Does it really matter what Jodi Arias wants?

By: Melinda Joiner – Student Blawg

In an interview with Phoenix television station KSAZ just moments after the jury returned their verdict, thirty-two year old Jodi Arias had the audacity to say, “I believe death is the ultimate freedom, so I’d rather just have my freedom as soon as I can get it…I would much rather die sooner than later.” Unfortunately, Jodi, you lost your freedom when the jury convicted you of first-degree murder. Your fate lies in the hands of the jury.

Yesterday, an Arizona jury convicted Arias of first-degree murder for stabbing her ex-boyfriend Travis Alexander twenty times, shooting him in the face, and cutting his neck, nearly decapitating him back in 2008. If the jury finds that ‘the murder was committed in an especially heinous, cruel, or depraved manner,’ Arias could face the death penalty. If they are unable to establish at least one aggravating circumstance, Arias would face the dreaded life in prison sentence.

I’m usually not one to express my opinion, but I was flabbergasted when I read her statement regarding her punishment preference. Who cares what her preference is? Not only did she commit murder. She committed it in a horrific manner. How can anyone convicted of such a heinous crime expect his or her “freedom?” All I could think when I saw Arias’ statement was “I hope the jury gives her exactly what she doesn’t want: life in prison.”

Last month Arias’ attorney filed a motion to have jury members sequestered, stating to the judge ‘The court asks the question of the jurors every morning, “Have you seen anything on the media?” No one raises their hand…To believe that to be true is to believe an absolute fiction. It is a fairytale to assume that this jury is not hearing any of this. It is all over the news, be it local or national.’ The judge denied the motion urging the jurors to avoid all media coverage of the trial. However, if I was a member of the jury and accidentally saw or heard Arias’ statement, I would find it extremely difficult to cast it aside and determine her punishment solely on the heinousness of her crime. Every fiber of my being would want to give her a lifetime in prison punished by her own thoughts and feelings.

After a bomb threat at the courthouse where the trial was being held and the rescheduling of the aggravation phase of the trial (where the jury will determine whether or not the death penalty may be imposed) today, we will have to wait until next Wednesday for the jury to begin the process to determine if Jodi Arias will get her wish.

Sources:

http://www.cnn.com/2013/05/09/justice/arizona-jodi-arias-trial/?hpt=hp_c2

http://abcnews.go.com/US/jodi-arias-lawyer-asks-jurors-sequestered/story?id=18876926#.UYyz8LWceSp

http://usnews.nbcnews.com/_news/2013/05/08/18128048-jury-finds-jodi-arias-guilty-of-first-degree-murder?lite

http://www.foxnews.com/on-air/on-the-record/2013/05/09/exclusive-jodi-arias-interview-death-ultimate-freedom-so-id-rather-just-have-my-freedom

https://www.azag.gov/sites/default/files/sites/all/docs/Criminal/ccc/Final-CapPun.pdf


9th Circuit Agrees Righthaven Lacks Standing to sue on Copyrights

Today the 9th Circuit upheld a California District Court determination that Righthaven failed to have standing to sue on copyrights it acquired.  Congrats go out to my good friends Marc Randazza and Jay DeVoy for their awesome job on this case.

The 9th Circuit determined the agreements assigning Righthaven LLC the bare right to sue for infringement of newspaper articles, without the transfer of any associated exclusive rights in the articles, did not confer standing to Righthaven to sue.

 Underlying facts:

 Plaintiff Righthaven LLC was founded, according to its charter, to identify copyright infringements on behalf of third parties, receive “limited, revocable assignment[s]” of those copyrights, and then sue the infringers.

 Righthaven was not the original owner of the copyrights in these articles. Stephens Media LLC, the company that owns the Las Vegas Review-Journal, held them at the time defendants posted the articles. After the alleged infringements occurred, but before Righthaven filed these suits, Stephens Media and Righthaven executed a copyright assignment agreement for each article. Each copyright assignment provided that, “subject to [Stephens Media’s] rights of reversion,” Stephens Media granted to Righthaven “all copyrights requisite to have Righthaven recognized as the copyright owner of the Work for purposes of Righthaven being able to claim ownership as well as the right to seek redress for past, present, and future infringements of the copyright . . .in and to the Work.”

 Righthaven and Stephens Media had previously entered into a Strategic Alliance Agreement (“SAA”), however, that controlled what Righthaven could do with any copyrights assigned to it. After assignment of a copyright, Righthaven was to search for instances of infringement. When Righthaven found an infringement, it could pursue the infringer, but that right was subject to Stephens Media’s veto.

 If Righthaven did not obtain a settlement or initiate litigation, it had to reassign the copyright to Stephens Media. Righthaven was required to split any recovery it received with Stephens Media.

The SAA also placed sharp limits on what Righthaven could do with any assigned copyright. Righthaven had no right to exploit the copyrights or participate in any royalties.

 Stephens Media retained “an exclusive license” to exploit the copyrights “for any lawful purpose whatsoever,” and to the extent that Righthaven’s pursuit of infringement would “in any manner” diminish Stephens Media’s right to exploit the assigned copyrights, Righthaven granted a license to Stephens Media “to the greatest extent permitted by law so that Stephens Media shall have unfettered and exclusive ability” to exploit its copyrights. Moreover, by providing Righthaven thirty days prior notice, Stephens Media could revert the ownership of any assigned copyright back to itself.

 After Righthaven filed suit against [the defendants], each defendant filed a motion to dismiss for lack of standing. Righthaven and Stephens Media subsequently executed a “Clarification and Amendment to Strategic Alliance Agreement.” The agreement purported to clarify that the parties’ intent in entering the SAA was to “convey all ownership rights in and to any identified Work to Righthaven through a Copyright Assignment so that Righthaven would be the rightful owner of the identified Work.”

Read the opinion here.

See related.


Celebrities Voice Their Support for Hawaii Privacy Bill

~by Sonya Gillen (Student Blawg)

They say justice is blind: but ideally she is not deaf.  At least that is what Steven Tyler is hoping.  The lead singer of Aerosmith, along with fellow rocker Mick Fleetwood of Fleetwood Mac, testified on February 8, 2013, before a Hawaii Senate hearing in support of Hawaii S.B. 465, otherwise known as The Steven Tyler Act.

The bill, written by Tyler’s entertainment attorney, Dina LaPlot, and introduced by Democratic Hawaiian State Senator Kalani English, provides for a civil cause of action for invasion of privacy in addition to the current physical invasion of privacy in the State of Hawaii.  The Tyler Act was recently amended by the Hawaii Senate Judiciary and Labor Committee to strongly resemble the California Anti-Paparazzi Law (California Civil Code 1708.8).  California is the first, and only state to pass anti-paparazzi legislation. The California legislation was signed into law under then Governor and former celebrity Arnold Schwarzenegger and enacted on January 1, 1999.

Proponents for the Hawaii Privacy Bill say that it will help protect vacationing celebrities from overzealous paparazzi and therefore will encourage celebrities to vacation in Hawaii.  If enacted, the new law will make a person liable for civil action resulting in general, special and punitive damages equal to three times the amount of general and special damages combined if a person engages in constructive invasion of privacy.  Under the act, “A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.”

Fellow celebrities, such as Neil Diamond, Avril Lavigne, Brittney Spears, and Tommy Lee among others, showed their support for the bill by sending individual written statements, all with the same content, to the Hawaii State Senate.  The group wrote, “Enacting SB465 would provide me and other public figures with a peace of mind that is nearly impossible to find in Hawaii because of the rampant paparazzi”.

The Hawaiian Attorney General, the ACLU of Hawaii, the Motion Picture Association of America and some local citizens oppose the legislation, saying the bill violates the First Amendment of the United States Constitution and Article 1, Section 4 of the Hawaii Constitution; is overbroad and unnecessary; and will have a chilling effect on legitimate press coverage.  Laurie Temple of the Hawaii chapter of the ACLU wrote, “Current state laws regarding trespass, invasion of privacy, and harassment, e.g. can more than handle the privacy, free speech and safety concerns of Hawaii’s residents and visitors.” In their memo to address First Amendment concerns regarding the publication of the illegally obtained pictures, the Motion Picture Association citied New York Times Co. v. United States, 403 U.S. 713 (1971) which established the right of a newspaper to publish knowingly illegally stolen materials and Vartnicki et al. v. Vopper, et al., 532 U.S. 514, at 534 (2001) which held that illegally intercepted communications were protected by the First Amendment.

Tyler’s attorney, Dina LaPolt, defended the legislation and its First Amendment constitutionality, citing Time, Inc v. Hill (1967) saying, “the Supreme Court of the United States held that the action of intrusion (i.e. paparazzi constructively invading a public figure’s privacy) does not itself raise First Amendment concerns because it does not involve speech or other expression.”

The legislation easily passed the Senate, but is now encountering problems in the House of Representatives, who are essentially telling Tyler to “Dream On”.  (Sorry, you knew there had to be at least one silly Aerosmith pun in a blog that focuses on Steven Tyler)  Rep. Angus McKelvey who is the head of the Hawaiian Consumer Protection Committee is quoted as telling a representative from the Associated Press, “There is zero support for that legislation in the House of Representatives”.  The bill seems to be stalling in committee.  Commenting on the likelihood of the House committee leaders putting in a joint request to the Speaker of the House to move the bill forward, McKelvey commented, “There is a better chance of people flapping their arms and flying from Lanai to Maui.”  (Well, there probably will be no backstage passes in his future)

Although it is currently stalled, the legislation may not be officially dead.   It may be the “Same Old Song and Dance”(Ugh, sorry again) for the legislation in the future. When the Senate Judiciary and Labor Committee revised the original version of the bill, they changed the effective date from July 1, 2013 to July 1, 2050 to allow time for further discussion on the bill.  “I was very surprised we got out of the Senate on the first run,” LaPolt said. “If it had passed through the House, I would have been shocked.”  For Tyler and LaPolt, at least the publicity generated by the legislation has no doubt been a “Sweet Emotion”. (not sorry on that one!)


Supreme Court: Dog Sniffs At Persons’ Homes Are Searches Requiring Probable Cause Under the Fourth Amendment

Washington, DC (March 26, 2013) – In its decision in Florida v. Jardines (11-564), the U.S. Supreme Court today upheld the Florida Supreme Court, which affirmed the suppression of marijuana evidence unearthed by law enforcement arising out of their use of a canine sniff at Mr. Jardines’s front door without probable cause. This is the second dog sniff opinion of the term. This time, though, the Court sided with personal rights over law enforcement’s use of enhanced searching technologies.

In summary,

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

 As in United States v. Jones, the GPS case from last term, the Court’s majority today reaffirmed a centuries-old tradition to “keep easy cases easy”—the government must obtain a warrant before it may intrude upon private property in order to gather evidence of a crime.  By finding the conduct of law enforcement in this case to have violated a person’s constitutional right to protection from unwarranted search and seizure, the Supreme Court made clear today that the Fourth Amendment is not, in fact, dead.

The use of a trained police narcotics dog is no different than the use of GPS or thermal heat imaging technology. Law enforcement may not use enhanced search technologies to intrude upon private spaces without a warrant. Today’s ruling reinforces the old adage that “a man’s home is his castle” and the Government, even in the form of a “drug sniffing” dog, cannot intrude on that fundamental right with the purpose of gathering incriminating evidence without a warrant.

Some highlights from the opinion:

 (a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3.

(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170, 180. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12.

(c) The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares,” California v. Ciraolo, 476 U. S. 207, 213, but “no man can set his foot upon his neighbor’s close without his leave,” Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.

(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347.

And the best part about it: Scalia delivered it!

A link to the Supreme Court’s opinion in Florida v. Jardines is available here.


Used, abused and resold: “first sale” applies to works made abroad

~ By Sara Boyd (Student Blawg)

Overshadowed by arguments about same-sex marriage rights and affirmative action, the court handed down an opinion that has a global impact on copyright and consumerism. Although it is unlikely that any American will realize the ripple of change considering many didn’t know there was ever an argument about it.

 That issue was whether the “first sale” doctrine applied to foreign produced copies of American copyrighted materials. The scenario of Kirtsaeng v. Wiley goes like this: Mr. Kirtsaeng came to the United States from Thailand to study. In order to supplement his income while in school, he formulated a plan to have his family purchase international editions of textbooks in Thailand, ship them to him in the U.S. and resell them, at a profit, on Ebay. There is no argument about the legitimacy of the textbooks as they were not pirated. The problem which arose was whether the “first sale” doctrine should apply and thus the importation would have been legal. In the internet-centric, global world we live in, it is hard to believe that a product lawfully manufactured overseas would be subject to different laws than one produced here.

 Let’s begin by looking at the first sale doctrine. Briefly, Section 109(a) is the principle that once the owner of genuine copyrighted material distributes it, the buyer can treat the object as his/her own and freely sell, lease, or lend the work to another. There are, however, two more clauses of the Copyright Act that were pertinent to this case. First, Section 602 subsection (a) is the importation clause. In essence it says that you cannot import copyrighted material without the permission of the copyright holder. If you do not obtain that permission, it is infringement of their (the copyright holder’s) right to distribute their materials under section 106; which leads us to section 106 subsection (3). Pretty much this section just says the copyright holder has the exclusive right to distribute their work as they see fit. However, it is subject to sections 107 through 122. And low and behold would you believe it, the first sale doctrine is section 109. How circuitous! This seems like an exclusion to the importation clause. The main crux of this case was section 109(a)’s five little words: “lawfully made under this title” and how circuitous the Copyright Act really is. Does “lawfully made under this title” mean subject to the Copyright Act or made where the Copyright Act is applicable? The court chose the non-geographical interpretation and subsequent interdependency of the Copyright Act sections.

 Breyer favored an Occam’s razor approach to interpreting the key “five little words” in section 109(a) and thank goodness! Had the vote had swayed the other way you would have been an unwitting mule to copyright infringement having purchased that romantic teen vampire novel (given it was manufactured overseas) before boarding the plane heading home and subsequently “importing” it to the States. Had the vote swayed the other way, once you remembered that you are not a fifteen year old girl and thus the book was a bit age “inappropriate” you could never lawfully rid yourself of it without obtaining the oh-so humble authorization of the copyright holder. And really, who has time for that? Fifteen year old girls that’s who. Instead we shall continue our blissful ignorance that a doctrine we have all taken for granted applies to any good with an American copyright attached to it in the entire world. Doesn’t it just make you want to go out and buy foreign manufactured stuff just to exercise your rights as an American consumer?

 In the strangest and slightly disconcerting collection of dissenting Justices (Ginsburg, Kennedy and Scalia) ever, Ginsburg describes her belief that America is hesitant to move towards “international exhaustion.” The flaw in her argument is that so many people have operated as if this decision had always been the law. Breyer touches on this when he quotes the used book dealers saying “they have, ‘operat[ed]…for centuries’ under the assumption that the ‘first sale’ doctrine applies.” It isn’t just the used book dealers, it’s practically every American. Never have I once stopped to consider where my copy of “Twilight” was manufactured before I used it as camp fire kindling. The “world is flat” as Thomas Friedman reminded us in 2005 and now is no time to revert to the ostrich with its head in the sand, isolationist ideology.

Read the opinion here.


Because sometimes the finger just isn’t enough…

I have to appreciate the New York Courts and the recent decisions that have come through the gates.  Recently, I wrote about how giving a cop the finger didn’t amount to reasonable suspicion to warrant an investigation by that officer.  (See Hello Officer, Read my Middle Finger!).  Yesterday, the New York Court of Appeals declared swearing at a police officer equally didn’t amount to the commission of a crime or probable cause.

Here are the facts:

… Officer Johnson and another police officer were parked in separate marked police vehicles on a residential street in Rochester. Johnson noticed that a woman (later determined to be defendant’s girlfriend) was standing in front of a house across the street from where he was parked and was videotaping his activities. Curious about the woman’s identity, Johnson ran the license plate of a Cadillac that was parked in her driveway and discovered that the plate number had been issued for a Toyota — not a Cadillac.

Johnson briefly stepped out of his car to ask who owned the automobile and the woman responded that it was her grandfather’s vehicle. The officer then reentered his patrol car. A few minutes later, defendant Trevis Baker approached the open passenger-side window of Johnson’s car, leaned his head in and inquired why Johnson had checked the license plate. Johnson said something to the effect that he could run a plate if he wanted to.

Defendant started backing away from the police vehicle towards the middle of the street, swearing at the officer. When Officer Johnson asked “what did you say,” defendant repeated the profanity and accused Johnson of harassing him. After radioing his partner that he intended to make an arrest, Johnson exited his vehicle and, with the assistance of his partner, placed defendant under arrest. These activities apparently attracted the attention of various civilian bystanders and, by the time of the arrest, about ten people had congregated on the sidewalk behind defendant and his girlfriend. In a search incident to arrest, the police discovered that defendant was in possession of 25 bags of crack cocaine.

 Based on these facts, Baker was arrested and charged with possession of a controlled substance and disorderly conduct. Baker attorney argued at a suppression hearing, that “the First Amendment protects the right of a citizen to express disagreement with police actions, which was precisely all that defendant was doing in this case.”

The trial court denied Barker’s motion to suppress evidence and to dismiss the case.  But the Court of Appeals had a different view, deciding that the proof was insufficient to support a finding of probable cause to arrest because there was no “public harm”  in Barker’s statements.

 The court rationalized because the swearing at the police officer occurred

 During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. It is clear from the videotape that the public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct — defendant was stepping away from the vehicle when he made them.

 And my favorite part of the opinion,

there is no basis to infer that Officer Johnson felt threatened by the statements. If he had, he would likely have remained in his vehicle, rolled up the windows, radioed his partner to do the same and requested backup.

 If you’re scared, you stay in your car. You don’t do what Officer Johnson did…

Instead, Johnson immediately exited his vehicle. The fact that another police officer was present — also safely ensconced inside his own patrol car and fully able to provide assistance — diluted the risk that others in the vicinity would join forces with defendant and gang up on Johnson.

 Brilliant!

And the last important aspect of the case, the exchange occurred between a single civilian and a police officer. Baker’s statements were directed exclusively at a police officer who, according to the courts, is “a party trained to diffuse situations involving angry or emotionally distraught persons,” which further undermined any threat of public harm because the police officer was in a position of safety and could have closed his windows and ignored Baker.

Here’s the Opinion.


Social media prohibition, unconstitutional

The 7th Circuit court of appeals yesterday declared an outright ban on social media usage by convicted sex offenders to be a violation of the First Amendment. At the crux of the arguments is the public’s right to be protected from convicted sex offenders and the offender’s right to send and receive information – a core, fundamental concept under the First Amendment. The 7th Circuit recognized this conflict, but ruled that an outright ban on such information, even to sex offenders, violates the First Amendment. The court stated,

The state initially asserts an interest in “protecting public safety, and specifically in protecting minors from harmful online communications.” Indiana is certainly justified in shielding its children from improper sexual communication. Doe agrees, but argues the state burdens substantially more speech than necessary to serve the intended interest. Indiana naturally counters that the law’s breadth is necessary to achieve its goal.

The Sate of Indiana agreed that the goal of its statute was to curtail communication between convicted sex offenders and minors. However, the Court did not believe the statute was tailored in a fashion to limit such conduct, but instead cast a broader net, restricting speech that did not meet the ends of the Indiana law.

Turning to the Indiana statute, the state agrees there is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors. Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress. Even the district court agreed with this sentiment, stating the law “captures considerable conduct that has nothing to do” with minors. Indiana prevents Doe from using social networking sites for fear that he might, subsequent to logging on to the website or program, engage in activity that Indiana is entitled to prevent.

I have followed cases like this one for quite sometime. The general consensus among the appeals courts is any form of “blanket prohibition” on Internet, or social media usage, will be a violation of the First Amendment. This issue has not directly been decided by the US Supreme Court, but the consensus among the circuit courts of appeal, and many state supreme courts, indicates a blanket prohibition will likely be overturned.

Here’s the opinion.


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