August 12, 2012

State Advocacy Strategies: The New York Story

Included below are my introductory remarks delivered at the Annual Meeting of the American Association of Law Libraries on July 23, 2012 as part Program E-1 State Advocacy Strategies: Learning to Connect, Grow and Survive. The material below includes only my introductory remarks and a series of slides (see link below) not included as AALL handouts. See added explanation below.

David Badertscher

INTRODUCTORY REMARKS.
My role is to discuss briefly library advocacy and strategies with a primary focus on those trial court libraries included within the New York State Unified Court System which have been formally designated as Public Access Law Libraries. When first approached about making this presentation I contacted some colleagues still working in the System for their recommendations as to how I should best proceed. All agreed that in view of the complexity of the New York Court structure I should first provide some historical context to help clarify issues mentioned in the ensuing discussion. I do this by first presenting a quick overview using a historic timeline related primarily to court libraries before continuing with a discussion of advocacy issues and ending with some general observations all incorporated into a series of power point slides prepared specifically for this purpose.

Since these slides were not included in my electronic handouts sent to American Association of Law Libraries and are therefore not otherwise accessible as part of my formal presentation I am posting them here after consultation with AALL personnel at the Annual Meeting. For my complete presentation, including commentaries you will neet to contact the American Association of Law Libraries.at 312-939-4764 or aallhq@aall.org.

Links to Slides:

NY Slide Presentation as PDF

NY Slide Presentation as Powerpoint

March 26, 2011

The Jury Expert Has a New Look

The people at The Jury Expert are excited about moving to a new platrorm, Wordpress, where they can incorporate a new look and possibly some new features as well. Below is their e-mail announcing the change and providing links so you can see for yourselves. Take a look:

The e-mail:

We are too excited to wait until our next issue to get this announcement out! The Jury Expert has moved to a WordPress platform and we are ready for our close-up. We invite you to visit and see how much easier it is to find what you're looking for on our new site. One of the benefits of our new platform is we can use categories (see the right-hand side of the webpage for the category drop-down menu) to help you find what you need.

Want witness preparation? Visit our witness preparation category and find everything we've published from basic how-to's, to the implications of the Cendant ruling, or to preparing tough witnesses like narcissists. http://www.thejuryexpert.com/category/witness-preparation/

Want voir dire? We have everything in our voir dire category from best practices for paper and pencil organization to cognitive organization strategies or to the new iPad apps. http://www.thejuryexpert.com/category/voire-dire-and-jury-selection/

Want technology? Visit our technology and visual evidence categories for everything from forensic animations to the iPad to RSS to persuasive ways you can use visuals to communicate your message. http://www.thejuryexpert.com/category/technology/ or http://www.thejuryexpert.com/category/visual-evidence/

Want the latest on bias, gender, race, the internet? You know where to go. We have categories on all those topics and more. http://www.thejuryexpert.com/category/bias/ or http://www.thejuryexpert.com/category/gender/ or http://www.thejuryexpert.com/category/internet-social-media/

Visit us now at http://www.thejuryexpert.com/. We are still sprucing things up and uploading images but we are 95% of the way done and wanted to share it with you now. We'll have to bring the comments over bit by bit so don't worry, they will definitely be back but they are not in place now.

Visit. Read. Admire the work of our designer and programmer. And marvel at the fact that with The Jury Expert, you can improve your day-to-day practice without increasing your overhead. It's the gift of litigation advocacy from the American Society of Trial Consultants to all of you.

We publish our March/April issue the end of this month with pieces on the 'nerd' defense that made so many headlines in late February (i.e., put glasses on your criminal defendant and the jury will acquit); ADD jurors; questions about Powerpoint presentations in an article called "Beyond Bulletpoints"; new ideas to address social media's presence in the deliberation room; two new pieces on voir dire; online jury research; and a new video review of dueling iPad jury selection apps. You won't want to miss it!

In the meantime, bookmark our new address (http://www.thejuryexpert.com) and come visit!

March 26, 2011

Book Review: The Fears Within: Spies, Commies, and American Democracy on Trial

TITLE: The Fear Within
SUBTITLE: Spies, Commies, and American Democracy on Trial
AUTHOR: Scott Martelle
PUBLICATION DATE: May 2011
PUBLISHER: Rutgers University Press
PAGE COUNT: 320 pp.
ISBN: 978-0-8135-4938-5 (Cloth)
PRICE: $26.95 (Cloth)

The author is a freelance journalist and writer with expertise in American history. Martelle details the 1948 arrest and trial of twelve members of the Communist Party USA who were accused of espionage and conspiracy in violation of the Smith Act, which prohibited inciting acts of force and violence against the government. He carefully describes the primary defense argument, namely, that these twelve men did nothing more than teach a doctrine and therefore the government’s case amounts to political repression. The author underscores the defense argument that the Smith Act’s constitutionality is suspect because of its inherent conflict with the First Amendment, because the allegations against the men involved no acts and therefore did not constitute a clear and present danger to the government. The Smith Act was hastily crafted during the pressure of wartime, the author notes, and was not intended to be used against those exercising their First Amendment right of free speech. Nevertheless, eleven of the men were convicted, and the author concludes that the judge’s charge to the jury was the deciding factor, as guilt rode on the defendants’ intent to overthrow the government and their use of words as a rule for action. Aimed at an academic audience and well-documented, the book is replete with analysis of the legal and political issues involved, and is thus recommended for academic, law, and larger public libraries.

Philip Y. Blue, New York State Supreme Court Criminal Branch Law Library, First Judicial District, New York, New York


March 8, 2011

Gangs in a New Jersey County


The following is a link to a a listing of towns in Union County New Jersey and the number of gangs reported to be established in each town, even many of the smaller ones. One reason for publishing this post is that we suspect this particular article may point to a very small representation of a much larger problem throughout the nation that should concern us all.

http://www.nj.com/news/index.ssf/2011/01/nj_gangs_have_presence_in_all.html?appSession=82694619262727

David Badertsher

March 8, 2011

Book Review: The Eichmann Trial

TITLE: The Eichmann Trial
AUTHOR: Deborah E. Lipstadt
PUBLICATION DATE: March 2011
PUBLISHER: Schocken Books, a division of Random House, Inc.
PAGE COUNT: 272 pp.
ISBN: 978-0-8052-4260-7
PRICE: $23.95

The author is a professor of Jewish Studies at Emory University and has written extensively about the Holocaust. In her new work, she details the Israeli capture and trial of fugitive Nazi war criminal Adolf Eichmann fifteen years after his escape from U.S. custody at the end of World War II. Lipstadt carefully shows how Attorney General Gideon Hausner called witness after witness who had directly observed the most brutal and murderous aspects of Eichmann's evil objectives and were thus able to bring the tragedy alive. She concludes the verdict was a forgone conclusion, but the sentencing was more complicated, and thus followed a contentious debate about the death penalty in a society that preaches love and compassion. Arguments for and against Eichmann's execution are described in detail, with the author noting the Court's referral of the matter to the Prime Minister and Israeli Cabinet for ultimate resolution. Aimed at an academic audience, the book is replete with references to primary source material and thus constitutes an authoritative analysis of the historical and legal issues involved in a trial of international significance. Highly recommended for students, scholars, and researchers analyzing actions and motives of war crimes perpetrators and their victims during periods of political conflict and courtroom confrontation.

Philip Y. Blue, New York State Supreme Court Criminal Branch Law Library, First Judicial District, New York, New York

February 1, 2011

AALL: Network Neutrality Update - January 2011

David Badertscher

Network Neutrality (Net neutrality) is a principle that expresses the concept that all Internet traffic must be treated equally regardless of possible economic and other incentives to do otherwise. The American Association of Law Libraries (AALL) strongly supports Net neutrality and is a member of Save the Internet Coalition and the Open Internet, both working to bring together individuals, non-profit organizations, businesses, and bloggers who strongly support this priciple.

As part of its leadership role in raising and clarifying issues related to Network Neutrality, AALL prepared a Newwork Neutrality Issue Brief, published in December 2008. Since that time there has been sufficient debate, discussion, rule changes (both actual and proposed), and litigation surrounding this issue to make it necessary for AALL to update its 2008 Network Neutrality Issue Brief, resulting the 2011 AALL Network Neturalty Issue Brief linked to below.

The updated AALL Network Neutrality Issue Brief (January 2011), was prepared by Ryan Saltz, AALL Government Relations Committee (2008-2010) and Ryan Harrington, Reference Library at Yale Law School under the auspices of the Government Relations Office and the Government Relations Committee, both of AALL. This update contains important current information and commentary on Network Neutrality and is recommended reading by all who have any involvement, no matter how minor, in internet related issues.

AALL Network Neutrality Issue Brief 2011 Update

For more information on the background of Network Neutrality see the posting "Network Neutrality: Some Background and Perspectives", posted August 20, 2010 on this blog.


February 1, 2011

Internet Society Statement on Egypt's Internet Shutdown

Source: The Internet Society Newsletter Volume 10 Number 1 January 2011.

On 28 January, Lynn St.Amour President and CEO, and the Internet Society Board of Trustees issued a statement on the Egypt's Internet shutdown:

"We are following the current events in Egypt with concern as it appears that all incoming and outgoing Internet traffic has been disrupted. The Internet Society believes that the Internet is a global medium that fundamentally supports opportunity, empowerment, knowledge, growth, and freedom and that these values should never be taken away from individuals.

"The Internet Society considers this recent action by the Egyptian government to block Internet traffic to be an inappropriate response to a political crisis. It is a very serious decision for a government to block all Internet access in its country, and a serious intrusion into its citizens' basic rights to communicate. If the blockage continues, it will have a very detrimental impact on Egypt's economy and society. Ultimately, the Egyptian people and nation are the ones that will suffer, while the rest of the world will be worse off with the loss of Egyptian voices on the net"

For the complete statement, see:

http://isoc.org/wp/newsletter/?p=3091&utm_source=nl&utm_medium=txt&utm_campaign=201101

For a Q&A on the shutdown, its impact, and implications see:

http://isoc.org/wp/newsletter/?p=3100&utm_source=nl&utm_medium=txt&utm_campaign=201101

November 19, 2010

White House: Middle Class Task Force - Equal Access to Justice

Richard Zorza has reminded us that the White House is conducting an event on access to Justice today with Vice President Biden as one of the featured speakers. The event started at 10:30AM. You should be able to listen in on the proceedings by clicking here. For those of us concerned with equal access to legal services, including legal information, this is an important event.

November 15, 2010

Two Book Reviews - One Author - Ron Arons

Until a few weeks ago before receiving a telephone call I had never heard of Ron Arons. During that call Mr. Arons explained that he had been following postings on this blog and wondered if I would be interested in reviewing two of his books. After some discussion I agreed to either review them myself or ask some of my colleagues to review them for posting on the Criminal Law Library blog, with the understanding that the books provided for reviewing would be added to the library collection of the New York Supreme Court Criminal Term Library of New York County and not given to me personally.

We are fortunate that two colleagues, both experienced book reviewers, were available and eager to take on these assignments. Pepper Hedden who has worked with me on special projects and reviews materials regularly for the Law Library Association of Greater New York (LLAGNY) will graduate December 2010 from St. John’s University with an MLS degree. She is a reference librarian in the law library of the New York County District Attorney’s office and is reviewing The Jews of Sing Sing the first of Mr. Arons' books listed below. Ted Pollack who is reviewing Wanted! U.S. Criminal Records: Sources & Research Methodology, also by Mr. Arons, is the Senior Law Librarian at the New York County Public Access Law Library. Ted continues to review legal materials for both the New York Law Journal and the Library Journal.

Since I am not writing any of the reviews below I will only say that as a law librarian who is always looking for useful sources of criminal records, I have already found Mr. Arons book Wanted! U.S. Criminal Records: Sources & Research Methodology useful in identifying criminal records in other jurisdictions. Unfortunately I have not yet found time to read The Jews of Sing Sing--but I will. Now on to the book reviews:
David Badertscher

Pepper Hedden's review:

The Jews of Sing Sing: Gotham Gangsters and Gonuvin
By Ron Arons
The Jews of Sing Sing proves the adage to not judge a book by its cover – or its title. This book is a lively and crystalline page-turner with something for everyone to enjoy.

Like many, Ron Arons paid little attention to the family stories he had heard over his lifetime until he found himself parentless. While disposing of the belongings of his “packrat parents”, he discovered a family tree his father had started and caught the “genealogy bug”. Having no living relatives of a proper age to ask for stories, the author began his genealogical expedition with the U.S. Census records. What he discovered raised perplexing questions. His great-grandfather had claimed to be born in three different locations. His great-grandmother’s death certificate listed a surviving husband with a name different from that of his great-grandfather. And his great-grandfather had served time in Sing Sing! He didn’t remember hearing such a story and the idea of a Jewish criminal flew in the face of his Jewish teachings to abide to a high moral value system.

Ron Arons is an award-winning researcher who invites us on his odyssey of discovery and engagingly reports the results. Over more than ten years, as he pieced together his great grandfather’ s story, he found a surprising number of other Jewish criminals from the early New York City streets especially the Lower East Side, also known as Five Points. In individual chapters, the reader is entertained with colorful descriptions of some of these Jewish criminals who had called Sing Sing “home” for a time from the mid-nineteenth century through the mid-twentieth century.

Throughout the book, the author’s meticulous research in census records, prison records, newspapers, archives, books, police records, court transcripts and personal interviews is impressive. Where pieces about the underworld characters do not fit nicely together, Ron Arons suggests possible answers based on other research. The details are exquisite. Locations, names and facts are exact. The storytelling is infectious.

For instance, we meet Monk Eastman, “the first true Jewish gangster” whose “presence and influence lasted for decades”. In one recounting, Monk and his companions were unaware they were being watched by undercover detectives as they “pushed revolvers in the youth’s face and attempted to steal his stash.” One detective “like an Olympic hurdler” cleared the leg Eastman put out to trip him as he pursued the companion “in front of Lewis & Conger, a crockery and home furnishings store located at 130 W. 42nd Street.” What follows is literally a blow-by-blow account of how the officer used the companion as a shield to block the gun shots hurled by Monk until Monk’s revolver was empty and he threw it through the Lewis & Conger store window to later be used as evidence. There are dozens of other delightful stories.

We learn that Bennet’s Hotel once existed at 7th Avenue and 41st Street and a Worker’s Party of America office was located at 110 West 14th Street. Did you know that the phrase “keeping tabs” stems from card players who hired “counters” with tablets called “tabs” to count cards?

The Jews of Sing Sing tells the story of crime and vice as the decades unfold. Gambling at times was almost entirely in the hands of Jewish gangs. It seems that in 1910, 16% of the Sing Sing population was Jewish. Many were immigrants who disguised their identity by using aliases, as shown on serial arrest records or, as was common, to Americanize their names to hide their heritage. For instance, Bugsy Siegel’s true name was Benjamin Siegelbaum.

Along the way, we briefly encounter more recognizable figures such as Clarence Darrow, J. Edgar Hoover, and Oliver Wendell Holmes. On the flip side is the story of the cozy relations between the gangsters and Tamany Hall politicians, police, unions and the rich and famous as they collaborate in corruption, graft, extortion, and prostitution as well as those determined to root out crime. A successful, and corrupt, wealthy Mr. Hertz bribed a graft investigator to resign from the police force. . .and he did. Louis Shomberg, ostensibly a prominent businessman is thought to be behind crime networks in New York for decades. He was so successful is covering his tracks that in the 1960’s federal prosecutors just gave up trying convict and deport him in his advancing years.

An unusual story in the criminal context is that of Benjamin Gitlow, one of the founders of the American communist movement in the early 20th century who was charged under new sedition laws. Later he had a change of heart and testified before the House Committee on Un-American Activities and cooperated with the FBI in rooting out communism in America.

Researchers will appreciate the efforts Aron’s took to accurately detail the lives of the gangsters he profiled and the circumstances in which they lived. Historians, or lovers of New York history, will delight in description of the events in various decades and the city that knew them. New Yorkers and those familiar with the New York streets will be making mental pictures of City addresses and imagining the buildings and business that once occupied it. For fans of crime novels, this book is a romp. The Jews of Sing Sing will appeal to and delight many readers whatever their interests.


Pepper Hedden will graduate December 2010 from St. John’s University with an MLS degree and is a reference librarian in the law library of the New York County District Attorney’s office.
____________________

Ted Pollack's review:

Title: Wanted! U.S. Criminal Records: Sources & Research Methodology

Author: Ron Arons
Publisher: Criminal Research Press

Pages: 365

Wanted! U.S. Criminal Records” is a volume dedicated to assisting in locating current and archival material related to individuals with a criminal history. Ron Arons became interested in this area while researching a relative’s criminal past. This volume compiles a comprehensive listing of libraries, archives, and other physical locations as well as online resources that are very useful in locating criminal records. The author acknowledges that the method used to track records for and individual often varies from case to case. The apparent value in this work is the large number of resources compiled. The book is organized and covers each of the fifty states as well as the District of Columbia and the federal system. For individuals performing research in this area this book will be a highly useful tool. Nonetheless, the publisher might consider offering a digitized version with active links to websites to save users the difficulty of entering long web addresses to access online records locations. This book is recommended for special libraries, professional researchers, and individuals interested in performing research involving relatives with shady pasts.

Ted Pollack, Sr. Law Librarian, New York County Public Access Law Library

November 15, 2010

The WWW at 20

November 12. 2010 is the twentieth anniversary of a research proposal that is remaking our world. As Ben Zimmer tells it in his November 14 On Language column, WWW: The 20th Anniversary of a Research Proposal That Remande the Language in the New York Times, Tim Berners-Lee, a British software programmer working at CERN outside Geneva, was attempting to "sketch out a global system for sharing information over the Internet. After submitting a document in 1989 on the topic which generated little interest, Berners-Lee tried again in 1990, collaborating with a Belgian engineer Robert Cailliau. It was this paper, WorldWideWeb: Proposal for a Hyper Text Project, submitted on November 12, 2010, that is the true basis of the World Wide Web as we know of it today. There are a number of articles, papers, and media events commemorating this seminal event, but for a quick read that is also informative, Mr. Zimmer's colum in the Sunday November 14, 2010 New York Times comes highly recommended.

David Badertscher

October 22, 2010

ABA Report: Recommendations for Improving Judicial Disqualification Practices and Procedures Among the States

ABA Standing Committee on Judicial Independence (SCJI)

In an October 20, 2010 e-mail discussing the Report, William K Weisenberg, Chair, ABA Standing Committee on Judicial Independence writes:

"On behalf of the Standing Committee on Judicial Independence (SCJI), I am pleased to present for your consideration recommendations and a report that address one of the most significant issues impacting the public’s trust and confidence in a fair, impartial and independent judiciary – the disqualification of a judge when the impartiality of the judge might reasonably be questioned either through specific conduct or the appearance of impropriety. In July, 2010, an updated draft of the recommendations and report was distributed widely for review by ABA entities and outside groups. The Committee held a public forum at the 2010 ABA Annual Meeting on Saturday, August 7, 2010, in order to encourage audience comments and suggestions on the revised proposal. Based upon the comments and suggestions received both at the forum and thereafter, SCJI revised the recommendations and report. They will be submitted to the House of Delegates for consideration at the 2011 Midyear Meeting. SCJI feels strongly that it has met its objective of helping states improve their judicial disqualification practices and procedures by providing to state supreme courts a menu of options to be considered as states move forward with adoption of standards and rules, while promoting public confidence in the state courts...."

FROM THE INTRODUCTION:

In recent years, judicial disqualification has emerged as an important policy issue in several states and an important focus of discussion and debate on ways to improve both the reality – and the public perception – of the fairness and impartiality of our court system. That focus has been sharpened because of intense public scrutiny and criticism in several highly publicized cases of refusals by judges to recuse themselves in circumstances where, as the default standard articulated in the Model Code of Judicial Conduct puts it, "the judge‟s impartiality might reasonably be questioned"'

.The ABA has traditionally taken the leading role in providing guidance to the States on matters of judicial ethics and judicial conduct.4 Since 2007, the ABA Standing Committee on Judicial Independence ('SCJI' or the “Committee”) has been working on a project to survey disqualification rules and practices in state courts around the country, to identify problems and uncertainties that arise under existing regimes, and, if and as appropriate, to propose reforms. The Judicial Disqualification Project ('JDP') has conducted research, solicited comments on particular ideas and proposals (primarily within the ABA but also from certain outside entities with a strong interest in the area, such as the Conference of Chief Justices), and gradually refined the thinking of the Committee's membership on these issues.

It bears mention here that the focus of the JDP has been on the State judiciaries and not the federal. Notwithstanding that focus, this Report benefits from the guidance provided by federal case law, some of which is cited herein. Indeed, much of the law on judicial disqualification as it has developed in this country, and the concomitant guidance to the judiciary as a whole and the practicing bar, has been the product of federal decisions. Nevertheless, it should be emphasized that the transformation of the landscape described below has been occasioned by dramatic changes in judicial elections and judicial campaign finance, neither of which has any relevance whatever to the federal judiciary...."

RECOMMENDATIONS FOR IMPROVING JUDICIAL DISQUALIFICATION PRACTICES AND PROCEDURES AMONG THE STATES


October 18, 2010

Are Federal Judges Cutting Corners to Hire Clerks Early?

The system for placing them with federal judges is breaking down.

Karen Sloan National Law Journal

October 18, 2010

Are the Wild West days of federal clerk hiring back? That's what some law school administrators and judges fear. They worry that the voluntary system whereby federal judges wait until September of the 3L year to hire clerks is teetering. Judges are choosing clerks earlier in the year and are being inundated with applications as the legal job market narrows. And a trend toward hiring the already graduated means fewer positions are available for fresh law graduates.

Complete National Law Journal article.

See also: U.S. Federal Judges Law Clerk Hiring Plan 2010

October 18, 2010

U.S. Supreme Court - Recusal

From the Brennan Center for Justice, Fair Courts E-Lert October 15, 2010:

Justice Elena Kagan's decision to recuse herself in 25 of the cases the U.S. Supreme Court has agreed to hear continues to inspire discussion about judicial disqualification. A New York Times editorial praises Justice Kagan's decision, but questions the credibility of a judicial system that relies on voluntary recusal. The editorial recounts two recent examples - Justice Antonin Scalia's decision not to disqualify himself from a case involving then-Vice President Cheney, with whom the Justice socialized, and Caperton v. Massey, the 2009 landmark recusal case - in which unclear recusal guidelines cast doubt on judicial impartiality. Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, is currently pushing legislation to allow retired Supreme Court justices to return to the bench if a current justice must recuse, but the Times editorial contends a more vigorous disqualification process is necessary. Meanwhile, another Times editorial argues that Justice Clarence Thomas' wife should be required to disclose donors to the conservative nonprofit organization she leads so that Justice Thomas can "comply with a fundamental ethical and legal requirement to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." A separate Times article reports that Mrs. Thomas - who recently appeared at a large Tea Party convention - is playing "the most partisan role ever for a spouse of a justice on the nation's highest court."

Justice Thomas and His Wife, New York Times, October 12, 2010; Activism of Thomas's Wife Could Raise Judicial Issues, New York Times, Jackie Calmes, October 8, 2010; Recusals and the Court, New York Times, October 7, 2010.

October 13, 2010

Around the Blawgsphere

October 13, 2010.

Argument recap: Court doubts that failure to suppress confession is prejudicial in felony murder case
posted by James Bickford at SCOTUSblog -
On Tuesday, the Court heard oral argument in the case of *Premo v. Moore*.

Overcriminalization 2.0: Developing Consensus Solutions posted by White Collar Crime Prof Blogger at White Collar Crime Prof Blog
The Journal of Law, Economics & Policy at the George Mason University School of Law will host its annual symposium on October 21, 2010, in partnership with the Law & Economics Center at George Mason Universi...

Two or Three Myths About Substantive Due Process

posted by Timothy Sandefur, guest-blogging at The Volokh Conspiracy
(Timothy Sandefur, guest-blogging) When talking about “substantive due process,” as I’ve been doing, one must address a number of myths about that theory that, sadly, are so common

Costs of capital punishment getting the spotlight in Connecticut case
posted by Doug B. at Sentencing Law and Policy -
As detailed in this local article, which is headlined "Steven Hayes Defense Outlines High Cost Of Putting Someone To Death," the significant economic costs of capital punishment has moved from policy debate ...


Mapping Your Return to Useful Websites
posted by admin at Legal Talk Network -
Internet search is only half of the equation. Many times, you simply want to return to a site you had previously found. Managing bookmarks and favorites has long been a less-than-satisfying experience. Why...

September 29, 2010

Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency

A significant note from the Duke Law Journal by Joanna Huang with the above title has been posted today September 29 on the Sentencing Law and Policy blog According to Ms. Huang, "...in 1987 the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the Federal Sentencing Guidelines." She goes on to observe that in 2005 trust was restored in the judiciary when United States v. Booker made the Sentencing Guidelines advisory; and that, although Booker provides for increase in judicial discretion, judges are still unable to correct sentences imposed during the intervening eighteen years because Booker does not apply retroactively.

For more, we recommend that you go to the Sentencing Law and Policy blog

NOTE:

Readers interested in this topic may also be interested in Final Report on the Impact of United States v. Booker on Federal Sentencing, United States Sentencing Comission, March 2006.

September 28, 2010

From the Brennan Center: The Federal Judiciary

.Following up on our postiing about U.S. Supreme Court Associate Justice Stephen Bryer, we wanted to share with you the following excerpts from news and commentary sent to us by the Brennan Center for Justice at the New York University Law School

September 24, 2010.

1.. On Thursday, the Senate Judiciary Committee again voted to approve four of President Obama's nominees for federal judgeships. Goodwin Liu, a Berkeley law professor for the Ninth U.S. Circuit Court of Appeals, Louis Butler Jr., a former Wisconsin Supreme Court Justice, U.S. Magistrate Judge Edward Chen of California, and lawyer John McConnell Jr. of Rhode Island - all of whom had been previously approved by the Senate panel but never received a final vote on the Senate floor - were approved along party lines. The Blog of Legal Times says the vote indicates a partisan showdown in the weeks before the heated mid-term elections. Two opposing editorials illustrate how divisive the issue is: a New York Times editorial recently blasted "An Extreme Judicial Blockade" by Senate Republicans while a Washington Times editorial stated that a "GOP Senate [is] needed to block bad judges."

David Ingram, Democrats Push Forward On Goodwin Liu, Other Judge Nominees, The Blog Of Legal Times, September 23, 2010; An Extreme Judicial Blockade, The New York Times, September 22, 2010; Editorial: GOP Senate Needed To Block Bad Judges, Washington Times, September 15, 2010.


2.. "These delays are excessive . . . . The timeliness of information enhances its value. If un-elected administrators can impose an arbitrary 10-day waiting period, what's to stop them from deciding 30 days or three years might be even better?" So says an editorial in the Las Vegas Review-Journal, which decries the difficult and slow process of obtaining judicial disclosure statements. The topic of judges' disclosures of their financial holdings - and whether those holdings should disqualify judges from ruling on specific cases - received national attention earlier this year after the public discovered that the federal judge tasked with ruling on the Obama administration's deepwater drilling moratorium held shares of Exxon Mobil. According to the Associated Press, a routine disclosure statement from the judge, Martin Feldman, revealing his oil industry stock ownership, would have signaled a potential conflict of interest in the drilling case - but wasn't available because "Judges' disclosures [are] hard to get." The article juxtaposes judicial disclosure statements with those filed by legislators and concludes that while the public can read Senators' and House members' statements from a computer, concerned citizens should "be prepared to wait" to see a federal judge's disclosure statement because it can take two weeks for such a report to be provided, the reports are not posted on the judiciary's website, and judges are notified when someone asks for a copy.

Mark Sherman, Inside Washington: Judges' Disclosures Hard To Get, Associated Press, September 20, 2010; Editorial: Waiting Period, Las Vegas Review-Journal, September 22, 2010.


September 23, 2010

CLLB Information Security Newsletter

Volume 3 Number 9 September 2010.

September 2010

Detecting and Avoiding Fake Anti-Virus Software

From the Desk of David Badertscher

Your Computer Is Infected with Malware!

You may be familiar with this or similar messages appearing on a website, urging you to take action purportedly designed to clean your allegedly infected computer. Unfortunately, these messages are often scams that attempt to install malicious software (malware) onto your computer. Such software is referred to as rogue (fake) anti-virus malware, and the incidents are increasing. Last year, the FBI reported an estimated loss to victims in excess of $150 million from this type of scam[1][1].

How can my system get infected?

These types of scams can be perpetrated in a number of ways, including via website pop-up messages, web banner advertisements, spam and posting on social networking sites. Scams are also appearing via the use of “tweeting.” The rogue software scam generally uses social engineering to make the user believe his or her machine is infected and that by taking action (clicking on the link provided) the machine will be cleaned. If you click on the malicious link, you may be downloading malware onto your machine. The names of the fake programs sound legitimate, and often, in a further attempt to make the malware appear legitimate, the programs may prompt you to pay for an annual subscription to the service.

Some varieties of rogue anti-virus programs will also get installed on your machine without any interaction by you: your machine could be compromised just by you visiting a website with a malicious ad or code and you wouldn’t know.

What is the impact from rogue anti-virus software?

Rogue anti-virus software might perform many activities, including installing files to monitor your computer use, steal credentials, install backdoor programs, and add your computer to a botnet. The installation of malware could result in a high-jacked browser (i.e., the browser navigates to sites you did not intend), the appearance of new or unexpected toolbars or icons and sluggish system performance. Additionally, another concern related to rogue anti-virus software is the false sense of security you may have, erroneously believing your machine is protected by anti-virus software when in fact it is not.

What can I do to protect my computer?

Applying computer security best practices will help protect your machine and minimize any potential impacts.

1. Don’t click on pop-up ads that advertise anti-virus or anti-spyware programs. If you are interested in a security product, don’t try to access it through a pop-up ad; contact the retailer directly through its homepage, retail outlet or other legitimate contact methods.

2. Don’t download software from unknown sources. Some free software applications may come bundled with other programs, including malware.

3. Use and regularly update firewalls, anti-virus, and anti-spyware programs. Keep these programs updated regularly. Use the auto-update feature if available.

4. Patch operating systems, browsers, and other software programs. Keep your system and programs updated and patched so that your computer will not be exposed to known vulnerabilities and attacks.

5. Regularly scan and clean your computer. Scan your computer with your anti-spyware once a week.

6. Back up your critical files. In the event that your machine becomes infected, having backups of your important files will facilitate recovery.

NOTE: Regarding the above recommendations, many organizations have formal processes that automatically update and patch appropriate software, scan computers and perform file back-ups. In these cases, no end user action is necessary.

For more information, please visit:

Partial Listing of Rogue Security Software: http://en.wikipedia.org/wiki/Rogue_software

Free Security Checks: www.staysafeonline.info/content/free-security-check-ups

Malware: www.onguardonline.gov/topics/malware.aspx

Spyware: www.onguardonline.gov/topics/spyware.aspx

For more monthly cyber security newsletter tips visit:
www.msisac.org/awareness/news/

The above information is from tips provided by the Multi-State Information and Analysis Center (MS-ISAC). To learn more about MS-ISAC go to http://www.msisac.org/ . This information is intended to increase the security awareness of an organization’s end users and to help them behave in a more secure manner within their work environment. While some of the tips may relate to maintaining a home computer, the increased awareness is intended to help improve the organization’s overall cyber security posture

MORE NEWS AND INFORMATION:


The Data Liberation Movement
By Rob May
TechNewsWorld
09/17/10 5:00 AM PT

Despite the advanced portability of data, the world's largest cloud computing vendors are fighting to lock their customers within their proprietary formats. But it does not need to be this way. Data liberation is a movement that is gaining momentum among enterprises and cloud vendors alike. These progressive businesses and consumers desire to control their data regardless of its location.

http://www.technewsworld.com/story/The-Data-Liberation-Movement-70844.html


Database Security Survey by Oracle: Budget is Top Concern of Administrators
By Brian Prince on 2010-09-16

Database administrators have a busy job keeping up with the mountains of data being created and managed by enterprises every day. Unfortunately, security can sometimes get the short end of the stick on the list of IT priorities. In its annual survey, the Independent Oracle Users Group discovered many of the issues that database professionals confronted in 2010 are virtually the same as the issues they tackled in 2009. The survey, conducted by Unisphere Research, polled 430 data managers and IT professionals in the user group. The report found a numbers of problems in how databases are managed, including a lack of monitoring, encryption and user management. These issues impacted database environments both big and small. However, the good news is that the percentage of respondents whose IT security spending went up was greater in 2010 than in past years. So just where should enterprises spend their security money when it comes to databases? The answer is that help is needed in several areas. Here, eWEEK takes a look at what those areas are and how IT managers can deal with these issues.

http://www.eweek.com/c/a/Database/Database-Security-Budget-Top-Admins-Concerns-Oracle-User-Survey-Says-786379/?kc=EWWHNEMNL09212010STR5


Defuse the Data Breach Time Bomb

By Linda McGlasson. Agency Insider Blog of Banking Information Security, September 20, 2010.

It's the hidden data breach threat to which everyone has access, and it is probably very near your own office.
I'm talking about the ubiquitous printer, copier, and fax machine that everyone uses. It's also a ticking time bomb. Last week, the Federal Deposit Insurance Corporation issued new guidance on stopping this risk in the FDIC Bulletin, Guidance on Mitigating Risk Posed by Information Storage on Photocopiers, Fax Machines and Pronters (FIL-56-2010), September 15, 2010.

http://blogs.bankinfosecurity.com/posts.php?postID=716&rf=2010-09-23-eb Article.

September 20, 2010

Book Review: Making Our Democracy Work, By Justice Stephen Breyer*

I often find there is little time to read all of the books I would like, or even need, to and therefore find myself resorting to book reviews. Last Sunday I read a review that to me seemd exceptional and would like to share it with you.

David Badertscher

REVIEW::

Evolving Circumstances, Enduring Values
By JEFF SHESOL
Published: September 17, 2010
A Supreme Court justice sees judges not as indifferent observers, but as partners in preserving American democracy.

An excerpt from the Review:

"...Breyer embraces, indeed relishes, complexity. Like a law professor, he proceeds mostly by inductive reasoning, offering specific examples — including some of the most contentious Supreme Court cases of recent years — to show how judges can patrol constitutional boundaries while, at the same time, giving people room to govern themselves. Here, as in his previous book, 'Active Liberty,' Breyer places emphasis on the purposes of statutes and of constitutional provisions, the real-world consequences of judicial decisions and the need to apply the Constitution’s basic values to changing circumstances."
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*As a bonus for those who are interested, here is a link to an video/audio of Supreme Court Associate Justice Stephen Breyer in conversation with Jeffrey Rosen and Pul Holdengraber on September 20, 2010 at the New York Public Library.

September 20, 2010

Should Cost be a Significant Factor in Sentencing Convicted Criminals?

Apparently the court system in Missouri thinks so. In her article, Missouri Tells Judges Cost of Sentences, publsihed in the September 18 New York Times, Monica Davey reports that "When judges here [Missouri] sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri". According to the article "legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing." Smart Sentenciing Volume 2 Number 5 August 17, 2010 A Bulletin of the Missouri Sentencing Commission includes a discussion of cost of sentencing as a variable when determining sentences. According to the Bulletin the Missouri Sentencing Commission has added data about the risk of being reincarcerated and the costs of sentences to its online application as a variable to enhance the availability of objective inform I found it somwhat surprising that "....no other state systematically provides such information to judges". On alternative for those interested in pursuing this subjct further would be to start by following a search I conducted on the National Center for State Courts website using the terms cost and incarceration. David Badertscher
September 17, 2010

About Justce John Paul Stevens

Justice John Paul Stevens’ career offers many lessons for those interested in learning about the attributes of a good judge, maintains an editorial in the July-August issue of Judicature, the journal of the American Judicature Society. As the editorial explains, Justice Stevens is someone who sets high personal standards, demanding much of himself. He personifies traits such as candor, civility, integrity, courtesy, and responsibility. In short, he is the embodiment of what has come to be known as professionalism.

The editorial also notes that he is characterized by virtually everybody as open-minded, and a
good listener, as genial and humorous, as warm and welcoming and kind, as gentle and
possessing a generousness of spirit. He is a modest, humble, and unpretentious person,
notwithstanding all that he has accomplished in life, and a man possessing empathy for those
who are less fortunate. Former clerks all portray him as a wonderful teacher and role model.

The July-August issue also contains reminiscences of Justice Stevens by three former law
clerks from different time periods, and a review of John Paul Stevens: An Independent Life.

Summary