Blog Jay Leiderman Law

jay leiderman holiday wishes

A special holiday time JL Law avatar for my special clients, potential clients, friends and folks that one day will be friends.  Attorney Jay Leiderman and the staff at Jay Leiderman Law wish you all the best!

 

jay leiderman

Wishing you a happy holidays

 

Attorney Jay Leiderman and all the staff at Jay Leiderman Law, California State Bar Certified Criminal Law Specialists wish you and yours a very happy holidays.  Merry Christmas, Happy Hannukah, Happy Kwanza and a very prosperous New Year.

Jay Leiderman is a criminal defense attorney in Ventura, California. He co-authored the first ever book on the legal defense of California medical marijuana crimes and has been called the “Hacktivist’s Advocate” for his work defending those accused of computer crimes. He has been recognized and won awards for going above and beyond to represent clients accused of all sorts of crimes. Jay frequently lectures around the state and nation on various criminal defense topics.

Other noteworthy cases Leiderman defended include People v. Diaz, which went to the California Supreme Court and made law on the ability of police to search a cell phone, Louis Gonzalez, who was falsely accused of rape, attempted murder and torture by the mother of his child and was jailed for 83 days before he was released and ultimately found factually innocent, the Andrew Luster or so-called “Max Factor” heir habeas corpus proceeding, wherein his sentence was reduced by 74 years the first-ever trial of medical marijuana defendants in San Luis Obispo County, California County, and Ventura County, California’s first ever concentrated Mexican Mafia prosecution – the largest case in the history of Ventura County.

Leiderman co-authored a book on the legal defense of California medical marijuana crimes, which was published by NORML, the National Organization For the Reform of Marijuana Laws. He is also a founding member of the Whistleblower’s Defense League, “formed to combat what they describe as the
FBI and Justice Department’s use of harassment and over-prosecution to chill and silence those who engage in journalism, Internet activism or dissent.” Leiderman frequently comments in diverse areas of the media about criminal and social justice issues. He also lectures around the state and nation on various criminal defense topics.

 

 

twitter Facebooktwittergoogle_pluslinkedinmail

Afternoon Show   →   Opinion: Manning trial is about ‘the public’s right to know what their government is up to’

Jun 3, 2013 14:56

WASHINGTON — The Bradley Manning trial began Monday at Fort Meade, MD. In February, Manning pleaded guilty to lesser charges that could result in 20 years behind bars, but prosecutors are hoping for an “aiding the enemy” charge that could result in life behind bars.

Voice of Russia’s Rob Sachs talks with Jay Leiderman, a lawyer based in California who often represents those in the internet hacking community

 Bradley Manning

Please visit the Bradley Manning Support Network to learn more about the case. 

“If you had free reign over classified networks… and you saw incredible things, awful things… things that belonged in the public domain, and not on some server stored in a dark room in Washington DC… what would you do?”

“God knows what happens now.  Hopefully worldwide discussion, debates, and reforms… I want people to see the truth… because without information, you cannot make informed decisions as a public.”

-Quotes from an online chat attributed to Bradley Manning

Bradley ManningNobel Peace Prize nominee PFC Bradley Manning, a 25-year-old Army intelligence analyst, who released the Collateral Murder video, that shows the killing of unarmed civilians and two Reuters journalists, by a US Apache helicopter crew in Iraq. Manning also shared documents known as the Afghan War Diary, the Iraq War Logs, and series of embarrassing US diplomatic cables. These documents were published by the anti-secrecy website WikiLeaks, and they have illuminated such issues as the true number and cause of civilian casualties in Iraq, along with a number of human rights abuses by U.S.-funded contractors and foreign militaries, and the role that spying and bribes play in international diplomacy. Given the war crimes exposed by these documents,  PFC Bradley Manning should be given a medal of honor.

Read more about Bradley Manning here.

twitter Facebooktwittergoogle_pluslinkedinmail

Trial Counsel failed to do any investigation into the mitigating facts of this case.  There was no evidence of good character or mental illness provided to the court.

Petitioner’s trial attorneys failed to raise any issue about petitioner’s mental health at any time.  This would have served to explain the context in which these crimes were committed and thereby undo the media’s and prosecution’s portrayal of petitioner as a predator.  The attorneys do not appear to have ever done a psychiatric work-up on petitioner.[1]  Nothing at all was done to counter the perception that petitioner was a monster

[1] See Wiggins v. Smith, 539 U.S. 510 (2003) (it is not a “tactical decision to fail to make a psychiatric investigation); see also Rompilla v. Beard, 545 U.S, 374 (2005) (failure to obtain relevant background records is ineffective assistance of counsel). Wiggins has a particularly telli ng passage: “any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner’s background.”

Ineffective assistance of counsel

 

The Supreme Court Syllabus for Rompilla v Beard is as follows:


Petitioner Rompilla was convicted of murder and other crimes. During the penalty phase, the jury found the aggravating factors that the murder was committed during a felony, that it was committed by torture, and that Rompilla had a significant history of felony convictions indicating the use or threat of violence. In mitigation, five members of Rompilla’s family beseeched the jury for mercy. He was sentenced to death, and the Pennsylvania Supreme Court affirmed. His new lawyers filed for state postconviction relief, claiming ineffective assistance by his trial counsel in failing to present significant mitigating evidence about Rompilla’s childhood, mental capacity and health, and alcoholism. The state courts found that trial counsel had sufficiently investigated the mitigation possibilities. Rompilla then raised inadequate representation in a federal habeas petition. The District Court found that the State Supreme Court had unreasonably applied Strickland v. Washington, 466 U.S. 668, concluding that trial counsel had not investigated obvious signs that Rompilla had a troubled childhood and suffered from mental illness and alcoholism, unjustifiably relying instead on Rompilla’s own description of an unexceptional background. In reversing, the Third Circuit found nothing unreasonable in the state court’s application of Strickland, given defense counsel’s efforts to uncover mitigation evidence from Rompilla, certain family members, and three mental health experts. The court distinguished Wiggins v. Smith, 539 U.S. 510–in which counsel had failed to investigate adequately to the point of ignoring the leads their limited enquiry yielded–noting that, although trial counsel did not unearth useful information in Rompilla’s school, medical, police, and prison records, their investigation had gone far enough to give them reason to think that further efforts would not be a wise use of their limited resources.

Held: Even when a capital defendant and his family members have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the trial’s sentencing phase. Pp. 4—18.

    (a) Rompilla’s entitlement to federal habeas relief turns on showing that the state court’s resolution of his ineffective-assistance claim under Strickland “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” this Court, 28 U.S.C. § 2254(d)(1). The state court’s result must be not only incorrect but also objectively unreasonable. Wiggins, supra, at 520—521. In judging the defense’s investigation in preparing for a capital trial’s sentencing phase, hindsight is discounted by pegging adequacy to “counsel’s perspective at the time” investigative decisions were made and by giving deference to counsel’s judgments. Strickland, supra, at 689, 691. Pp. 4—5.

    (b) Here, the lawyers were deficient in failing to examine the court file on Rompilla’s prior rape and assault conviction. They knew that the Commonwealth intended to seek the death penalty by proving that Rompilla had a significant history of felony convictions indicating the use or threat of violence, that it would attempt to establish this history by proving the prior conviction, and that it would emphasize his violent character by introducing a transcript of the rape victim’s trial testimony. Although the prior conviction file was a public record, readily available at the courthouse where Rompilla was to be tried, counsel looked at no part of it until warned by the prosecution a second time, and even then did not examine the entire file. With every effort to view the facts as a defense lawyer would have at the time, it is difficult to see how counsel could have failed to realize that not examining the file would seriously compromise their opportunity to respond to an aggravation case. Their duty to make all reasonable efforts to learn what they could about the offense the prosecution was going to use certainly included obtaining the Commonwealth’s own readily available file to learn what it knew about the crime, to discover any mitigating evidence it would downplay, and to anticipate the details it would emphasize. The obligation to examine the file was particularly pressing here because the violent prior offense was similar to the crime charged and because Rompilla’s sentencing strategy stressed residual doubt. This obligation is not just common sense, but is also described in the American Bar Association Standards for Criminal Justice, which are “ ‘guides to determining what is reasonable,’ ”Wiggins, supra, at 524. The state court’s conclusion that defense counsel’s efforts to find mitigating evidence by other means were enough to free them from further enquiry fails to answer the considerations set out here, to the point of being objectively unreasonable. No reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations what they recalled. Nor would a reasonable lawyer compare possible searches for school reports, juvenile records, and evidence of drinking habits to the opportunity to take a look at a file disclosing what the prosecutor knows and plans to read from in his case. Pp. 5—14.

    (c) Because the state courts found counsel’s representation adequate, they never reached the prejudice element of a Stricklandclaim, whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result … would have been different,” 466 U.S., at 694. A de novo examination of this element shows that counsel’s lapse was prejudicial. Had they looked at the prior conviction file, they would have found a range of mitigation leads that no other source had opened up. The imprisonment records contained in that file pictured Rompilla’s childhood and mental health very differently from anything they had seen or heard. The accumulated entries–e.g., that Rompilla had a series of incarcerations, often related to alcohol; and test results that would have pointed the defense’s mental health experts to schizophrenia and other disorders–would have destroyed the benign conception of Rompilla’s upbringing and mental capacity counsel had formed from talking to five family members and from the mental health experts’ reports. Further effort would presumably have unearthed much of the material postconviction counsel found. Alerted to the school, medical, and prison records that trial counsel never saw, postconviction counsel found red flags pointing up a need for further testing, which revealed organic brain damage and childhood problems probably related to fetal alcohol syndrome. These findings in turn would probably have prompted a look at easily available school and juvenile records, which showed additional problems, including evidence of a highly abusive home life. The evidence adds up to a mitigation case bearing no relation to the few naked pleas for mercy actually put before the jury. The undiscovered “mitigating evidence, taken as a whole, ‘might well have influenced the jury’s appraisal’ of [Rompilla’s] culpability,” Wiggins, supra, at 538, and the likelihood of a different result had the evidence gone in is “sufficient to undermine confidence in the outcome” actually reached at sentencing, Strickland, supra, at 694. Pp. 14—18.

twitter Facebooktwittergoogle_pluslinkedinmail

This article examines Andrew “weev” Aurenheimer’s case in between his conviction and his victory on appeal.  He was convicted of aggravated identity theft and sentenced to 41 months in federal prison.  He served 19 months before his release after his appeal.  weev, via his company “Goatse Security” found a gaping hole in AT&T’s original iPad and turned the information over to Gawker.  He was prosecuted for releasing the names of those affected by AT&T’s poor security. I have only excerpted the parts where I am quoted.  The full article can be found here: http://suicidegirls.com/news/culture/25394/We-Are-Weev/

 ***

These days, it’s kinda like your computer illiterate granddad is laying down the law on the internet. Only worse. Cause your computer illiterate granddad doesn’t have the power to send your ass to jail for longer than most rapists for the crime of clicking on the wrong http link. Which is something the US government is trying to do. Fo’ realz. Yep. That.

Case in point. Andrew Alan Escher Auernheimer, a.k.a. @rabite, a.k.a. Weev. He’s just been found guilty on one count of not actually hacking anything and one count of having a list of email addresses, even though no one bothered to prove he ever actually had ’em, tho everyone agrees his mate did. Confusing right? You can totally imagine Gramps throwing his hands in the air at this point and saying to hell with this good-for-nothing with two too many silly-ass names – which is pretty much what the US government is doing.

Part of the problem is that the laws Andrew Alan Escher Auernheimer, fuck it, let’s just call him Weev, has been found guilty of violating – which came into being under the 1986 Computer Fraud and Abuse Act (CFAA) – predate Hypertext Transfer Protocol, the first documented version of which, V0.9, was codified in 1991. 

***

weev

The Computer Fraud and Abuse Act (CFAA) is a horse and buggy law in a jet plane society

***

I’m chatting with Jay Leiderman, a chap who knows a thing or three about the law and the internet. He’s an elite California State Bar Certified Criminal Law Specialist-grade lawyer who’s defended several high profile hacktivist types, including Raynaldo Rivera of LulzSec and Commander X of the Peoples Liberation Front. He also happens to be a Twitter ninja, which is how I got to know him. A quick perusal of his @JayLeidermanLaw twitter feed will tell you Jay’s a rare legit legal animal who clearly gets today’s wobbly whirly web, which is why I called him up to discuss Weev’s wobbly whirly situation…

***

That might sound rather dramatic, but Jay, my favorite SG-lovin’ lawyer agrees. “Based upon this case, the government’s new position is that you are required to be clairvoyant in terms of determining what a protected computer is and what a non protected one is,” he tells me. “From now on you have to be a psychic…because if it isn’t password protected but it’s a ‘protected computer’ you’re potentially going to be found guilty like Weev was.”

there no reward for helping these companies patch their holes

***

“Perhaps the greatest lesson of Weev’s case is that not only is there no reward for helping these companies patch their holes and fix themselves, indeed now you’re going to be facing ten or fifteen years of prison if you do,” says Jay. “What’s the incentive to make these companies more secure? I mean, you’re better off just hacking them now. You’re better off just hacking these companies and not telling them. If you get caught essentially you’re facing about the same punishment anyway so what’s the difference?”

***

 

twitter Facebooktwittergoogle_pluslinkedinmail

“The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense.” In re Winship, 397 U.S. 358, 364 (1970). Jury instructions relieving States of this burden violate a defendant’s XIV Amendment due process rights. See Francis v. Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana, 442 U.S. 510 (1979). Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases.” Carella v. California (1989) 491 U.S. 263, 265. Jury instructions which tell a jury that an element has been met already fall under a category of Due Process violations.  Thus, the verdicts are infirm as to all the counts of 261(a)(3) involving the victim. Since those counts led to the imposition of a sentence of years in prison, the error was not harmless beyond a reasonable doubt.

due process

The 14th Amendment extended the rights to due process and equal protection to the states

 

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures. Most of this essay concerns that promise. We should briefly note, however, three other uses these words have had in American constitutional law.

no one shall be “deprived of life, liberty or property without due process of law.

Incorporation

The Fifth Amendment’s reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states. Did the Fourteenth Amend­ment change that? In the middle of the Twentieth Century, about a century after its adoption, a series of Supreme Court decisions found that the Due Process Clause “incorporated” most of the important elements of the Bill of Rights and made them applicable to the states. These decisions almost obliterated any difference between the Bill of Rights and the Fourteenth Amendment. If a Bill of Rights guarantee is “incorporated” in the “due process” requirement of the Fourteenth Amendment, state and federal obligations are exactly the same. The right to a jury trial, to take just one example, means the same in state and federal courts; there are no differences about the number of jurors required, whether they have to be unanimous in their verdicts, and so forth.

Read more of this article on due process here.

Due Process

 

 

 

twitter Facebooktwittergoogle_pluslinkedinmail

 

 ^