who provide financial support), and it really does make one ask what’s going on?  Is it, like some are arguing vis-a-vis the release of the abuse photos, that the Obama administration is really just trying to lay out a sop that will eventually get rejected?  If so, that’s a risky move, in my opinion, as Courts have been brow-beaten into submission to make sure they don’t step on the President’s toes.  See Hamlily at 6.  Or is it that Obama really has no interest in the Change message he ran on, as satirized by the Daily Show? 

Yes We Can…

I don’t know the answer, but I know I’m not the only one getting restive.

Windows 7 RC1

So I finally downloaded and installed the release candidate of Windows 7 Ultimate.  (Gizmodo has a bunch of resources on how to get it and make it work for you.)

Anyway, after a couple of hours of playing with it, these are my initial impressions:

1.  It was nice to be able to dual-boot Windows 7, rather than have it replace my Vista install altogether, a decision I am very glad I made, which I’ll get to in a moment.

2.  The included wallpapers are quite nice, especially the infamous “trippy” ones.  And the ability to have the desktop images rotate in a slideshow is something that I have always wanted to have implemented.  Still not included, however, is the ability to have different desktop images on each of your monitors.  This is something, by the way, that is possible when using DisplayFusion, which is a very nice piece of software.

3.  I’m not used to the new taskbar, but I’m sure I’ll get there eventually.

4.  For the moment, my internet connection is through a Netgear WG111v3 USB adapter, which didn’t work quite right even after installing the latest drivers from CD-ROM.  (I like how Netgear offered to let me download the latest ones rather than install off the CD-ROM, but isn’t that rather difficult if the adapter is your only method of connecting?)  But there is a nifty little up-arrow icon on the bottom right hand of the screen, that lets you take a look at all your connected devices.  Windows 7 recognized that the adapter wasn’t working correctly, and right-clicking on the icon gave me the option of having Windows figure it out.  Which it did.  No problem.  Definitely +1 on that.  

5.  Netflix doesn’t recognize Windows 7 as a valid operating system, and as such, you can’t stream movies.  Massive fail on Netflix’s part, if you ask me, because I suspect that it’s probably just a bit of code that says, essentially (and it’ll become quite apparent that I’m not a programmer here), “IF NOT Windows Vista; Windows XP; or OS X –>THEN FAIL.”  There is no reason, from everything I’ve read about Windows 7, that would make it incompatible with Netflix, because the guts of 7 are apparently the same guts as Vista, just tweaked to be more efficient.  I checked online for some solutions, but if there’s a solution that makes sense to me, I don’t see it.  One thing I thought about before falling asleep last night, however, is making use of the virtual XP environment to try Netflix that way.  Probably won’t work, though, as it seems that is the weakest feature of the whole bunch.

6.  Watching video on Hulu seemed to be slightly choppier than I had experienced through Vista.  There’s no real way to quantify this, it just seemed just a tidge more jittery.

7.  And, finally, somehow I have sound in Windows 7 but not in Windows Vista anymore.  (I use the HDMI-out from my computer’s nVidia card to provide video and sound to one of my monitors.)  Usually, a reboot solves the problem when the sound isn’t working right in Vista, but not for right now.  When I have more time, I’ll play with it some.

All in all, it isn’t the life-changing experience I expected, given the fawning reaction of the geeklords on the internets.  It’s nice, sure, but as I’m not terribly displeased with Vista, it’s not that big a deal to me.  Maybe after a little more playing, my song will change.

What I do find compelling is what Microsoft is doing here.  Vista is not a bad OS, but its reputation was slaughtered by the press.  (Okay, okay, there were a lot of problems at launch, but those problems have largely been rectified.)  Microsoft could have just let things stand and added improvements to Vista incrementally, as it did with XP, and left well enough alone.  But facing pressures from Apple and even Linux (to a small extent, and mostly in the Netbook arena) it didn’t do that.  Instead it announced a new OS, and let everyone in the world, pretty much, play with it.  It’s like Christmas in May.  Those who play with it seem to like it an awful lot, and will likely be willing to shell out whatever upgrade fees will apply to update their machines by the time the release candidate finally dies in June of 2010.  (Actually, beginning in March, the machines running the release candidate will begin to shut down every two hours, which is going to drive people nuts.)  

My only concern, and it is the concern that I think will determine whether Microsoft has really “changed,” is that we’re playing with the Ultimate edition, and it’s already been announced that the virtual XP mode won’t be available in the Home Premium flavor.  What else will be stripped?  Hopefully not the rotating desktops and sound themes.  But we’ll see.

Changing Antitrust Landscape

The United States Department of Justice Antitrust Division has signaled a change in how the federal government will be looking at anticompetitive behavior.  According to a press release issued today, “the Department is withdrawing, effective immediately, a report relating to monopolization offenses under the antitrust laws that was issued in September 2008. As of today, the Section 2 report will no longer be Department of Justice policy. Consumers, businesses, courts and antitrust practitioners should not rely on it as Department of Justice antitrust enforcement policy.”

Behind this shift in policy appears to be recognition that “recent developments in the marketplace should make it clear that we can no longer rely upon the marketplace alone to ensure that competition and consumers will be protected.”  

The New York Times has a little more information about the shift, including Assistant Attorney General Varney’s speech.  We are apparently about to see the return of late-90s enforcement policies, which led to suits against Intel and Microsoft.  Additionally, Google may be under the microscope, though Bloomberg states that Ms. Varney has declined to name the tech behemoth individually; speculation has been rampant as of late, however.  (See Ars Technica, TechCrunch, and others…)

Fiat’s Eyes May Be Too Big For Its Britches?

(Yes, I know I’m muddling up idioms…)

First, Chrysler.  Then Opel?  And Vauxhall?  And Saab?  If things shake out the way its been reported in the press the past couple of days, the Turin-based (or Torino, if you prefer) automaker is poised to become the second largest automaker in the world.  (After Toyota.)

Che?

That’s what’s being reported, anyway, in Bloomberg, which says “The Italian carmaker, having come to the rescue of Chrysler, is interested in acquiring Swedish carmaker Saab Automobile as [CEO Sergio] Marchionne tries to assemble a global auto group, including GM’s Opel and Vauxhall operations in Europe and Latin America.”

Who would have thought such a thing even a couple of years ago?  I know that Fiat’s have been incredibly popular in Europe as of late, but I would never have thought the company capable of becoming so powerful.  Very interesting, to say the least.

I will say this: if Fiat is successful in doing what is being reported, I want diesel Fiats on the road in America.  I had the opportunity to drive a Grande Punto 5-door in Europe last Summer.  The turbo diesel was satisfyingly rumbly (so what if it took a couple of turns of the key to gurgle to life?), felt more powerful and nimble than it really was, and quite fuel-efficient (somewhere in the mid-40s).  Where it distinguished itself was its road feel.  Top Gear had a joke last year when they reviewed an Alfa or a Fiat: they weren’t allowed to make hackneyed comments about “La Vita Bella.”  The truth is, though, it was a blast to drive, and it makes you feel all sorts of goofy things while you’re driving it.

Popular Mechanics agrees, by the way, including it as one of the cars it would like to see brought over in any sort of Chrysler-Fiat deal.  (If a Chrysler badge gets slapped on the thing, though, I expect it will sell about, oh, I don’t know, none of them.)

I hope it will happen, and, according to that Bloomberg article, Marchionne’s “goal is to sell the first Fiat 500 in the U.S. by the end of 2010.”  That bodes well, as the 500 is apparently an incredible car, the Abarth version even making the blokes on Top Gear happy.  It would be a formidible competitor to the Mini, which has been selling quite well in the U.S.  (According to Parkers.co.uk, the price range of the 500 is £8,100 – £13,250.  The Mini, by comparison is about twice that.)

So, here’s to seeing some fun, affordable cars on the road sometime soon. (Now if we can just do something about our damnable roads…)

Norman Hsu Pleads Guilty

Remember Norman Hsu?  His name was everywhere during the early portions of the Democratic primary season, primarily because he helped Hillary Clinton get beaucoup bucks.  (Obama, Biden, and Bill Richardson also received funds from Mr. Hsu.)  Once he got indicted, though, and after all the candidates had distanced themselves as much as possible, he largely disappeared from mainstream view.

Today, he’s back in the spotlight as, according to Bloomberg and others, he pleaded guilty to ten counts of mail and wire fraud in the Southern District of New York.  When he was indicted in 2007, he was charged with six counts each of mail and wire fraud, and three counts of campaign finance fraud.  What isn’t immediately clear is what will happen with the remaining counts.

Update:  Okay, there is an updated Bloomberg article now.  Looks like there was no plea deal, which is unsurprising as it would be rather surprising given that Mr. Hsu pleaded guilty to ten counts.  Also, it looks like he will continue to trial on the campaign finance fraud charges.

Federal Point Shaving Indictment

I don’t have any real basis for thinking this, but I suspect that most people probably think that point-shaving is undesirable behavior, but not necessarily criminal in nature.  Well, lest anyone think otherwise, the Detroit Free Press reports that six individuals have been indicted by a federal grand jury for allegedly violating 18 U.S.C. §§ 224 (“Bribery in Sporting Contests) and 1952 (“Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises”).

The general provisions of section 224 state that it is a crime for an individual to conspire with others “to carry into effect any scheme in commerce to influence, in any way, by bribery and sporting contest, with knowledge that the purpose of such scheme is to influence by bribery that contest.”  It is punishable by a fine, up to five years in prison, or both.

Section 1952 is somewhat different.  It states that it is a crime for a person “travel[] in interstate or foreign commerce or use[] the mail or any facility in interstate or foreign commerce,” with the intent to distribute the proceeds of any criminal activity; commit any crime of violence to further any unlawful activity (this is not alleged in the indictment); or otherwise promote the carrying on of any unlawful activity.  Punishment for violating section 1952 is a fine, up to five years in prison, or both, unless a crime of violence is committed, in which case, the punishment can be a fine, up to twenty years in prison (life if death occurs), or both.

The indictment has been thoughtfully posted by the Detroit Free Press.  As with all indictments, it must be remembered that the individuals involved are innocent until proven guilty, and that anything in an indictment is merely an allegation.

Hold the Fries, Please

Time has an article about how McDonald’s is doing relatively gangbuster business with its McCafé line of coffee drinks.  Now, I’ve never tried one, but I have heard one person describe a vanilla latte from McDonald’s as tasting like one of those cappuccinos you get from the gas station; fine if you’re looking for something incredibly sweet and vaguely coffee-tasting, but not really a latte.  But that’s anecdotal and based on an incredibly tiny sample size, and that’s not really the point.

The point is, profits at McDonald’s are up 4%, which is pretty impressive.  And the other point is that Starbucks’ earnings are down 77%.  Correlation? That’s certainly what seems to be implied.

But not necessarily.  For one thing, it appears that the lower earnings at Starbucks are due to, as Time puts it, “charges related to store closures and falling real estate values.”  Which doesn’t necessarily mean that people are ditching a somewhat relaxing time at Starbucks in favor of a trip to McDonald’s, despite what those irritating McDonald’s ads saying that drinking a latte from Starbucks turns you into a pretentious intellectual want you to think….  Wait what’s wrong with being a pretentious intellectual?

In any event, looking at Starbucks’ quarterly report, you can see that it had revenue of $2.3bn in Q2 of 2009, versus revenue of $2.5bn in Q2 of 2008.  That is down, no doubt, but “only” by about 7.6%.  By comparison, McDonald’s had revenues of $5.1bn in Q2 of 2009, compared to revenues of $5.6bn in Q2 of 2008, which is a decrease of about 10%.  So, while Starbucks pulls in about half the money McDonald’s does, I think it’s too much to say that McDonald’s is having Starbucks’ lunch.  Pardon the pun.

Now, I should make it clear that I frequent neither establishment regularly.  I will occasionally stop in to McDonald’s during a trip, but I don’t generally visit.  And I have no desire to drink one of their new McCafé things.  Mainly because of the afore-mentioned advertising campaign.  By the same token, however, I don’t regularly visit Starbucks.  This doesn’t really have anything to do with the price, as the price of drip coffee (my preference) is pretty much the same across the board: about $2.00 for a large.  It primarily has to do with the lack of free wireless internet connectivity.  I do a lot of work at coffeeshops, and having access to the internet is essential.  Now, I know that there are certain solutions available, such as signing up for a Starbucks Gold Card for $25.00 a year, that’ll give you two “free” hours of wireless a day, and I know if you sign up for new service with AT&T DSL Elite and Pro,  you can get free access to the AT&T hotspots.  But I’ve found a place I like, that doesn’t make me jump through hoops to get on the internet, and I’m sticking with it.  (So, in other words, I don’t have a dog in the fight.)

Bandwidth Conclusions

A couple of weeks ago, I posted some updated discoveries regarding bandwidth usage when streaming content.  My totals are, unfortunately, not much higher than they were when I posted that update.  I say “unfortunately” because the recent flooding in Houston really disrupted things for a while.

In any event, what did I learn?  Well, first of all, one should never expect constant throughput at maximum speeds.  For example, my DSL connection is through AT&T, and it is the “Elite” level, which is touted as having speeds “up to 6.0 Mbps.”  “Up to” is key here, as I have never once achieved that speed when testing it through tools like speedtest.net.  Usually it’s in the mid-fours.  And often much slower than that. And latency in Houston is usually absolutely terrible.  (I suppose it’s fortuitous, then, that I’m not really into on-line gaming, preferring the solitary experience…)

Second, I think there’s a limit to the speed levels offered by ISPs, and what my computer can actually handle.  I have no slouchy desktop machine; it’s got an AMD triple-core processor (64-bit), 4 Gigs of RAM, and even half a Gig of dedicated video memory.  I mean, it’s not a Falcon Northwest Mach 5 or anything like that (I don’t know if it’ll run Crysis, but I’m thinking probably not at full resolution), but it also didn’t cost 2100 bucks, either.  Anyway, I monitored throughput while downloading some Linux distros, and I noticed that as the throughput went above 500 KBps, my machine got sluggish.  I’m not certain why this is, but there you go.  (Also, this forum thread explains the whole “I have 6 Mbps service, why do I only get 500KBps?” question.  Hint:  capitalization matters.)

Third, streaming movies via Netflix does indeed gobble up bandwidth.  A month ago, I asked the question “Is that right?  Really? You could blow through even your Comcast bandwidth in less than 20 hours?  That doesn’t seem right…”  The answer is: Yes.  Sort of.  Netflix movies that stream with pretty good video quality do eat up about 1.5 Gigs of bandwidth per hour.  But my math was off by a power of ten.  (20 x 1.5 = 30, not 300!)

So, there you go.  As ISPs implement bandwidth caps, stream judicisously!