Arrests in Twitter Hack

Florida law enforcement has arrested a seventeen-year-old in Florida who they say is the “linchpin” of a hack that resulted in multiple hacked Twitter accounts in July. President Obama, Elon Musk, who himself has been subject to federal investigations for SEC violations, and Joe Biden are among those whose accounts were briefly taken over.

The hackers posted instructions for people to donate Bitcoin, but virtually no one did so and very little money – a paltry $180,000 – was actually stolen. Nonetheless, Twitter and various “blue check” celebrities on it were embarrassed, and so, rather than arrest all the people who have been insider-trading on Donald Trump’s corrupt efforts to fund a cure to the Coronavirus, the FBI felt it was very important to pursue some young computer nerds.

Clark has been charged by Florida prosecutors. Apparently federal charges have been filed against a British teenager and 22-year-old from Orlando.

In a sane world, the FBI would focus scarce resources on pursuing the actual criminals who orchestrated and profited off the destruction of the American economy in 2008, or are doing so again. But in this world, FBI Special Agent John Bennett says things like:

While investigations into cyber breaches can sometimes take years, our investigators were able to bring these hackers into custody in a matter of weeks. Cyber criminals will not find sanctuary behind their keyboards.

Antifa as a Group Sets Up RICO prosecution

Today in his testimony before Congress, Attorney General Bill Barr confirmed through his non-denial denial what we all know: That the Trump administration plans to use the 1970s-era Racketeer Influenced Corrupt Organizations (RICO) Act to prosecute Antifa.

The Trump Administration has been claiming for years now that Antifa, the loose, largely unconnected-but-similarly-minded people who appear on the streets as part of large protest actions is actually a formal or informal group.

Partly Trump and his Department of Homeland Security have spread the myth of Antifa-as-an-Organization to rally the right-wing base in preparation for the 2018 and now 2020 elections.

But the more sinister aim – whether Trump himself knows this – is to create the legal groundwork to use various criminal and anti-terrorism laws to prosecute people, even those who do even regard themselves as Antifa, for federal crimes. Hence the email released earlier this week in which DHS officials rename alleged “violent” actors as “Violent Antifa Anarchists Inspired (VAAI)” in official reports.

RICO – the 1970s-era act initially drafted to pursue the Italian mob – is the vehicle to do that.

Having just defended at trial in Charlotte a client in October in the largest RICO prosecution in U.S. history, I am intimately familiar with the intricacies of this law and how it makes defense at trial very difficult.

Even though the jury found my client not guilty of agreeing to any murders on behalf of the gang, the only trial victory of any one of the 82 original defendants, the trial itself involved the Government backing up a dump truck of evidence about the Nine-Trey Bloods gang that made my client look awful, even though he was not personally involved in nearly all of it.

That’s what the Government can do in a RICO case. Furthermore, the RICO conspiracy statute doesn’t require that the Government prove that the defendant was a member of Antifa. The Government need only prove that the person “conspired” or agreed with the criminal intent of the group while doing something, however small, in furtherance of that group. Recruiting people into Antifa, even if that were possible, could be construed as committing RICO conspiracy, even if the person did not regard himself or herself as a member of Antifa.

Furthermore, the RICO crime and caselaw convert all statements made as part of the conspiracy into a non-hearsay. So these statements come in even if those statements would otherwise be regarded as hearsay, or subject to the Confrontation Clause. A literal dump truck of evidence can be backed up to a federal courthouse to make a defense of these cases very difficult.

Priorities, People

I get the anger over broken windows in downtown Raleigh. I understand that people are upset over property damage. I do not advocate property damage.

But in the list of things to be concerned about, it strikes me that people miss the point if they fixate on broken windows and vandalism, but ignore the larger issues:

  1. Police Brutality has left Black men and women beaten and killed across this country, and in Raleigh.
  2. An economic system that privileges property over people (whatever their color): There is something wrong about a Government that spends billions outfitting civilian police departments in riot gear and military-style armaments, but says it can’t afford to ensure that people have health care, a decent standard of living, and a future for themselves and their kids.
  3. A criminal justice system that, particularly when it comes to drug crimes and fundamentally non-violent crimes, sentences people to cages for years or decades, sometimes in private prisons.

These are the fundamental problems that give rise to what a good friend of mine – and downtown Raleigh shop owner whose store was vandalized – calls the “hopelessness” that results in property destruction. He told me as he cleaned up the glass this week in downtown Raleigh to try to get his store back open – after it’s been closed for two months – that he isn’t angry, but rather sad.

Sad that a system like ours has turned out to be such an utter failure at providing a good life for so many people.[[

[UPDATE: Here I am interviewed on WRAL.]

Double Standards

No adult believes the world is fair. African Americans have been on the blunt end of the American stick for 300 years. Why should it be any different today?

But there’s something amazing the way police have handled the response to yet another police orchestrated murder – what else do you call kneeing for 7 minutes on someone’s neck while he says nearly a dozen times that he can’t breathe. Police have an obligation to de-escalate, to preserve human life, and to mitigate damage to property.

But not modern police forces, which have been trained and equipped as if they were occupying forces. Rather than come out dressed in civilian clothes, they appeared on Raleigh’s streets – many of them – in gas masks, “tactical” gear, and with batons. The same was true in most American cities last night that saw protests.

But that wasn’t true a month ago, when largely white crowds protested the COVID closure like this:

Outside Provocation by Forces of “Order” is Cause of Violence

Minneapolis officials have confirmed what most people know: that the violence that was wrought last night in the streets was not by protesters, but rather by outside agitators – agents provocateur – who descended upon the city to provoke and justify a militarized and violent response from police.

[CORRECTION: Turns out that the civil authorities were either lying or incorrect; the violence did come from people from MN. It should be noted that the police throughout this country have engaged in some unspeakable acts of violence during these protests, and the line between peaceful protest and riot often depends on what the police do when they’re suited up like storm troopers on American streets.]

Evidence has also emerged on various channels, including twitter, that at least some of the instigators are apparently police officers or their allies themselves who dress up as black bloc protesters in order to incite violence.

Raleigh has seen its own attempts to incite violence. For weeks now, out-of-city fascists have appeared on city streets with military-grade weaponry and have gone unchallenged by police. These people seek to create the grounds for a violent crackdown.

Here’s Cornel West speaking eloquently about this problem:

Cops and General Deterrence

There’s a reason why police officers continue to kill mostly black people around the country. It’s because they know that even in the rare cases where they are charged, they probably won’t be convicted. And even if they walk into the wrong home and gun down a guy who was just enjoying some ice cream, the judge will probably hug them after they get a sentence that accounts for a fraction of the time a normal person would serve.

General deterrence is important. Every time I’m in federal court, I’m lectured by judges about it: that one of the purposes of the criminal law is to create respect for the law, and ensure that people in general know that, if they commit crimes and get caught, they will eventually serve a sentence of sometime.

This concept of general deterrence is somewhat overstated: most people are aware they might be caught and that they might be punished, but they often don’t value the the risk adequately. So I’m not here to say that general deterrence works as a general principle, and certainly when it comes to the death penalty, general deterrence doesn’t really work at all.

But general deterrence would work very well in the sort of context where it matters most. If police officers knew that, were they to shoot and kill someone, they would be subject to a thorough and impartial investigation, and would be charged with the highest possible crime, police officers would stop killing citizens.

But that doesn’t happen. It doesn’t happen because District Attorneys – the elected officials who prosecute crimes on the state level – often depend on cops for votes come election time, and depend on cops to do their job prosecuting other citizens.

Can you imagine what a signal it would’ve sent to cops around the country if Eric Garner’s killers had been sent to prison for 30 years? Can you imagine what a signal it would’ve sent to cops around the country if Philandro Castille’s killer had been convicted over first degree murder? Or if Derek Chauvin had been prosecuted the first time he killed a citizen?

George Floyd would probably still be alive.

Joe Biden’s Criminal Justice Record is Appalling

Normally I don’t talk about partisan politics on this blog, limiting my comments to policy and criminal justice issues. But I was recently elected as a Bernie Sanders delegate to the Democratic National Convention, which is scheduled to be hosted in Milwaukee this year. But the Party is considering hosting the convention by virtual means – Zoom, I suppose. The decision about how to host the convention is still being considered.

As a practical matter, given that Bernie Sanders suspended his campaign, and Joe Biden will have the substantial majority of ballots, it is unlikely that the individual delegates will be required to actually voice a preference. And, as a matter of party rules, delegates sent on behalf of a particular candidate – in my case Senator Sanders – are required to vote for that candidate on the first ballot. Since there will not be a second ballot – in all likelihood, but this being 2020, who knows – I suspect that vote will be a mere formality, if it even occurs.

Since Senator Sanders announced the suspension of his campaign, I have not followed the day-to-day politics. But Joe Biden seems to want to create all kinds of issues that make it more difficult for him to win. I suppose there’s a reason he withdrew twice – in 1988 and 2008 – in previous presidential campaigns. In 1988, he was caught plagiarizing speeches, and lying about his resume. His lies about his resume have continued, unabated for decades. Recently he falsely claimed he was arrested in South Africa during the apartheid era, that he marched in the 1960s for civil rights, that he co-sponsored the Endangered Species Act, and about his vote for war in Iraq in 2003. The man is an inveterate fibber.

But most striking is Joe Biden’s problematic record on race. Biden was selected in 2008 as Barack Obama’s vice president because it was thought that having Biden on the ticket would convince white voters in Pennsylvania, and the midwest, for instance, that President Obama would not be dangerous.

But in the 1970s, Biden was not just a backer, but a sponsor of bills to permit and encourage busing favored by whites to deny African-Americans equal access to good schools. Biden was cozy with some of the Democratic Party’s worst segregationists – Jim Eastland and Herman Talmadge, both senators.

But Biden’s record on criminal justice is just absolutely appalling. He was either co-sponsor or a strong supporter of a string of bills that went through Congress in the 1980s and 1990s that produce federal sentencing mandatory minimums that led to mass incarceration and put a generation of black males in prison.

If Biden had changed his tune, he’d be more acceptable today. But here he is in the last week saying more nonsense:

COVID Sniffing Dogs: Quarantine Theater

“Security theater” is a phrase used to describe practices that give the illusion of improving physical security, but are in fact basically worthless. One example is the use of dogs – K-9 – to sniff for drugs, a tactic often used by police in drug trafficking cases to try to uncover the presence of drugs.

Radley Balko, a Washington Post columnist, has written extensively on the use and misuse of drug-sniffing dogs, noting that:

[N]arcotics-detecting dogs and their handlers aren’t very good at discerning the presence of illegal drugs. Multiple analyses of drug-dog alerts have consistently shown alarmingly high error rates — with some close to and exceeding 50 percent. In effect, some of these K-9 units are worse than a coin flip.

While dogs are capable of sniffing out drugs (or diseases), the handler – the human being working with the dog – has a great deal of influence over the dog. In the drug-sniffing scenario, handlers can sometimes intentionally or unintentionally prompt the dog to respond or “trigger,” and therefore give probable cause to conduct a search, even though the dog wouldn’t have otherwise alerted to drugs.

In addition, because dogs can’t speak and explain why they alerted, the human being handler – the law enforcement officer – is left to explain that the dog did alert, and that the dog alerted because the dog detected drugs. Where drugs are found, the discovery of drugs in some sense “proves” the handler’s claim. Where drugs are not found, the person is sent on their way with an apology for the inconvenience, and no subsequent courtroom testimony uncovers the error because the person is never charged with a drug trafficking crime.

Now CNN reports that dogs are being trained to help identify people with COVID-19. While a similar bias may not distort outcomes, it’s not entirely clear that COVID-sniffing dogs would be much more than security theater.

Can a County Bar Entry?

With the COVID-19 / Coronavirus coming to North Carolina, the state and local governments are preparing to respond with measures designed to slow the spread of the disease and “flatten the curve.”

These measures include travel restrictions, stay-at-home advisories, and even restrictions on who can and cannot enter a particular county or city. Dare County has imposed a permit process that allows only residents of Dare and surrounding counties entry into the county for the time being.

NCGS 166A-19.31 provides the framework:

  • Imposing a curfew.
  • Directing and compelling the voluntary or mandatory evacuation of all or part of the population from any stricken or threatened area within the governing body’s jurisdiction.
  • Prescribing routes, modes of transportation, and destinations in connection with evacuation.
  • Controlling ingress and egress of an emergency area, and the movement of persons within that area.
  • Providing for the closure, within the emergency area, of streets, roads, highways, bridges, public vehicular areas, or other areas
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