Selective Prosecution: Illegal or Just Unfair?

Posted on Jun 1, 2017 in Blog Entry: Criminal Cases, Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. So-called selective prosecution is only illegal if a defendant is singled out for a purpose that is itself wrongful, such as discrimination based on race, gender, or political or religious affiliation. Like claims of a prosecutor’s vendetta, allegations of selective prosecution may get some press play but are almost never heard by juries. Actually, there is nothing illegal about prosecutors being selective. Law enforcement has every right to allocate limited human and financial resources and pursue some but not all perpetrators. No matter how many people are traveling 72 mph in a 55-mph zone, the two who are pulled over have no right to complain about the hundreds who continued to speed on down the highway. Nor is there anything illegal about targeting high-profile wrongdoers. In fact, in the federal system, where only a small fraction of potential crimes are actually the subject of federal indictments, prioritizing high impact cases is the name of the game. From the prosecutor’s standpoint, a defendant loaded with publicity value creates plenty of free advertising for the message of law enforcement about crimes and punishment. Prosecuting Winona Ryder for shoplifting at Saks Fifth Avenue made a more potent warning to prospective thieves than the conviction of an unknown. Similarly, bringing tax evasion cases against actor Wesley Snipes and businesswoman Leona Helmsley was a powerful message to potential tax cheats. What makes selective prosecution illegal is an improper purpose. A prosecution mainly motivation by vindictiveness, if provable, would qualify. So would targeting particular political leaders or members of a racial or ethnic minority. But the last time the Supreme Court validated a selective prosecution defense was during the nineteenth century. In the famous case of Yick Wo v. Hopkins, the court found that a San Francisco ordinance imposing stricter requirements on laundries was only enforced if the operators happened to be Chinese. Unless a discriminatory effect as well as a discriminatory purpose can be proven, no claim will be sustained. Such selectivity could also be a constitutional violation if, say, a prosecutor targeted only defendants of a particular faith or political affiliation. In such instances, it is not the mere act of selecting some defendants rather than others. It is instead selecting them on grounds that violate their First Amendment or equal protection rights. Much of what is claimed to be discrimination results from efforts to target prominent people. Perhaps celebrities and politicians are indeed discriminated against in this sense, but such extra scrutiny is an occupational hazard. As long as neither political ideology nor demographics are the motivation, it is not illegal discrimination. It is the price of fame. For the latest news and updates for Kendall Coffey, be sure to follow him on...

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Defense of Insanity: Overly Successful or Overrated?

Posted on Apr 7, 2017 in Blog Entry: Criminal Cases, Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. Even for defendants who are mentally ill, the legal defense of insanity is rarely successful – especially since the laws changed in the wake of the insanity-based acquittal of John Hinkley Jr., President Reagan’s attempted assassin. Insanity might seem like a really good idea, at least for a defendant caught red-handed in criminal activity. In everyday conversations people are quick to suggest that an otherwise guilty person can get off by claiming insanity or even temporary insanity. Such defendants are crazy, the public speculates, but crazy like a fox. The legal reality is galaxies apart from this popular wisdom. In criminal prosecutions, a plea of not guilty by reason of insanity is presented in 0.85 percent of cases, less than one in a hundred. Such strategies succeed no more than a fourth of the time. So the odds of an accused criminal beating the rap by wrapping himself in a straightjacket are roughly on in four hundred. Ironically, even individuals who are clearly mentally ill are not necessarily considered insane for legal purposes. Unless the affliction it’s an extremely narrow definition of what constitutes insanity for legal purposes, mental disease is no defense. Just consider the number of prison inmates who have serious mental disorders. This poses increasing problems for corrections officials who lack the resources to provide them with proper care. In the past, an insanity defense was more readily available. Things changed in 1981 with the attempted assassination of President Ronal Reagan and the subsequent trial of assailant John Hickley Jr. By any standard, Hinckley was mentally ill. Obsessed with movie star Jodie Foster, he thought killing President Reagan was a great way to get her attention But public uproar greeted his acquittal in 1982 by reason of insanity. Some 83 percent of Americans believed that justice was not done Neither the public nor the jury usually knows that an acquittal by reason of insanity is not much of a victory. Insane defendants, especially violent ones, spend many years in mental hospitals that are the equivalent of prisons. In fact, Hinkley would spend close to twenty-eight years in a mental facility before being allowed limited visits to his mother’s house. Some states do not even permit an insanity defense. The US Supreme Court determined in 2006 that Arizona did not violate the Constitution by preventing a defendant from presenting the defense of legal insanity. In That case, a young man, who believed that aliens were out to get him, killed a police office in Phoenix. No one accused the defendant of faking. His mental illness was undeniable. The Supreme Court found that the state could hold him accountable nonetheless, and it allowed the conviction and life sentence to stand. Texas mother Andrea Yates was likewise impaired when...

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Pop Law: Do Celebrities Get Special Treatment?

Posted on Mar 28, 2017 in Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. The public usually assumes that celebrities receive preferential treatment at every turn in criminal cases, as well as in civil proceedings. Their lawyers tell a different story. The one point of agreement is that celebrities, like other people with lots of money, can hire the best legal representation. Additionally, a Martha Stewart can afford public-relations consultants and even public-opinion surveys, while ordinary defendants may be getting advice from only their family members and drinking pals. Except for the issue of financial resources, celebrities are otherwise less favored by the system than one might think. Certainly, when it comes to being investigated, no one receives more scrutiny than a celebrity. Prosecutors and investigators look under every rock and behind every blade of grass. After all, if proceedings are brought, famous people become famous cases, and high-profile trials define the careers of prosecutors and sometimes of police and of criminalists. Additionally, celebrities may have more difficulty getting favorable plea deals. Few prosecutors want to face public outrage and press rancor for supposedly letting a celebrity off the hook. As to prison time for guilty celebs, judges usually try to sentence the rich and famous as if they were neither. When cameras are hovering nearby, judges know they will not be rewarded for leniency. Fraudster Bernie Madoff received a one-hundred-fifty-year prison sentence, five times his likely life expectancy. At the other end of the criminal spectrum, Paris Hilton was sentenced to forty-five days in jail for violating probation by driving without a license. Her sentence was certainly not lenient to begin with, but her modest legal problems were about to become a ratings gangbuster that attracted extensive coverage from cable news. When she was released early due to medical issues, a national uproar ensued. Within hours, the judge ordered her back into court and then on her way back to Los Angeles County jail. Professor and legal analyst Laurie L. Levenson attributed Hilton’s above-par punishment for traffic violations to the reality that “people are fed up with celebrity justice.” Being tough on Paris Hilton may have seemed harsh to her family and her fans, but for most of the public, the judge seemingly stood tall when Paris Hilton went down. Keep up with the latest updates from Kendall Coffey on Twitter,...

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When Sports and the Law Collide

Posted on Aug 22, 2016 in Blog Entry: Spinning the Law

When most of us catch the game on TV, we aren’t really thinking about all the legal issues surrounding sports. We’re just hoping to unwind with our favorite team. In reality, however, the law extends into athletics just as much as anywhere else. For sports-loving, would-be lawyers, that makes for a great opportunity. After all, someone has to represent those players, team owners, concession stand workers, administrators, and others when problems arise. In his description of life as a sports lawyer, professor, and director of the National Sports Law Institute, Matthew J. Mitten recounts a variety of cases he’s dealt with: representing a county during litigation surrounding an NFL club’s relocation; providing legal advice to a baseball player wanting to level a medical malpractice suit at his former team; and more than one situation sparked by intellectual property law. Mitten’s tasks run the gamut from registering trademarks to providing information about liability. He’s served sports physician organizations, coaches, referees, sports facility operators, sports broadcasters, and more. He’s had to delve into his knowledge in a variety of areas of law, including contract, labor, and intellectual property law. Sports law isn’t just for professional teams, either. Schools—both high schools and colleges—face legal issues as well. Here are just a few in recent times: College athletes wanting to unionize. The National Labor Relations Board was faced with a case involving Northwestern University scholarship football players wanting to unionize back in 2014. While initially finding in favor of the athletes, the Board stated the following year that they would not uphold their previous decision. An appeal to federal courts is still a possibility. Title IX and gender equity. Schools across the country struggle to keep up with complaints regarding Title IX issues, particular in terms of offering equal opportunities to both boys and girls when it comes to sports. Since the mid-90s, there have been about 125-150 complaints regarding Title IX infringement filed with the OCR, with half going to settlement and half ending up in federal courts.  Serving athletes with disabilities. Since the Disabilities Education Act, schools across the country have made an effort to make athletics available to students with disabilities, with varying results. In 2013, the United States Department of Education, under Arne Duncan, released a statement on schools’ legal responsibilities to provide for disabled students when it comes to athletics. Schools are required to either allow disabled students to participate with their peers or else provide participation opportunities through adapted programs. As sports law continues to develop, it provides an opportunity for those interested in a variety of both legal and athletics studies to find the places where these two areas intersect. There are plenty of situations requiring legal advice to keep the international delight with sports moving along in a fair and equitable way. Sports lawyers and others serving the athletics industry are key to making it...

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Could Pokemon Go Cause You to Break the Law?

Posted on Jul 26, 2016 in Blog Entry: Spinning the Law

Pokemon Go is one of the first augmented reality games to gain national notoriety and be played avidly by the general public. Pokemon Go lays down its own content over a Google Maps program. This allows the players to walk around through the Pokemon Go map on their phone while walking around in the real world. In the Pokemon world, Pokemon wander around, and players need to find and capture them. There are also hotspots where players can acquire items or where Pokemon are more likely to be found. There are also gyms where players can take their Pokemon to fight. All of these reflect locations in the physical world from bus stops to coffee shops to churches. While the game has gotten lots of players out of the house and walking around their neighborhoods, the popularity of an augmented reality game like Pokemon Go raises both safety and legal issues. Police officers across the country have been issuing statements reminding people to exercise their common sense while playing the game. Don’t run into people on the sidewalk. Remember that traffic exists in the real world. Do not operate any kind of vehicle or bicycle while using the app. It’s also important to note that the game does not discriminate between public and private property when it places Pokemon and other game objects. It is important that the users and parents of young users are aware that this boundary very much exists in the real and legal world. Pokemon have been placed in businesses, churches, and private residences. “Catching Pokemon” is not a reason to enter into private spaces without permission. It is especially important to make sure children understand this boundary. Police are concerned about potential conflict or injuries from being mistaken for an intruder, as well as the repeated trespassing reports. It is also important to note that the user “assumes liability related to any property damage, personal injury or death,” including violations of laws while playing the game. This is included in the agreement users sign to begin playing the game. Nintendo, etc. are not liable for actions users take during the game. Another important reason to be aware during the game is that users can add lures to the game. Users have been known to set a lure, attract other users, and then rob...

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The Future of 3D Printing, Intellectual Property, and Their Intersection With The Law

Posted on Jun 7, 2016 in Blog Entry: Spinning the Law

The Future of 3D Printing, Intellectual Property, and Their Intersection With The Law

3D printing technology is in a fledgling state, though it has already raised many ethical and moral dilemmas. What can you print with a 3D printer? Guns? Illicit drugs? Can you print anything? Also, who controls the designs for 3D printed content? Who should own those and distribute them? These are all things that the law can answer, given time. Unfortunately, this makes answering questions about the future of 3D printing, intellectual property, and their intersection with the law difficult to hypothesize. What will the future of 3D printing laws will be, based on the current landscape? A few brave souls have attempted to answer some of these questions. In a recent YouTube video on PBS Idea Channel, host Mike Rugnetta spoke with Michael Weinburg, General Counsel and head of litigation at Shapeways, a 3D printing company. During the interview, the two spoke about the various issues concerning 3D printing technology and implementation, especially as they intersect with intellectual property and laws. 3D Printing Community Weinburg notes that the 3D printing community is currently comprised of the following groups of people: The makers, who come up with ideas and like the challenge of design. They are engineering-oriented people. Designers, who have had an awesome idea for a thing and want to use 3D printing technology as a means to create their vision. Outside of these two large groups, there are also smaller cliques like educators (who aim to use 3D printing in the classroom as an engaging way to teach science, engineering, and math), and lawyers, who are concerned with the future of 3D printing legislation and regulation. Copyright Distinction: Functional vs. Non-Functional The current state of 3D printing laws revolves around copyright violations and patent infringements. When determining copyright violations for 3D printed objects, the first question one must ask is: is this object functional or non-functional? A functional object serves a purpose (like a door knob or a part of your car’s engine), while a non-functional object might be a piece of art. Functional objects are categorically not subject to copyright laws, while non-functional objects can be copyrighted. That said, any object (even a functional object) can be protected by a patent. Embrace 3D Printing! In defense of embracing 3D printing technology on a widespread scale, Weinburg explains the process that the music industry used to approach MP3s when they first hit the market. This faulty strategy, he explains, caused the music industry to alienate many of their customers and eventually resulted in giving in to their demands: first, they sued all of their customers for downloading MP3s, then they put on digital locks to their music (which were easily broken), and then they finally embraced MP3 technology and sought to serve the market that obviously exists for digital music. This is important for the future of 3D printing design and law: people will find a way...

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