Category: Testimony

Fingerprint Authentication And The Fifth Amendment

-Submitted by David Drumm (Nal), Guest Blogger

iphone_fingerprintThe iPhone 5s allows the user to unlock their device using biometric data, namely their fingerprint. It is more convenient that typing in a simple four digit passcode. Fingerprint readers vary in vulnerability. Some only check ridges and can be fooled by a good photocopy. The iPhone reader uses radio frequency scanning to detect sub-epidermal layers of your skin requiring the owner to be alive and the finger attached. The new fingerprint reader may protect your iPhone from thieves, but what about protecting your personal data from government snooping?

Continue reading “Fingerprint Authentication And The Fifth Amendment”

Are You Ready for Some Football?

Submitted By: Mike Spindell, Guest Blogger

Junior_Seau_2Football fans around the nation are feeling the excitement grow as we again approach the NFL Football season. They are avidly watching their favorite team’s pre-season games, checking out the new rookies and preparing for their various fantasy football leagues by analyzing league rosters. NFL Football has become the preferred sport of the country and generates many billions of dollars. It is our budding empire’s version of the gladiator battles in the various Roman Coliseums that were spread across the Empire as a palliative to an enslaved populace. While it is true that the Roman Gladiator battles usually ended only by the death and dismemberment of the “losers”, the news of the physical and mental costs to pro football players has begun to receive more publicity of late. This is due to the realization of the lasting damage done by football head trauma referred to broadly as concussions. As someone who has watched the National Football League for perhaps 60 years the idea of a concussion is one that is intertwined with the sport itself. For much of that time while it was discussed openly by the game announcers, analysts and sports journalists, in truth they all made light of them and players themselves would cheerfully discuss “getting clocked” or “having their bell rung.” The players thus injured who would insist on returning to the game were seen as “real men” and “heroes” for their fortitude. Then too coaches concerned with winning would tell them to “man up” and their teammates opprobrium for them “relaxing” on the sidelines would add peer pressure to continue to play even through their disorientation and head pain.

As the sport grew and outpaced baseball as the nation’s “national pastime,” like the gladiators of old players became heroes with nationwide celebrity. Many noted how some retired players from era’s past seemed to die relatively early in life, especially considering that to play football one must be an excellent physical specimen. As fans we were also aware how many of our heroes’ sustained injuries that in their retirement rendered them somewhat physically disabled for life, but merely made passing note of this reality, rather than feel discomfort at what this violent sport was doing to those who played it for our entertainment. The truth is that football fans and football professionals celebrated the violence of the game, even while shedding “crocodile tears” for player carted off the field with terrible injuries. Coaches and players talked about the exultation one felt when they made a jarring hit upon another player. It was common in interviews for players to talk of the joy they felt “making contact”, a minor euphemism for hitting or being hit with jarring intensity. We are to my way of thinking no more evolved than those Roman Citizens who would excitedly vote “thumbs down” on whether a losing gladiator should receive the killing blow. Our social norms require that we “feel sad” about a terrible injury, but if it occurs to an opposing player and affects our teams prospects, only the most unaware would deny that in the back of their mind they are calculating what this injury will mean. Our consciences are salved by the fact that many football players get paid enormous sums of money for their skills and so from a legal perspective one might say there is an assumption of risk. I want to examine this “assumption of risk” and discuss the implications that it has for NFL, the players and for us the fans. Continue reading “Are You Ready for Some Football?”

From DSM-I to DSM-5 in the Legal System: Mental Illness Issues in the Courtroom

Submitted by Charlton Stanley (Otteray Scribe), guest blogger

Dr. Isaac Ray
Dr. Isaac Ray

The relationship between mental health and the legal system is a turbulent one at best. One major problem is they speak two different languages. For example, insanity is a legal term found nowhere in any psychiatric or psychological diagnostic manual.

There are several key words used commonly by both professions, but which have quite different meanings. The words “validity” and “reliability” are part of the vocabulary of science. To a scientist, the word validity means that a test measures what it claims to measure. When a test is intended to measure depression or anxiety, the user can assume it measures depression and anxiety.

Reliability refers to the repeatability of a test or measurement. If we give the same test to the same subject several times, all the scores will fall within the standard error of measurement 95% of the time.

When an attorney uses the word validity, it means, Binding; possessing legal force or strength; legally sufficient.

The legal interpretation of the word reliability suggests the subject matter is trustworthy, and that one can rely on it. However, when a scientist says something is reliable, it means whatever is being tested will get the same results with every retest, within the Standard Error of Measurement.

An examination of the literature of both professions reminds us of the quip attributed to George Bernard Shaw, “[We] are two peoples divided by a common language.”

When I was in graduate school, a well-known attorney gave an invited lecture to the student body. The speaker made several sweeping generalizations about the mentally ill; all of them displaying a stunning ignorance of facts. Then he turned his venom on those in the mental health professions, referring to mental health professionals scornfully as, “Soul doctors.” I would like to say people like him are rare, but they are not. I have known judges who, quite literally, did not believe in mental illness. We had one of those in our area who, mercifully, retired a few years ago.  People like that remind me of those misogynistic knuckle-draggers who don’t believe there is such a thing as rape.

Now, back to the stormy relationship between the legal system and mental illness.

Continue reading “From DSM-I to DSM-5 in the Legal System: Mental Illness Issues in the Courtroom”

Why The FBI Doesn’t Record Interrogations

-Submitted by David Drumm (Nal), Guest Blogger

136px-US-FBI-ShadedSealAt a time when recording a conversation is as easy as whipping out a cellphone or iPod, the FBI policy on electronic recording of witness interviews is: “agents may not electronically record confessions or interviews, openly or surreptitiously, unless authorized by the SAC or his or her designee.” Instead FBI agents take notes and later type up a summary report called a form 302. The interview takes place with two FBI agents and the single interviewee. The FBI has eschewed the objective for the subjective.

Continue reading “Why The FBI Doesn’t Record Interrogations”

None Dare Call it Treason

Submitted by: Mike Spindell, guest blogger

220px-Richard_NixonIn 1964, during Barry Goldwater’s race for the White House, a book became a runaway best seller and it was titled “None Dare Call It Treason”. Its’ premise, typical of the thinking of many of that time, was that the United States was being sold out to Communism by its “liberal elites” who were pro-communist and thus wanted the USSR to win the “Cold War”. As the title clearly illustrates the book’s author, John A. Stormer, believed that the “elite” were traitors, liberal of course, who were so powerful that their “treasonous actions” couldn’t be challenged. I remember the popularity of the book at that time and how many who supported Barry Goldwater were believers in the books veracity. Goldwater himself seemed to be echoing Stormer’s theme of rooting out pro Communists in his Convention speech which produced the memorable phrase: “I would remind you that extremism in the defense of liberty is no vice. And let me remind you also that moderation in the pursuit of justice is no virtue.” It is thus a meme that in many different ways has been played and re-played through our Country’s history by those of a more Conservative persuasion. That meme is that the true American patriots are those who are of Right Wing political persuasion. Continue reading “None Dare Call it Treason”

America’s Broken Criminal Justice System

Submitted by: Mike Spindell, guest blogger

200px-JMR-Memphis1While I’m not a lawyer, I do write for this legal blog by the invitation of its creator Jonathan Turley. I first arrived on the scene here many years ago because since the age of ten I have had been interested in the nature of the broad spectrum of civil rights issues faced by this country. My interest became an obsession at the age of ten. My parents, who were quite liberal, allowed me to stay up way past my bedtime to watch Ed Murrow bravely attack Sen. Joseph McCarthy for his Communist Witch Hunt, by documenting the anti-constitutional excesses he used to destroy people’s lives and careers. Months later they kept me home from school to watch the Army/McCarthy Hearings which directly led to McCarthy’s downfall. On our twelve inch, black and white TV I watched this famous scene:

“On June 9, 1954, the 30th day of the Army–McCarthy hearings, McCarthy accused Fred Fisher, one of the junior attorneys at Welch’s law firm, of associating while in law school with the National Lawyers Guild (NLG), a group which J. Edgar Hoover sought to have the U.S. Attorney General designate as a Communist front organization. Welch had privately discussed the matter with Fisher and the two agreed Fisher should withdraw from the hearings. Welch dismissed Fisher’s association with the NLG as a youthful indiscretion and attacked McCarthy for naming the young man before a nationwide television audience without prior warning or previous agreement to do so:

“Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man but your forgiveness will have to come from someone other than me.”

When McCarthy tried to renew his attack, Welch interrupted him:

“Senator, may we not drop this? We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”

McCarthy tried to ask Welch another question about Fisher, and Welch cut him off:

“Mr. McCarthy, I will not discuss this further with you. You have sat within six feet of me and could have asked me about Fred Fisher. You have seen fit to bring it out. And if there is a God in Heaven it will do neither you nor your cause any good. I will not discuss it further.”

The gallery erupted in applause.”

The drama of this distinguished lawyer chastising one of the most powerful men in the United States and silencing his cruelty was one of the defining moments of my life. It spurred a lifelong interest in the Constitution, the Law and the rights of the American People. Today, among other ills, I believe that our American Criminal Justice System is broken. Let me explain why I believe that. Continue reading “America’s Broken Criminal Justice System”


One hour ago, our blog passed the 14,000,000 viewer. The fact that we only recently passed the 13,000,000 viewer mark reflects the impressive growth of this blog. Congratulations everyone. Now if we could only get .000001 of those viewers to vote for us on the ABA blog competition we could crush the competition! If you (are any distant relative, incompetent ward, or pet) has not voted, you can vote here and cast your vote today!

Continue reading “14,000,000”


The ABA Journal has released its list of the top 100 legal blogs in the world and we are once again in this august group of blogs. Congratulations to all of our regulars contributors and weekend bloggers. We have previously taken the top spot under the opinion category in the past but the ABA has now eliminated that category. Even more ominous was the decision to put the largest blogs in direct competition under an expanded “News/Analysis” category. This includes the long dominant “Above the Law” site. We would have to punch considerably above our weight to beat “Above the Law,” which is ranking regularly in the top two most visited legal sites in the world. Frankly, it is like a dingy going up against a battleship. However, we have never flinched in the face of superior numbers. So it is time to vote! It takes a very quick registration. Just click here and cast your vote today!



Happy Thanksgiving to everyone. This is my favorite holiday with all of the essential elements of joy: food, friends, and football. Continue reading “HAPPY THANKSGIVING!”

Too Much Democracy?

Submitted by: Mike Spindell, Guest Blogger

I’m a legal resident of Florida and this week I took advantage of early voting. While I’ve been a political activist for most of my life and usually have a good idea of the issues involved in any particular election, this vote brought home to me that I wasn’t as smart and informed in this election as I supposed. This thought occurred to me the night before I voted, when I carefully looked over the sample ballot sent to me by my County Board of Elections. The sample ballot had six pages and the opportunity to vote twenty six separate times. The first seven of the twenty-six votes, were “no brainers” since it started with the Presidency and ended with County Commissioner. I was familiar with each of these elective offices and the issues entailed in each particular race, but that’s where my familiarity with the issues involved in the next nineteen votes ended. The next possible votes were on whether each of three particular State Supreme Court Judges should be allowed to continue their terms? Not knowing these Judges and/or their judicial views how was I to make such a decision? The next vote was also on whether a particular Justice of the Court of Appeals should be retained in office. The final electoral decision was a vote between one of two people for a four year term to the County Soil and Water commission. This was not a party affiliated position, so other than their names, I had no idea who to vote for, or what their particular conservation philosophy entailed.

Needless to say, I went on the web and found out what was going on in the Judges recall. This is the story and its’ Washington Post link: A Koch Brothers-backed campaign is seeking to vote out three Florida Supreme Court justices.

“A loosely organized Internet campaign against the court two years ago has been fortified by the conservative group Americans for Prosperity, founded by billionaire activists Charles and David Koch. And then came the surprise announcement that the Republican Party of Florida had decided to oppose all three justices, an unprecedented move in the nonpartisan vote.

Party leaders said that “collective evidence of judicial activism” showed the jurists to be liberals who are out of touch with the public. Opponents point to the court’s death penalty decisions and a ruling that kept an “Obamacare” referendum off the 2010 ballot. But the justices’ supporters say an effort is underway to pack the court with new appointees and deliver Republicans the only branch of state government they don’t control.”

 While it is true that I had no clue that such a Campaign was going on, in my defense I was out of State for the entire summer and not paying attention to local affairs. This guest blog, however, is not about the Koch’s judicial ploy, but about what followed it on the Florida Ballot. This was the vote on eleven Florida Constitutional Amendments and why I believe that the nationwide movement for voter ballot initiatives is an idea to support democracy, which in practice is anti-democratic in nature. Continue reading “Too Much Democracy?”

Double Jeopardy

Submitted by: Mike Spindell, Guest Blogger

One of the main problems with any legal principle is that we humans are so complex in our interactions that even the most hallowed of legal principles are bound to run into conflict with a real life situation that turns it on its end and leaves even the most principled among us at a loss. This is why the timeless practice of training lawyers to be able to argue both sides of a case arose. Even those who are most respectful of our legal system and our Constitution, recognize that with the variety of human situations, sometimes the legal process leads to results that are far short of the mark of what a person might consider to be justice. Recently, while watching a TV real life murder show called “Unusual Suspects” I came across a case, whose resolution, left me confused as to whether the result was correct in a Constitutional sense. The first ten amendments to our Constitution that are known as “The Bill of Rights” are legal principles that I hold sacrosanct. Historically, the founders put them in place to safeguard the people from the tyrannies that often flowed from autocratic systems of government. These were principle that history and experience had taught them were necessary to protect and preserve the freedom of citizens.

The Fifth Amendment became famous in the 40’s and 50’s when it was invoked at congressional hearings striving to root out “communists”. People in the glaring spotlight of Congressional Hearings, sworn under oath, would be forced to invoke the Fifth Amendment to assert their right not to incriminate themselves. What was unfortunate about these “witch-hunts” was that according to legal procedure, if the person under oath answered any kind of question it was deemed that their Fifth Amendment Rights had been forfeited, since any answer, no matter how innocuous could be considered to have opened up a line of questioning. Thus if one was asked to discuss where they worked they would have to invoke the “Fifth”, or otherwise be opened to questions on who they worked with. The result of this was that by exercising their Constitutional Rights, these witnesses were made to seem guilty of hiding something, merely by asserting their right to remain silent. People’s careers were destroyed having been guilty of nothing more than associating with people who believed in a different economic system, that wasn’t inherently illegal. As the title indicates I’m writing about another aspect of the Fifth Amendment and the result of a particular murder case that left me intellectually and emotionally conflicted. Continue reading “Double Jeopardy”

Corporate Liars and the Lies They Tell

Respectfully submitted by Lawrence Rafferty (rafflaw)- Guest Blogger

I have written in the past about corporations dodging taxes, but this latest story out of Washington takes the cake. Susan Ford, an executive with Corning, Inc. testified recently at a House Ways and Means committee meeting and made the following claim.  “American manufacturers are at a distinct disadvantage to competitors headquartered in other countries. Specifically, foreign manufacturers uniformly face a lower corporate tax rate than U.S. manufacturers, and virtually all operate under territorial systems which encourage investment both abroad and at home.” Think Progress  That is a very strong statement coming from Ms. Ford.  What is really interesting is that her claim that foreign companies face a lower corporate tax rate would be important issue,  if it only was true! Continue reading “Corporate Liars and the Lies They Tell”

Zimmerman: Media Circuses Make for Bad Justice

Submitted by: Mike Spindell, Guest Blogger

At this point, to be honest, all of the back and forth regarding “evidence” in the Zimmerman Case that has occurred here over a number of threads has been mere speculation that misses the salient issues raised by this case. The real (admissible) evidence will be presented at the trial and a hopefully an unbiased jury will make its decisions. The issues that we need to discuss from my perspective are:

1. Did the Sanford Police make a mistake in releasing Zimmerman rather quickly and allowing him to retain his gun, which was potential evidence?

2. Was there undue outside influence used upon the police to end their investigation quickly?

 3. Is there a degree of probability that in many Stand Your Ground venues, had the victim been white and the protagonist of color, that the protagonist would have been immediately arrested?

4. What are the purposes of a business oriented lobbying group, like ALEC, in getting “Stand Your Ground” Laws passed?

5. Is this once again an instance where a media circus has poisoned the ability to have a fair trial? Continue reading “Zimmerman: Media Circuses Make for Bad Justice”

MK 269


Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

I know what you may be thinking.  Just what is that title all about?  It is not the serial number of the C-124 picture here.  It is an address of sorts, but you can’t find it on Google maps or with your GPS system.  It also represents a destination, of sorts, for myself and my family.  It took over 61 years to get this address and on last Monday, March 26th, 2012, my family took possession of this address for the first time. Continue reading “MK 269”

Defending Our Freedoms?

Submitted by: Mike Spindell, Guest Blogger

A recurring meme used in American society by leaders and politicians is that certain acts must be done to “Defend Our Freedoms”. The use of this meme has occurred repeatedly in our history as a justification for certain governmental actions, particularly in defense of war. In some cases like our Revolution, or World War II its usage has been right on point, in others like Viet Nam, Iraq and Afghanistan it’s been used as untruthful propaganda. On national and local levels the meme has also had a mixed history. It has been used to persecute radicals, as a States Rights justification of “Jim Crow” and post 9/11 to enact “security” legislation that many of us think actually diminishes freedom in the name of saving it. Continue reading “Defending Our Freedoms?”