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Appeals Court Tells DOJ To Drop The Glomar And Hand Over Records About Prosecutorial Misconduct To Requester

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A man convicted for fraud makes his second appearance in the Fourth Circuit Appeals Court. The first was an attempt to have his sentence vacated via complaints of prosecutorial misconduct. Gregory Bartko not only discovered a government witness had perjured himself, but during his trial, the prosecution routinely delayed its production of evidence -- something the district court noticed. It didn't result in a new trial, but it did bring judicial hellfire down on the heads of the prosecution team.The Fourth Circuit's 2013 decision doesn't pull punches.

A cursory review of this Court’s opinions reveals recent consideration of at least three cases involving discovery abuse by government counsel in this district. [...] And this case, which confronts us with three alleged constitutional violations—two instances of withholding discoverable evidence and one choice to leave uncorrected a witness’s false testimony—only adds to the list.[...]Mistakes happen. Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional…[Quoting an earlier case involving the same prosecutor's office] “This is a repeat offense by the government. The order is entered by the court requiring disclosure by a certain date, and the government simply ignores it. And their explanation for ignoring it is, ‘I missed it. So what. There’s no prejudice.’ And it just happens again and again.Moreover, the government’s responses to queries regarding its practices are less than satisfactory. For example, in this case, when asked at oral argument about its failure to correct Scott Hollenbeck’s testimonial misstatement regarding promises he had received, the government suggested that at the time Hollenbeck made the misstatement, trial counsel had no recollection of the promises made to him. But as Judge Keenan aptly noted, such an idea “just strains credulity.” [...] And here, when we gave counsel an opportunity to correct her farfetched assertion, she refused. Faced with such behavior, we must conclude that this office is uninterested in placating concerns about its practices.
In this case, the multiple prosecutorial "errors" failed to undermine the case against Bartko, resulting in the government getting away with multiple due process violations. The court notes this is the government acting in bad faith and rolling the dice that the presented case will survive its misconduct.
Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony.
The court noted the violations may have been "harmless" in the context of this specific case, but they are far from harmless in terms of due process. The appeals court asked the DOJ's Office of Professional Responsibility to investigate the US Attorney's office in North Carolina -- especially prosecutor Clay Wheeler's [ed: oh, the irony available at that link] -- repeated flouting of discovery rules and orders.Five years later, Bartko is receiving his second opinion from the Fourth Circuit Court of Appeals -- this time pertaining to the DOJ's repeated refusal to hand over documents, specifically those related to the OPR's investigation of the prosecutor's office involved in his criminal case. The DOJ handed over a few documents listing Bartko as the "complainant," but for everything related to the court-requested investigation it gave him a Glomar.The court is about as impressed with the OPR's arguments as it was with prosecutor Clay Wheeler and the US Attorney's Office during its last discussion with Bartko. From the opinion [PDF]:
Because Exemption 7(C) shields from disclosure “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), to invoke Glomar, OPR had to make a threshold showing that the FOIA request seeks records “compiled for law enforcement purposes.” OPR also bore the burden of making an across-the-board showing that the privacy interest the government asserts categorically outweighs any public interest.[...]In defense of its sweeping Glomar response, OPR offered only a bare-bones declaration that “[t]he records requested by [Bartko] from OPR consist of complaints or allegations of misconduct which, if they exist, would have been compiled as part of OPR’s investigations of Department of Justice attorneys who are alleged to have committed specific acts of professional misconduct which, if proved, could result in civil or criminal penalties.” J.A. 207. That is not even in the ballpark.
Not only that, but the OPR's own statements on its investigatory process made it clear most cases are closed quickly due to lack of evidence and those that survive are shopped out to other offices to handle reprimands, etc. As the court notes, this disconnects OPR from its firmly-held illusion that it possesses "law enforcement" info.
[The] description of OPR’s review process reveals just how attenuated its “law enforcement” function is. For starters, most matters do not even result in an investigation, making a finding of law-enforcement-triggering misconduct implausible in the vast majority of cases. That summary treatment seems to have been what was accorded to the Fourth Circuit’s referral in Wheeler’s case because there is no record evidence or attestations from OPR indicating that they interviewed witnesses or requested additional documents for review.
The OPR also claimed any release of investigation records would violate prosecutor Clay Wheeler's privacy. The court says there's a slim possibility that might be true, but the DOJ has provided no reason for it to believe these assertions.
Much like its vaporous justification for claiming that the requested documents constituted law-enforcement records, OPR just sweepingly asserted that the disclosure of any record regarding any allegation of misconduct would be an unwarranted invasion of Wheeler’s privacy. OPR ignores altogether its obligation to specifically identify the privacy interest at stake, which can vary based on many factors, including frequency, nature, and severity of the allegations.
Not only that, but there's more than Wheeler's privacy interest at stake. The public also has a right to know about government misconduct -- an interest the DOJ apparently believes doesn't exist.
OPR also made no apparent effort to weigh any privacy interest against the countervailing public interest in the disclosure of information concerning allegations of government attorneys’ misconduct. OPR cannot issue a blanket proclamation that a loss of privacy would be “unwarranted” without considering whether there is a public interest that might well warrant it.
This puts Bartko in line for some disclosure, roughly five years after he asked for it. Unfortunately, it appears from what little he has received, the prosecutor who engaged in misconduct was allowed to resign and avoid an OPR investigation. But what he will finally obtain should show how often that office engaged in behavior bad enough to warrant official court notice. And that's something of interest to everyone, not just the person whose case suffered directly from this abuse of due process.

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ICANN Loses Yet Again In Its Quixotic Quest To Obtain A Special Exemption From The EU's GDPR

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Back in May, we wrote about the bizarre attempt by the Internet Corporation for Assigned Names and Numbers (ICANN) to exempt itself from the EU's new privacy legislation, the GDPR. ICANN sought an injunction to force EPAG, a Tucows-owned registrar based in Bonn, Germany, to collect administrative and technical contacts as part of the domain name registration process. EPAG had refused, because it felt doing so would fall foul of the GDPR. A German court turned down ICANN's request, but without addressing the question whether gathering that information would breach the GDPR.As the organization's timeline of the case indicates, ICANN then appealed to the Higher Regional Court of Cologne, Germany, against the ruling. Meanwhile, the lower court that issued the original judgment decided to re-visit the case, which it has the option to do upon receipt of an appeal. However, it did not change its view, and referred the matter to the upper Court. The Appellate Court of Cologne has issued its judgment (pdf), with a comprehensive smackdown of ICANN, yet again (via The Register):

Regardless of the fact that already in view of the convincing remarks of the Regional Court in its orders of 29 May 2018 and 16 July 2018 the existence of a claim for a preliminary injunction (Verfügungsanspruch) is doubtful, at least with regard to the main application, the granting the sought interim injunction fails in any case because the Applicant has not sufficiently explained and made credible a reason for a preliminary injunction (Verfügungsgrund).
The Appellate Court pointed out that ICANN could hardly claim it would suffer "irreparable harm" if it were not granted an injunction forcing EPAG to gather the additional data. If necessary, ICANN could collect that information at a later date, without any serious consequences. ICANN's case was further undermined by the fact that gathering administrative and technical contacts in the past had always been on a voluntary basis, so not doing so could hardly cause great damage.Once more, then, the question of whether collecting this extra personal information was forbidden under the GDPR was not addressed, since ICANN's argument was found wanting irrespective of that privacy issue. And because no interpretation of the GDPR was required for the case, the Appellate Court also ruled there were no grounds for referring the question to the EU's highest court, the Court of Justice of the European Union.ICANN says that it is "considering its next steps", but it's hard to see what those might be, given the unanimous verdict of the courts. Maybe it's time for ICANN to comply with the EU law like everybody else, and for it to stop wasting money in its forlorn attempts to get EU courts to grant it a special exemption from the GDPR's rules.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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