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December 2021
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Court Tells Cops Who Got A Man Wrongly Imprisoned For 25 Years That Of Course Framing People For Crimes Is A Rights Violation

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There's a constitutional right not to be framed by cops for a crime you didn't commit. This shouldn't even need to be argued in court once, much less twice. But "framed by cops" is exactly what happened to James Dennis, who spent 25 years in prison after being falsely accused of murdering a high school student back in 1991.After having his wrongful conviction vacated in 2013 (and this decision affirmed by the Third Circuit Appeals Court in 2016), Dennis sued the cops that took 25 years of his life away by hiding exculpatory evidence and creating a narrative that put him behind bars.Back to the Third Circuit goes Dennis again, with the Appeals Court handling an attempt by two detectives to escape Dennis' lawsuit [PDF]. The district court stripped immunity from the detectives who built the case against Dennis. The detectives appealed but they're not going to be able to walk away from this one.The allegations are severe. According to Dennis, detectives Frank Jastrzembski and Manuel Santiago hid evidence that would have cleared Dennis and worked together to railroad him into a murder conviction. Buckle up, there's a lot to take in here.

First, Dennis alleges that the detectives concealed information about other individuals, who had confessed their involvement with the murder or who knew who was involved, and that the detectives coerced/concealed certain other witnesses. Specifically, Dennis alleges that the detectives never followed up on inconsistencies in statements made by Zahra Howard, who was with Williams on the day of her murder. Ms. Howard originally told the detectives that she never saw the assailants but later told her aunt and uncle that she recognized the assailants from Olney High School, a school that Dennis had never attended. Howard’s aunt and uncle informed the detectives about her statement; it was also corroborated by the victim’s aunt. This information, which was recorded in the detectives’ activity logs, was concealed from Dennis for ten years.In addition, Dennis alleges that several days after the murder, Montgomery County law enforcement advised the Philadelphia Police Department that an inmate in their County Prison spoke with a man who confessed his involvement in Williams’s murder. A signed statement from the inmate included details about all three men involved in the murder and identified the source of the information. However, defense trial counsel never received any materials relating to the investigation of these three individuals; the information was only revealed 10 years later during Post Conviction Relief Act (PCRA) discovery.Second, Dennis alleges that the detectives fabricated evidence to secure his conviction. Specifically, Dennis alleges that the detectives falsely claimed to have found certain clothing items that matched those of the shooter, as described by eyewitnesses to the murder. He further alleges that Detective Jastrzembski falsely testified that the clothing was found at Dennis’s residence but later “disappeared” from police headquarters prior to trial...Third, Dennis alleges that the detectives concealed evidence that would have supported his alibi. Specifically, Dennis’s alibi that he was elsewhere at the time of the murder would have been corroborated by a witness’s time-stamped welfare receipt. When questioned by the detectives, the witness based her time estimates on the receipt’s military-style timestamp of 13:03 (1:03 PM), which she mistook to mean 3:03 PM. The detectives did not correct the witness when she misread the receipt’s military-style timestamp while they were interviewing her; instead, they took the only copy of the receipt and never shared it with Dennis or the prosecutors…Dennis also alleges that only four of the nine eyewitnesses identified by Philadelphia Police had selected him from the lineup; three of those four testified for the Commonwealth at Dennis’s trial. After learning this information, Dennis’s counsel requested a new lineup with all nine eyewitnesses. The new lineup never occurred.
The detectives argued that even if they were in the wrong, they were not unreasonably wrong and could not have possibly known from court precedent that hiding information from accused criminals and framing them for a murder was a violation of his rights.Wrong, says the Third Circuit. It's not even a close call. There's plenty of precedent and it dates back decades -- long before the detectives' actions in 1992.
[C]iting McDonough v. Smith, the detectives contend that a fabrication of evidence claim has been recognized under the Fourteenth Amendment only where the government officer involved in fabricating evidence was a prosecuting attorney. Not so. In Halsey v. Pfeiffer, we concluded that it was axiomatic that “those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” Halsey involved an evidence fabrication claim under the Fourteenth Amendment brought against police officers. We emphasized that the Supreme Court decades ago had established that the Constitution forbids those tasked with upholding the law from knowingly using falsified evidence to secure a criminal conviction.[...][A] case that is directly on point is not required so long as the precedent placed the constitutional question beyond debate. Halsey did so, recognizing prior precedent that held the fabrication of evidence by law enforcement officers violates the Fourteenth Amendment and that such a right had been established since at least 1985.
The next argument by the detectives was also off by several decades.
[T]urning to Dennis’s deliberate deception claim, the detectives contend that this claim is based on the right not to be framed by law enforcement agents, which is too broadly worded and was not established until 1995, when the Supreme Court decided Kyles v. Whitley.The right not to be convicted on perjured testimony used by prosecutors at trial has been clearly established by the Supreme Court since at least 1935 in Mooney v. Holohan. Seven years later, in Pyle v. Kansas, 317 U.S. 213, 216 (1942), the Court extended this right by recognizing as a due process violation the conviction of a defendant through perjured testimony and the deliberate suppression of evidence favorable to the accused.
Even if this precedent did not exist, the court says the due process violations are so blindingly obvious that there's no plausible excuse for the detectives' actions.
We conclude that the constitutional rule that framing criminal defendants through use of fabricated evidence, including false or perjured testimony, violates their constitutional rights applies with such obvious clarity that it is unreasonable for us to conclude anything other than that the detectives were on sufficient notice that their fabrication of evidence violated clearly established law.
That's what qualified immunity has done to the judicial system. The Supreme Court's alteration of the contours of the doctrine it created has made it more difficult for lower courts to address the rights violations, shifting focus to judicial precedent instead. Fortunately, there's plenty of it here. But more than that, it's good to see a court tell officers attempting to raise their qualified immunity shields that the stuff they did was so obviously wrong they'd still be denied immunity even if there wasn't any precedent to rely on. That needs to happen more often.

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posted at: 12:00am on 14-Dec-2021
path: /Policy | permalink | edit (requires password)

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EUIPO Study Indicates It's Likely That Piracy Traffic Has Decreased Significantly, Even During The Pandemic

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Back in April of 2020, which feels roughly like a damned lifetime ago, we discussed a much-publicized report that indicated explosive growth in traffic to pirate torrent and streaming sites for movies, music, television, and video games. Much hand-wringing ensued, which was largely silly. All kinds of media consumption traffic rose during the initial lockdown months of the COVID-19 pandemic and it only made sense that piracy traffic would follow suit, particularly when you consider the broader economic impact of the pandemic. This wasn't some new paradigm shift in the piracy landscape; it was literally one of the most predictable things that could have happened.But now, almost two years later, where are we at? Well, per a recent study by the EU Intellectual Property Office, piracy traffic hasn't just fallen, it's fallen sharply.

New research published by the European Union Intellectual Property Office shows that, despite the pandemic, piracy site visits continue to fall. This trend is visible for movies, TV shows, and music, with the latter showing the sharpest drop. Income level and inequality appear to be major piracy drivers, but there's a major caveat as well.
We'll get into that caveat more a bit later, but it's worth pointing out that all the data for this report comes from MUSO. MUSO is an anti-piracy outfit, albeit one that isn't afraid to embrace some new and interesting ideas. Still, as an organization that is certainly not incentivized to play down piracy numbers. And, yet, the numbers do indicate a significant trend downward.
The chart below shows that the piracy numbers roughly halved between 2017 and 2020. This trend is visible for all content categories and most pronounced for music, which dropped by more than 80% during this time period.These data also reveal that TV piracy is by far the most common. This could in part be due to the recurring nature of TV shows. At the end of 2020, roughly 70% of all pirate site visits were TV-related. The film and music categories are good for 20% and 10% respectively.
The COVID boom was either never a thing, or it was so short-lived that it basically isn't worth talking about. This tracks with other pandemic related effects on the nation, such as the stock market crash that then came roaring back almost immediately. Humans, as it turns out, are perfectly capable of wild swings of behavior and outlook when pressured by a historic event.But the overall downward trend over recent years is very easy to explain: streaming. As the public gets more and more comfortable with utilizing streaming services in order to get the content they want, services that are often well-priced and easy to use, the desire for piracy goes down. For $50 a month across several streaming services I can get nearly all the content I want? Fine, then no need to engage in risky or even non-risky pirate behavior.Now, about that caveat...
The study really only covers a part of the broader piracy landscape. The focus on web traffic means that apps, streaming devices, and IPTV services are not included either. Perhaps that’s where some mobile users are going?This caveat may also shed a different light on the piracy drop, as these untracked piracy channels have grown explosively in recent years. According to some, these streaming tools are the largest piracy threat at the moment.
And perhaps there is some truth to that, though it feels quite unlikely that IPTV services explain the global drop of piracy levels across the board. TV and movies are one thing, but IPTV doesn't factor into music or video game piracy in any serious way. But Spotify and subscription based gaming services certainly do.So if the trend is that piracy is on the significant downswing, you would think we'd see the IP industries ratchet down the rhetoric on the evils of piracy. Somehow, I cannot quite convince myself to hold my breath on that one.

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posted at: 12:00am on 14-Dec-2021
path: /Policy | permalink | edit (requires password)

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