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Tuesday, September 20, 2016

Investigative work into Ahmad Khan Rahami

I do quite a bit of investigative work and there are similarities between investigative attorneys (of which I am one of the few), actual government investigators and the declining number of investigative journalists.

Here is the product of research done in the last 24 hours since the name of the New York bombing suspect was released.

Monday, September 19, 2016

Bridgegate Prosecutors Say Christie Knew Of GWB Lane Shutdown As It Happened

Perhaps lost in the breaking news about New York City (#ChelseaNYC) bomb suspect Ahmad Khan Rahami being apprehended in central New Jersey...

New Jersey Governor Chris Christie knew about the lane closures leading to the George Washington Bridge in September 2013 as they were occurring, according to federal prosecutors making their opening statements in the trial of two former Christie aides which began this morning. The source, according to prosecutors, will be David Wildstein, Christie's former appointee to the Port Authority.

Wildstein's charge is not a surprise, given his claims (through counsel) virtually since the scandal broke and once New Jersey legislative committees began investigating and holding hearings in late 2013. Those investigations likely begat the federal prosecutors' investigation which led to the indictments of Bill Baroni and Bridget Kelly (who are the ones on trial) and to Wildstein's guilty plea, entered in court on the same day as Baroni and Kelly were arraigned in May 2015.

If the prosecutors' statements are proven, it raises the question of whether the statements will confirm or debunk Christie's possible statements to federal investigators who reportedly interviewed him about two years ago. It raises the thorny issue of what Christie said in that meeting. It is possible Christie took the Fifth Amendment on some questions, and that this information was not released. (That theory might explain why Christie may not be called as a witness, but we have to wait for the trial to unfold further.)

Christie has not been charged, but he may be on the list of unindicted co-conspirators which was kept sealed by a federal appellate court (Third Circuit) last month. 

The legal reason for deeming someone to be a co-conspirator may have little (or nothing) to do with that person's actual culpability. It goes to a method for prosecutors to expand their ability to use statements which otherwise might be excluded as hearsay. There is an exception to the hearsay rule when the alleged speaker is a co-conspirator, unindicted or indicted.

There is one other question to be raised, and it is less a legal question than a judgment and temperament question. Should the allegations be confirmed, they will make Christie look extraordinarily vindictive and prone to the abuse of power. These qualities will likely impair his attractiveness to an appointed position in a Republican presidential administration. However, they should also raise questions as to his fitness to serve as the United States Attorney, the position he held from 2002 to 2008 (appointed by President George W. Bush).

Wednesday, September 14, 2016

Cyber bullying Conviction Reversed

A New Jersey appellate division last week reversed and vacated the felony conviction of a Rutgers University student in connection with cyber bullying alleged to have caused the suicide of another Rutgers student, Tyler Clementi.

I wrote about this travesty of justice several times over the past several years. The suicide itself is a tragedy. However, that tragedy did not justify the three acts of appallingly poor judgment which followed.

First, the Clementi family jumped on the victim bandwagon. Grief is understandable. Trying to ruin another's reputation to atone for one's guilt at fear of somehow missing the signals of a suicidal or self-harming mind is not acceptable.

Second, Middlesex County prosecutors used this case to demonstrate their virtue. This is an inappropriate use of prosecutorial resources and smacks of a political or social justice vendetta. The proper aim of prosecutors is to exercise the power of the state to deter and punish crime. Yet here, the crime was hardly discernible and indeed there is no ruled to be no crime. But even if there were a crime, prosecutors failed to exercise good judgment in blatantly overlooking the following core facts:

1. dorm mate Dharun Ravi recorded acts occurring within his own room,

2. The reasonable person understandably might have been upset or even revolted from an epidemological point of view, that being the reasonable point of view to anyone having to live in a shared space, and

3. In a shared space, the concept of privacy must adapt to the concept best described by the plural pronoun "our," not the singular pronoun "my."

This prosecution either ignored the concept of a shared space, or worse, it struck a chord for a preferential right for one student based upon his apparent sexual preference (demonstrated on only one occasion), and a disfavoring or subordination of the privacy and other rights of another student who, apparently, did not share the same preference.

It is hard to square this prosecution with a fundamental respect for equal rights under the law.

Finally, these same critiques must be laid at the feet of New Jersey legislators. They enacted a law but failed to consider (or counted on the liberal courts to uphold) the flawed constitutionality and legality of the statute. The legislative function when properly exercised, does not invite or encourage the abdication of its own judgment and "kick the can down the road" to the judiciary.

Here, it seems politics reigned supreme. Dharun Ravi spent some time in jail and got his reputation severely harmed, as he is collateral cannon fodder in this sordid social justice debate.

Sunday, September 4, 2016

Are Smart Contracts Unamerican?

One of the in-vogue new tech phrases of the last year or two has been "smart contract."

This generally refers to some computer code effecting a self-executing contract that is supposed to dispense with the need for lawyers or the risk of lawsuits.

In other words, this is a tech unicorn.

Outside the United States, and in the fantasy utopia land between the ears of too many Americans, lawsuits and lawyers are considered a uniquely American hindrance interfering with commerce.

Inside the United States, lawyers and lawsuits are considered a vital and necessary deterrent to bad behavior. Sure, bad actors exploit their use as well, but litigation and access to your day in court provides a useful protection to those who believe they've been robbed, swindled or bamboozled. Plus, it's peace of mind.

Outside the United States, it's really tough being the victim of a predatory business practice. That's why many foreign entrepreneurs come to the United States. And when they go to other countries, guess what? They pick countries which have American-style legal protections and recognize American-style property rights and due process.

The smart contract as envisioned commonly today does not recognize or properly account for these rights. Circumstances change and disputes can arise during the course of performance. A smart contract may not be the best tool in those situations.

In short, today's smart contracts are often fatally flawed. They exchange the prospective and feared contingency (for example, someone trying to welch on a deal) for an actual and quantifiable loss (such as an inflexibility in seeking redress for a dispute arising during performance).

In any other situation, exchanging a possible harm for a second harm much more likely to occur, is sheer madness. So it is here.

If you are comfortable restricting the rights of parties to seek a neutral hearing in court over what they think are legitimate disputes, then the current brand of autocratic, rights-restricting smart contracts are for you.

However, that goes against the grain of the entire trend of foreign capital and innovation moving into the United States. Intellectual capital is the most protected in the United States. So why would our smart contracts pattern themselves after the autocratic solutions of less-free, less-hospitable countries?

Smart contracts have great potential. However, your smart contract must meet several requirements to work for you. It has to be written in conjunction and consultation with seasoned American corporate lawyers. This means someone who understand how contracts are supposed to work, how contracts are enforced in the American legal system and how litigation works. It also means the ideal smart contract lawyer understands how business and commerce works. Business and economic realities are critical to making any deal work.

Unless you have this smart living lawyer involved fully in the process, your smart contract will be nothing more than a lot of brilliant and expensive code, which will be even more expensive to fix the problem it fails to prevent in the first place.