A Tangled Web Indeed: United States and General Flynn Submit Evidence Supporting Agreed Upon Motion for Dismissal


United States v. Michael T. Flynn, Crim. No. 17-232 (D.  D.C.).  Hearing on government’s motion to dismiss and court’s appointed amicus’ views on further proceedings to be held on September 29, 2020.


Tomorrow the federal court in the District of Columbia will hear arguments about the government’s motion to dismiss the criminal proceedings against General Michael T. Flynn, and will also hear from the court’s selected amicus.  

Months ago the government moved to dismiss charges against General Flynn, asserting that the government did not wish to proceed and also asserting that any statements in issue were not material.  General Flynn agreed. 

Ordinarily prosecutorial determinations not to proceed are granted.  In General Flynn’s case, the court itself balked, opining that General Flynn ought to be found in contempt for making false statements when entering guilty pleas for making false statements.  The court hired an amicus to advise the court, General Flynn filed a petition for mandamus to the United States Court of Appeals for the District of Columbia Circuit where he initially prevailed, but later failed to obtain the writ, and the matter is again before the judge in the District of Columbia.

The United States does not believe that there exists a basis for further criminal proceedings and has, in support of its position, disclosed the unclassified and/or unprivileged portions of an official memorandum (FD-302) documenting an interview with a Federal Bureau of Investigations agent involved in investigating General Flynn. 

The agent reported that his work did not disclose evidence that would support criminal charges against General Flynn.  Moreover, the agent reported that those in charge of the investigation seemed determined to find a basis or bases for not only charging General Flynn but also discrediting President Trump.  

The collusion collision course:  the collusion, in the legal sense,  sought to be substantiated is not the collusion, in the colloquial sense, that has been revealed.  Not only has an agent involved in the investigation provided his statement and opinions, but the government has, at the eleventh hour, disclosed internal Federal Bureau of Investigation electronic discussions and text exchanges between the FBI’s Chief of Counter Espionage and private lawyer Lisa Page.  Both the internal and external exchanges are disparaging, and the commentary between Strzok and Page exchanges vows to defeat their disfavored candidate.

Just Lawful Prognostication:  The Judge assigned to this case, Hon. Emmet G. Sullivan, having recently had the blessing of the federal appellate court to go forward with examining the government’s motion to dismiss, will not take his obligations lightly.  

While the government’s recent public disclosures are embarrassing, this is not a crime, nor are the opinions of a federal agent, however revealing, of the sort that control prosecutions.  

Judge Sullivan is likely to proceed with caution, taking as much time as he sees fit, to issue a ruling, if any, for there is always the possibility that, having gained traction in this way once before, the judge will seek more investigation, hold more hearings, and conduct further review.

U.S. v. Flynn Government’s Supplemental Filing in Support of Dismissal

U.S. v. Flynn Third Supp Supporting Agreed Upon Dismissal

U.S. v. Flynn 248-1 Strzok and Page Texts

U.S. v. Flynn, ECF 248-2 McCabe Handwritten Notes

U.S. v. Flynn, ECF 248-3 Strzok Handwritten Notes

U.S. v. Flynn, ECF 248-4 Strzok Handwritten Notes

Between Friends: Judge’s Selected Amicus Urges Court to Refuse to Dismiss Case Against General Flynn and to Proceed to Sentencing

United States v. Flynn, No. 17-cv-232 (EGS).  Amicus Reply Brief Submitted September 11, 2020.  Oral argument scheduled for September 29, 2020. 

An amicus appointed by the federal judge assigned to proceedings brought by the United States against General Michael T. Flynn opened his reply brief by asserting that General Flynn’s “guilt is obvious.”  Although the government has moved to dismiss the proceedings and the general has concurred, the amicus opines that the government’s acts are simply not done, offering the conclusion that “clear evidence” indicates that the prosecutor’s motion to dismiss was precipitated by “a corrupt and politically motivated favor unworthy of our justice system.”  The amicus believes that the government seeks to reduce the Article III court to a “rubber stamp,” and that the court ought not permit itself to be “sullied” in this way.  Instead, because the D.C. Circuit Court of Appeals has held that Article III jurisdiction continues until the court has ruled on a prosecutor’s motion to dismiss, and because the court has discretion to inquire into wrongdoing which the amicus asserts has occurred, the court may deny dismissal and proceed to sentence General Flynn.

The court has requested that the parties to the case submit a joint status report with their recommendations for further proceedings, with a proposed briefing schedule and proposed dates for oral argument, not later than September 21, 2020.  

Amicus briefs submitted September 11, 2020 and June 10, 2020, without attachments:

U.S. v. Flynn Amicus Brief September 11, 2020

U.S. v. Flynn Amicus Brief June

Hardly Extraordinary: D.C. Circuit Reverses Course and Denies Mandamus, Returning Flynn Case to Trial Court for Inquiry into Government’s Motion to Dismiss


In re Michael T. Flynn, No. 20-5143 (D.C. Cir.) Order and Opinion Denying Emergency Petition for Mandamus entered August 31, 2020.


ICYMI:  Retired General Michael T. Flynn, having served in both the Obama and Trump administrations, was charged with making false statements to federal officers in connection with investigation of foreign involvement in the United States’ 2016 election and related matters.  Gen. Flynn twice entered guilty pleas yet later sought to withdraw those pleas, as exculpatory evidence became available and as the conduct of federal investigators came into question.

The Attorney General requested independent review of the matter subsequent to which the federal government moved to dismiss the charges against Gen. Flynn.  The trial judge retained as amicus a retired judge to aid in determining whether the matter ought to be dismissed, and even if the matter were to be dismissed, whether the trial court might independently hold Gen. Flynn in criminal contempt for perjury.  The court was committed to discerning the foundation for dismissing the case, which would include discovery of the prosecutorial process and hearings.

Gen. Flynn immediately petitioned for a writ a mandamus, which was initially granted.  The trial judge, having been requested by the court of appeals to respond, petitioned for en banc review.  

On Monday, the full complement of the D.C. Circuit Court of Appeals changed its initial position and denied mandamus relief.  Two judges dissented.

The per curiam opinion.  The majority of the panel concluded that mandamus was not appropriate where the trial court had not yet entered any order concerning the government’s motion to dismiss.  General Flynn could pursue appeal if any ruling were adverse to him, and as such, he had not made a showing that there existed no adequate means of redress.  The separation of powers arguments are speculative and, in the absence of concrete action on the motion to dismiss, cannot support extraordinary relief.  Moreover, the adversities the defendant complained about were not dissimilar from those visited upon other defendants, and unlike many others, the General remained at liberty.  

In addition, the panel majority found no reason to reassign the case to another judge.  The court’s commentary in the course of the proceedings was not unusual and without more cannot support reassignment.  Disqualification based on the trial judge having become a party in the mandamus proceedings could not be supported where the federal court of appeals determined to grant en banc review sua sponte.

Principles only, not politics.  D.C. Circuit Judge Griffith wrote a separate concurrence underscoring that the appellate court concerned itself only with the constitutional and jurisprudential questions presented notwithstanding any public commentary about political matters, including political appointments.

If not now, when?  Judges Henderson and Rao each wrote dissenting opinions and each supported the other’s views.

Circuit Judge Henderson affirmed her view that the initial In re Flynn mandamus ruling and order was correct, and worried that the standard set for reassignment by the panel majority is impossibly high, which will inhibit motions for disqualification that would otherwise be brought. 

The statutory standards for impartiality appear to have been diluted beyond any efficacy where the notion of “leave of court” with respect to prosecutorial motions to dismiss, heretofore liberally construed, now permits scheduling hearings and taking evidence to determine whether leave ought to be granted.  

Flynn’s petition for mandamus would limit the trial judge’s participation in the mandamus proceedings to that which the appellate court might invite, as with the request that the judge reply to the petition.  Rather than accept this limitation, the trial judge disregarded the order of the D.C. Circuit to dismiss the Flynn case and assumed the posture of a party to the litigation by demanding en banc review.  The majority of the panel appears to have sidestepped this concern by announcing that the court had determined that it would proceed to rehearing en banc sua sponte, notwithstanding that an order referenced the non-party judge’s request as the basis for its decision. 

Throughout these proceedings, the trial judge has behaved in a way that causes concerns about impartiality, the judge observed, in that the court offered its “disgust” and “disdain” for Gen. Flynn’s behavior.  The court’s selected amicus — in addition to inviting public participation as amici — was on public record supporting the denial of dismissal.  

Where a trial judge’s participate in mandamus proceedings is by invitation, the trial court’s retention of counsel and behavior as if the judge were a party indicated an opposition to dismissal before the fact.  That the trial court wanted to investigate whether the court itself could conclude that the defendant ought to be held in criminal contempt even if the case were dismissed is an indication that the court itself would pursue the defendant.  

Judge Rao noted that separation of powers principles undergird judicial deference to prosecutor’s motions to dismiss notwithstanding that “leave of court” is sought.  The proceedings envisioned by the trial judge are intended to discover the inner workings of the executive branch, which is not constitutionally appropriate.  Moreover, such an incursion is not necessary in light of the known shortfalls in the government’s conduct with General Flynn.

The contradictory positions assumed by the trial judge are troublesome.  Although the court issued detailed orders about the planned proceedings, counsel at argument before the circuit court stated that the trial judge may not make any findings as a result of the judicial inquest.  This negates the majority’s conclusion that the harm anticipated by petitioner Flynn is “speculative.”

The routine availability of appellate review as a basis for denial of mandamus relief would mean that there would be no extraordinary case warranting mandamus.  “Wishful waiting” is no shield against the harm that judicial involvement in the executive may cause here, particularly where Flynn’s liberty, which the executive no longer seeks to curtail, is threatened by the trial judge’s plan of action. (Slip opinion at 26.)

As ultimately dismissal must be granted and as the judiciary has no power to superintend the executive’s power to direct and to control prosecutions, any denial of dismissal by the trial court would mean mandamus would issue in accordance with precedent.  There is no need to withhold relief where the appellate court would do well to inhibit error. 

Moreover, in light of the known errors of the executive, there is much to be said for permitting self correction and little to be said for further proceedings with the harm that would ensue to petitioner Flynn.  Incarceration is not the benchmark for measuring losses already occasioned and those foreseeable if proceedings continue.

The morass created by this case may not be without instructive value, according to Judge Rao, who concluded:

This case highlights the essential connection between the Constitution’s structure of separated powers and the liberty interests of individuals. While modern administrative government often blurs the separation of powers, at least in criminal cases courts have steadfastly policed the separation of powers, ensuring that a criminal defendant may lose his liberty only upon action by all three branches of the government. By allowing the district court to scrutinize “the reasoning and motives” of the Department of Justice, En Banc Pet. 13 (quotation marks omitted), the majority ducks our obligation to correct judicial usurpations of executive power and leaves Flynn to twist in the wind while the district court pursues a prosecution without a prosecutor. The Constitution’s separation of powers and its protections of individual liberty require a different result. I respectfully dissent. 

2020 08 31 Flynn Mandamus Per Curiam

2020 08 31 Order on Mandamus

2020 08 31 Order on Flynn Mandamus Petition En Banc

Monitoring the Unblinking Mechanical Eye: Unlimited Static Pole Camera Surveillance of Personal Residence Requires Probable Cause and Warrant Under Massachusetts Constitution, State Supreme Court Concludes

Commonwealth v. Nelson Mora, SJC-12890 (August 6, 2020).

In investigating a drug distribution network, Massachusetts police installed video cameras on telephone and electric poles (“pole cameras”), some of which faced the homes of alleged drug distributors. 

Evidence from the video cameras, as well as other evidence, resulted in indictments.  Several defendants moved to suppress the pole camera evidence and the fruits thereof, arguing that evidence garnered in this way violated Article 14 of the Massachusetts Constitution and the Fourth Amendment of the U.S. Constitution.  

On interlocutory appeal from denial of defendants’ motion to suppress, the Supreme Judicial Court of the Commonwealth of Massachusetts concluded that protracted warrantless video surveillance violated the state constitution.  Having done so, the court declined to address the U.S. Constitutional issues.  

The court remanded the case to permit the trial court to determine whether probable cause supported the installation of the cameras surveilling the personal residences from the outset.

How it happened.  A confidential informant identified defendant Mora as a drug dealer. After a staged purchase of drugs, cameras were installed outside Moran’s and another defendant’s houses.  The cameras provided a view of the front of the house as well as the sidewalk and the adjacent street.  The cameras recorded continuously — for five months in Mora’s case –without audio and were static except for the capacity to zoom in and out.  The interior of homes could not be seen and no particular features permitted nighttime surveillance.  

The trial court found the surveillance unexceptional.  The trial judge denied defendants’ motions to suppress because the cameras captured only information in plain public view.  The cameras aimed at a fixed point and were not capable of capturing detailed activities and associations.  Observation of matters on public display traditionally does not carry a reasonable expectation of privacy and does not require a warrant.  The court concluded that pole cameras did no more than that.  

In de novo review of the central question whether the pole cameras’ surveillance were unconstitutional warrantless searches, the Supreme Judicial Court asked first whether there was a search.  A search may be unconstitutional if it intrudes upon an individual’s reasonable expectation of privacy, but no such expectation is ordinarily found where the observation is of matters in plain view of the publix. 

Pole cameras have been in use for several decades.  Other courts’ reviews have yielded mixed results. 

The court found it unnecessary to address federal issues and noted that the Massachusetts Constitution may afford more protections than the U.S. Constitution.  The court framed the central question is whether a defendant had a reasonable subjective expectation of privacy and whether society would recognize the expectation as unreasonable.  

The appellate court recognized that defendants had subjective expectations that their homes would not be subjected to extended surveillance.  There was no need to create barriers around the property to obtain constitutional protection.  Such a requirement would make the constitutional resource dependant, and an impermissible result, as the home is a castle no matter how humble.  (Slip Op. at 14.)

What society may recognize as objectively reasonable is a large and difficult question, the court opined, but noted that case law has recognized that extended surveillance without probable cause and judicial supervision is problematic.

Location, location, location…and duration. The duration and location of surveillance matters, the court found, making it possible to extend protection to protracted video recording of houses but not to public places, particularly as surveillance cameras are abundant there and in commercial venues.

The Founders’ Prescience. Protecting the home from government intrusion is the reason that federal and state constitutions were drafted as they were.  The promise that the sanctity of the home will not be needlessly or recklessly breached is historically significant, and the framers may be thanked for a prescience that precludes a contemporary Orwellian state.  (Slip. Op. at 22.)

The argument that pole cameras outside the home catch no more than a police officer might see must faile, as the very inexhaustibility of the machines negates comparison.

As heretofore it has not been thought necessary to obtain a warrant to conduct pole camera surveillance, the Supreme Judicial Court decided that remand to determine whether propane cause for use of the cameras existed at the time of installation, which might be established by review of existing evidence submitted in support of warrants that were obtained or by supplementary evidence if needed.  If probable cause existed for installation of all of the cameras, suppression of evidence must be denied, but if probable cause did not exist, suppression as to the cameras surveilling the homes only may be allowed. 

Commonwealth v. Mora, SJC 12890 (August 6 2020)

  

 

 

 

 

Case Dismissed! Federal Court of Appeals Orders D.C. Federal District Court to Grant United States’ Motion to Dismiss Criminal Case Subsequent to Plea Agreement Admitting False Statements to Federal Bureau of Investigation

In re. Michael T. Flynn, No. 20-5143 (D.C. Cir.) Petition for writ of mandamus granted in part on June 24, 2020.


General Michael T. Flynn was investigated by the Federal Bureau of Investigation in relation to contacts with foreign sources.  General Flynn plead guilty to lying to federal officers, testifying under oath that he was in fact guilty and had not been subjected to duress.  Months later the United States moved to dismiss the case against General Flynn, having concluded that any false statements made were not material to any investigation.

The United States District Court for the District of Columbia did not look kindly on the United States’ motion to dismiss, and in response invited amici submissions and scheduled hearings to determine whether he ought to find General Flynn guilty of perjury notwithstanding the United States no longer wishing to pursue the matter.

General Flynn’s counsel petitioned the D.C. Circuit Court of Appeals for a Writ of Mandamus which was today granted in part.   The appellate court has ordered the trial court to dismiss the case, but the appellate court refused to transfer the case to another judge.  In light of these determinations, disputes about the engagement of an amicus to assist the trial judge were rendered moot.


The D.C. Circuit  opined that dismissals of criminal matters rest soundly with prosecutorial discretion.  Rule 48 of the Federal Rules of Criminal Procedure has a limited “leave of court” requirement that is intended to protect against prosecutorial harassment.   United States . Fokker Services B.V., No. 15-1306 (D. D.C. 2016).

The court observed that this is not an extraordinary case in which judicial involvement in dismissal could be warranted.  General Flynn agrees with the prosecution, there is no evidence of harassment, and recently produced exculpatory evidence supports the Department of Justice’s view that the interviews with General Flynn in issue were not material to any prosecution.

Moreover, the appellate court concluded, harm to the prosecution in refusing to dismiss is not speculative, particularly in that the hearings proposed by the trial court would provide a foray into the deliberative processes of the Executive Branch.  It is right to attend to the interests of the Executive Branch, the court found, as the executive is not just any party, but is the branch responsible for criminal prosecutions.  Equally significant is that a trial court’s assumption of a supervisory role over the executive would not be a theoretical breach of the separation of powers, but would chill effective prosecutions.

Further, the trial court’s designation of an advocate for for the prosecution put the two coequal branches of government on a collision course.

The appellate court refused to rewrite the limited “leave of court” provision of Rule 48, F.R.Crim.P. to permit elaborate mic submissions and extensive hearings, finding that “[t]he district court has no mechanism by which it can maintain a prosecution in the absence of the Executive Branch moving forward.”  (Slip. Op. at 14.)

Dismissal cannot turn on what a judge independently thinks in in the public interest.  A court should not second guess except in an extreme case:  extensive, pershpas inquisitorial, inquiry in a non-extreme case would contravene Supreme Court precedent and would be inconsistent with  Article III powers.

The majority countered the dissent’s position that a writ of mandamus cannot issue until the trial court has acted, finding that an actual ruling on the motion to dismiss was not necessary where the court had already invited amici and scheduled hearings.

Dissenting Justice Wilkins opined that the majority wholly misdefies the issue at hand.  The question is not whether a court may deny a Rule 48 motion to dismiss but whether the court is precluded from making any inquiry at all.  The appell majority ruling that the district court overstepped its authority has been followed by the appellate court’s following suit, for there is no basis for the court to issue a writ of mandamus absent a discrete action by the district court.

The dissent found the majority’s reliance on Fokker disengenuous, for in that case, a deferred prosecution agreement, not dismissal was in issue.  Reliance on Fokker, Justice Wilkins found, “transforms dicta into dogma.”  (Slip Op. Dissent at p. 3, Part B).

The dissent expressed fear that the majority has read the public interest out of Rule 48.  The law is not as settled as the majority would say and it is not possible to say that petitioner has no other relief available, where it is clear that it exists.

The dissent offered that there is no reason, even in the absence of explicit authority, that a trial judge cannot enlist assistance in charting its course on a case.

Prosecutorial discretion cannot be made into an impenetrable shield.  The dissent observed that the appellate ruling decimates the discretion that resies in trial court’s concerning motions to dismiss.

This is particularly worrisome, Justice Wilkins found, where but months ago the statements now deemed ‘immaterial’ were said to have gone to “the heart of the government’s case.”  (Slip. Op. Dissent at p. 17).

2020 06 24 Opinion In re Michael T. Flynn

2020 06 24 Order in re Michael T. Flynn

 

 

 

 

 

 

 

 

Surveillance Without Surcease: Massachusetts’ Highest Court to Review Constitutionality of Continuous, Warrantless Videorecording of Criminal Defendants’ Houses

Nelson Mora, et al. v. Commonwealth of Massachusetts, SJC-12890.  Oral argument scheduled for May 5, 2020.

Related:   Commonwealth v. McCarthy, SJC-12750.  Opinion issued April 16, 2020.


Defendants were arrested as part of an ongoing state effort to interrupt commerce in drugs.  As part of that effort, police installed, without warrants, video cameras in public spaces outside defendants’ houses.  These “poll cameras” permitted uninterrupted video recording of the outside of these houses and were equipped with zoom features to permit closer scrutiny.  

Defendants moved to suppress the video evidence as violative of the Fourth Amendment of the U.S. Constitution and Article 14 of the Constitution of the Commonwealth of Massachusetts.  The Superior Court denied relief, finding that defendants have no reasonable expectation of privacy in the exteriors of their homes, which were plainly visible to the world.

Interlocutory review was sought and granted.

Appellants/Defendants argue that incessant videorecording denies defendants’ constitutionally promised privacy interests, which are not defined with reference to brightline distinctions between exteriors and interiors, but rather with respect to the reasonable expectations of privacy enunciated in Katz v. United States, 389 U.S. 347 (1969).  Static, unceasing and warrantless mechanical surveillance is a search which intrudes beyond any reasonable bounds of police powers.  

Defendants are supported by several civil rights and technology advocacy entities, who join in characterizing the surveillance in issue as “Orwellian.”

The state stands firm in its view that that which is in plain view is not private, and that even if issues were to be found in these searches, error should be excused on the basis of the police’s good faith.

Just weeks ago the Supreme Judicial Court outlined constitutional parameters of static camera recordings of vehicles permanently placed at the ends of bridges linking the main land of Massachusetts with Cape Cod.   Following an extensive review of the foundational ideas that support the law of searches and privacy, and after concluding that the camera surveillance in issue could be a search, the court found no constitutional violation as the car in question could be seen without technology and any intrusion was of limited duration.   Chief Justice Gant wrote separately in concurrence, suggesting that the course going forward might be better served if authorizations based on reasonable suspicion and subsequent probable cause were obtained in advance of surveillance. 

Appellants/Defendants embrace McCarthy as pointing the way for a decision in their favor.  The state has tradition on its side: many considerations of poll cameras have found their use to be constitutionally innocuous, with only a few courts demanding that this form of surveillance  be cabinned by time limits.

Justlawful’s Observation.  The “in plain sight” argument offered by the state, if woodenly applied, could lead to results that would undermine Katz.  Moreover, the argument that recording shows only what a passerby might see becomes problematic if human rather than mechanical supervision were in issue.  Were a person to stand in observation of a residence without interruption, the homeowner or resident might well feel intruded upon, even if the onlooker could see only the exterior of the home, and might be justified in seeking injunctive relief to cause the behavior to cease.   

Briefs of the Parties

Commonwealth v. Mora – SJC-12890 Appellants’ Brief

Commonwealth v. Mora — Commonwealth’s Brief

Commonwealth v. Mora — Appellants’ Reply Brief

The McCarthy Decision

2020 04 16 Commonwealth v. McCarthy SJC-12750

For those fond of legal history, an 1890 Harvard Law Review article outlining Warren and Brandeis’ Views of Privacy

Warren and Brandeis, _The Right to Privacy_

 

 

 

 

 

 

Massachusetts Trial Court Considers the Constitutional Contours of End of Life Care

Kligler and another v. Attorney General Maura T. Healy and another, No. 2016-03254-F (December 31, 2019)


Two physicians, one terminally ill and one whose practice includes care for the terminally ill, sought declaratory relief upholding as constitutional the prescription of fatal doses of medication for patient self-administration, called Medical Assistance in Dying (MAID) and upholding as constitutional discussion of such assistance and referrals to sources competent and capable of providing such prescriptions.

The physicians were wholly successful in obtaining, with no opposition from the state, the court’s opinion that the discussion of assistance in dying and the making of referrals to obtain such assistance is protected by the First Amendment.  In that no prosecution is likely to ensue from such discussions, the court declined to enjoin the state from so doing.

The court declined to find the characterization of medical assistance in dying as involuntary homicide to be unconstitutional or to find the application of involuntary manslaughter statutes to such aid to be unconstitutionally vague.  The United States Supreme Court has twice stated that substantive due process principles do not protect a physician’s right to participate in assisting in dying. Moreover, concepts of criminal law have long traditions leaving no one to guess what is proscribed within the meaning of “involuntary manslaughter.”

In the absence of a fundamental constitutional right, the state need only show that the prohibition of prescriptive assistance in dying serves and is reasonably related to an important government interest.  The preservation of life, the prevention of suicide, the protection of vulnerable populations, and the maintenance of sound medical practices and ethics are such interests, the court observed. In light of the irrevocability of administration of fatal medications, the court concluded that the proscription against such prescriptions is not unreasonable.

The court rejected the physicians’ arguments that a patient’s ingestion of the fatal doses of medications would serve as an intervening cause of death, relieving the physician of liability, where death is the known outcome at the time of issuing the prescription.  Nor was the court persuaded that the absence of coercion could change the result where, as before, death would be the known and intended outcome of the act of prescription.

The court likewise rejected equal protection challenges, observing that the law can and does respect the privacy and autonomy rights that attach to the refusal of medical treatment while concomitantly finding no corollary in any right to administer death.  Moreover, the active prescription of lethal doses of drugs differs from the permissible cessation of extraordinary treatments, the voluntary cessation of eating and drinking, or the provision of palliative pain management. The first produces death as a result of active physician intervention,  while the latter permits death to ensue as a natural result of underlying disease or debility.

The trial court noted that as social thought changes, so too may the law.  The trial court articulated its decision according to current precedent, yet noted change has occurred in the thirty years since the controlling decisions issued.  Of equal if not greater importance, the court concluded, the determination of the parameters of end of life care are not best addressed by the courts, but should be undertaken by the legislature.  

2019 12 31 Kligler v. Healy (Suffolk Sup. Ct.)

Criminalizing Public Criticism: Federal Court Rules Pre-Enforcement Challenge to New Hampshire Criminal Defamation Statute May Proceed

Frese v. McDonald, 2019 DNH 184 (D. N.H., 2019). October 25, 2019.


Policing the police through public speech may be stifled, or ‘chilled,’ in First Amendment nomenclature, the federal court in New Hampshire has ruled, where the scope of the state criminal defamation statute is not clear. The addition of a scienter or knowledge requirement concerning false statements or the likelihood of public contempt adds nothing to dispel this apparent vagueness, the court has observed, particularly where the distinction between criticism and the invitation to contempt is not always plain.

Frese, a vociferous challenger of police and other official behavior, need not await actual criminal enforcement where his First Amendment interests are involved and where the exercise of those rights may be suppressed because of the threat of prosecution. Where encounters with the police have occurred in the past, where citizens as well as police may initiate proceedings, where there are indications that enforcement may be arbitrary, and where a criminal misdemeanor defendant may not insist on a jury trial or counsel, Frese’s constitutional interests are of such import that dismissal at the pleading stage is not warranted, the federal district court has concluded.

JustLawful Observation: Plaintiff Frese has not endeared himself to the New Hampshire authorities, but has found an ally in the American Civil Liberties Union, which has advocated on his behalf.

This test of the limits of criminalization of speech concerning public officials will likely have repercussions beyond New Hampshire: the ACLU observes half of the states have similar statutes.

Not all are in accord in this effort to release any choke-hold, real or imagined, that the threat of criminal prosecution for public criticism carries. At least one noted First Amendment scholar disagrees with the federal court in New Hampshire. As the statute is limited to knowingly false statements, this state of mind requirement saves the criminal defamation law from constitutional infirmity.

Ruling on Motion to Dismiss:

Frese v. MacDonald 2019 10 25 D. N.H.

News Accounts and Commentary:

Vagueness Challenge to N.H.’s Criminal Libel Statute Can Go Forward – Reason.com

He Disparaged the Police on Facebook. So They Arrested Him. – Liptak, The New York Times

Civil Settlement New Hampshire Union Leader

Concord News Coverage of Frese

Banned in Exeter_ Police Critic Unwelcome at Church, Shops. Seacoastonline.com – Portsmouth, NH

New Hampshire Police Arrested a Man for Being Mean to Them on the Internet

Model Citizen_ No. But Exeter Man Is At Center of First Amendment Dispute _ New Hampshire Public Radio

 

 

 

Criminalizing the Publication of Private Images Without Consent: The Supreme Court of Illinois Finds No Constitutional Flaw in “Revenge Porn” Statute

People v. Austin, 2019 Il 123910.  October 18, 2019.


Illinois boasts of the most rigorous law in the land respecting criminal liability for the dissemination of sexual images without consent. 

A trial court found the statute to be an impermissible content based speech restriction,  The circuit court dismissed a case against a woman who provided third parties with images of her former fiancee’s lover that were created and transmitted electronically between the former fiancee and lover.  

The state’s highest appellate court has reversed that determination, holding that the statute was not a content based regulation of speech but a valid exercise of state power to protect privacy.  

The court noted that the colloquial term “revenge porn” hardly captures the depth of the ills that may ensue when private images are published.  This is particularly so where the internet has produced its own niche for such images, drawing multitudes of eyes. 

There is an avid thirst for such materials in the online world, and there is no guarantee that even the most rigorous scrubbing of the internet would remove all images once set free in the ethereal, yet durable, online world.  Reputations and livelihoods may be lost, and families and loved ones may suffer. The court observed that there is no shortage of enduring damage that can ensue from publishing private images, and, in the court’s opinion, no civil law remedies will come close to ensuring such behavior is discouraged. 

The court’s majority sidestepped content analysis by observing that the statute does not concern content  so much as it makes criminally culpable the intentional publication of private images without consent. As only private images are of concern, the statute does not burden more speech than is necessary.  Moreover, to be criminal, publication must be intentional and with knowledge that the images were considered private.  

The court declined to announce a new species of speech categorically unprotected by the First Amendment.  Instead, the majority decided that the state has long acted with legitimacy in protecting privacy without encountering First Amendment infirmities where they are found to survive intermediate scrutiny. 

The court noted that the statute is not unlike other laws which prohibit disclosure of private matters such as medical records or identifying information.  Moreover, state action addressing private communications ordinarily receives somewhat less constitutional protection than does speech on matters of public concern, for the latter are the core of the First Amendment’s concerns.

Given the statute’s narrow scope  — the intentional distribution of sexual images understood to be private —  the court rejected an over-breadth challenge, as it is not likely that the statute could be found to proscribe a substantial amount of protected speech. Where it was conceded that the statute was sufficiently clear to avoid arbitrary enforcement, only a vagueness challenge remained, but the plain meaning of the plain language of the statute defeated its recognition.

The court also rejected the argument that the recipient of a sexual image acquires property interests that would invoke due process protections.  Being cognizant of whether an image was intended to be private does not require mind-reading. 

Two dissenting justices decried the majority’s recognition and subsequent abandonment of strict scrutiny as the standard of review and sharply dismissed the notion that the statute does not concern content when the subject of the statute is content:  private sexual imagery.  The statute, which provides no standard of intent, cannot be seen as narrowly tailored to serve any compelling state interest that might be found.  There are less restrictive means than criminal conviction to address any issues presented by ‘revenge porn,’ such as a private right of action.  

JustLawful Observation:  Within the past decade many states have enacted laws criminalizing the publication of private images.  Vermont has already considered its state statute, and found it to be constitutionally sound. More challenges will no doubt ensue, and it is not beyond imagination that at some point the United States Supreme Court will be requested to address the concerns raised by the statute.  This is particularly so where new categorical exceptions from First Amendment protection — such as racial epithets — are under discussion as potential solutions for otherwise insoluble and repetitive First Amendment issues.  

People v. Austin, 2019 IL123910

State v. Van Buren 2018 VT 95