Kierkegaard Returns: The Highlights.

I'm back to my trusty computer again. Ready to try to get all caught up on the happenings in the legal world over the past few days. Here's a few quick highlights of what I've seen in my initial scanning of the blogroll and notable posts over the past few days:

NSA Surveillance Updates

Obviously lots of developments in the NSA Surveillance story. I've posted a bunch of updates to the Link Repository. A couple of interesting updates include these:

According to The Washington Post

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

. . .

Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the "reasonable belief" standard is merely the "probable cause" standard by another name.

Several FISA judges said they also remain puzzled by Bush's assertion that the court was not "agile" or "nimble" enough to help catch terrorists. The court had routinely approved emergency wiretaps 72 hours after they had begun, as FISA allows, and the court's actions in the days after the Sept. 11 attacks suggested that its judges were hardly unsympathetic to the needs of their nation at war.

But maybe even more interesting is this post over at The Washington Note. Steven Clemons points out a speech given by President Bush in Buffalo, NY, on April 20, 2004. During that speech, while trying to reassure spectators about the necessity and propriety of The Patriot Act, President Bush said:

So the first thing I want you to think about is, when you hear Patriot Act, is that we changed the law and the bureaucratic mind-set to allow for the sharing of information. It's vital. And others will describe what that means.

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

But a roving wiretap means -- it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he'd do? He'd get him another phone, particularly with the advent of the cell phones. And so he'd start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on -- roving wiretaps were available for chasing down drug lords. They weren't available for chasing down terrorists, see? And that didn't make any sense in the post-9/11 era. If we couldn't use a tool that we're using against mobsters on terrorists, something needed to happen.

The Patriot Act changed that. So with court order, law enforcement officials can now use what's called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.

Thirdly, to give you an example of what we're talking about, there's something called delayed notification warrants. Those are very important. I see some people, first responders nodding their heads about what they mean. These are a common tool used to catch mobsters. In other words, it allows people to collect data before everybody is aware of what's going on. It requires a court order. It requires protection under the law. We couldn't use these against terrorists, but we could use against gangs.

Just for emphasis, here's one portion of that excerpt again:

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

Interesting. I may not be the wisest man to walk the earth, but it certainly seems to me that those comments are somewhat contrary to what the administration is now saying about the NSA eavesdropping program.


Apparently Nevada Courts Suck

Last week over at Appellate Law & Practice, there was a post about a recent 9th Circuit Court of Appeals decision by Judge Alex Kozinski calling out the Nevada courts. The opinion starts out pretty ominously:

Petitioner spent 12 years in prison for conduct that is not a crime.

Basically, the Petitioner, Joni Goldyn, opened checking and savings accounts with a Nevada credit union which provided a "check guarantee card." Goldyn proceeded to deplete the funds in her accounts, used up a line of credit, and generated a negative balance. She kept writing checks, however, and the credit union continued to accept the checks because of the credit union guarantee card -- and the credit union continued to cover the checks. Goldyn was ultimately convicted of insufficient funds counts, was sentenced as a habitual criminal, and received FIVE LIFE SENTENCES. (Now I certainly don't want to suggest that fraud isn't serious or that it's ok to keep writing checks with no money or anything else -- but five life sentences? You can KILL people and not get a sentence like that.) In her habeas proceeding, Goldyn argued that she could not have written "bad checks" if the credit union was obligated to cover the checks (which they were).

The 9th Circuit ultimately concluded that Goldyn was correct -- her conduct, no matter how indefensible, was not properly prosecuted under the applicable statute. Then the Court started in on the Nevada court system.

Over the twelve years she spent in prison, Goldyn asserted her innocence seven times before three courts. Yet no court seems to have taken her argument seriously. The Nevada Supreme Court rejected Goldyn's argument with . . . incomplete analysis.
. . .
The state court also mentioned . . . irrelevant fact[s] . . .
. . .
The bottom line is that the checks Goldyn wrote were not bad, and the merchants who accepted her checks were not injured; they were paid in full.
. . .
. . . no rational judicial system would have upheld her conviction. We are saddened and disappointed that the state supreme court unanimously affirmed a conviction carrying multiple life sentences based on such cursory and inadequate review of the record in light of the applicable statute.
. . .
Had the Nevada courts and prosecutor's office taken more seriously their "obligation to serve the cause of justice," . . . Goldyn would not have spent twelve years behind bars for conduct that is not a crime.

Finally, in the last footnote to the opinion, the Court noted:

Because we are granting Goldyn's habeas petition for the reasons expressed above, we do not consider her numerous other claims, some of which raise similarly significant issues that cast further doubt on the state's commitment to the pursuit of justice in this case.

Well, then. I guess that's that.

Matthew Koso: Impregnated 14 Year Old, Married Her, Went to Prison

From Nebraska comes the story of Matthew Koso.

Koso, 23 years of age, impregnated a girl when she was only 13 years old. Shortly after her parents learned she was pregnant, they gave their consent for the girl and Koso to travel to Kansas to get married. The couple was married in Kansas on May 3, 2005. Nebraska Attorney General Jon Bruning did not feel that marriage between the 23 year old and his statutory rape victim was a good thing. So he filed charges against Koso.

Koso pled guilty to a sexual assault charge. On February 7, 2006, Koso was sentenced to 18 to 30 months in prison. Part of what prevented Koso from getting probation was the fact that Koso continued to have sex with the girl after they were married.

Koso's wife urged for leniency at sentencing, telling the judge, "If you send my husband to jail, maybe you'll see my daughter here in 15 years." That's likely. But it's NOT because Koso is being sent to jail; it's because these people see nothing wrong with their situation. The mentality was further evident when friends of the couple were interviewed and made comments like, "You can't go home and love your wife?" [asked Danielle Vollman, a friend of Koso's wife].

This case apparently prompted Kansas to introduce a bill banning marriage for anyone 15 and under and preserving the requirement for parental or judicial consent for those age 16 or 17. What I'm waiting to see is what happens when this guy gets out and his wife is still under the age of 16. Will the couple have enough sense to not engage in further sex, or will they risk additional charges and jail time?

More: Cnn.com