Top State Court Nixes Lawyer’s Drunken-Driving Conviction ITop state court nixes lawyer’s drunken-driving conviction over blocked effort to consult counsel Over Blocked Effort to Consult Counsel

(Martha Neil) Arrested under suspicion of drunken driving in 2013, an Iowa family law attorney tried to consult with a criminal defense lawyer before taking a Breathalyzer test to determine his alcohol level at the Polk County Jail.

But when David Hellstern asked the arresting officer to let him speak privately over the phone with his lawyer, the officer refused. Hellstern took the Breathalyzer test, blew more than twice the legal limit and was subsequently convicted of operating while intoxicated after his motion to suppress the test was denied.

However, the Iowa Supreme Court reversed his conviction (PDF) last week. It agreed with Hellstern the arresting officer should have informed him that, while he had no right to consult privately with his lawyer by telephone, he would have been able to do so if his lawyer came to the jail in person.

The case is remanded for a new trial, but the court said the Breathalyzer test should be suppressed because of the officer’s failure to advise Hellstern of his right to consult in person with legal counsel.

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Teaching Copyright Law – Blurred Lines

(Jake Linford) “Blurred Lines,” the summer hit of 2013, is the subject of a copyright dispute. The estate of Marvin Gaye claims that the composers of the hit song (Pharrel Williams, Robin Thicke, and T.I.) appropriated the song from the Gaye hit, “Got to Give it Up.” Williams et all filed a declaratory judgment action, and moved to dismiss the Gaye family’s counterclaims alleging copyright infringement. Last month, Judge John A. Kronstadt denied a motion to dismiss. The order interests me for two reasons. Here I focus on the first.

I used the “Blurred Lines” case last year as the basis for a memo assignment on substantial similarity in my copyright class. For those of you who don’t think often about copyright law, proving infringement requires evidence of copying, which is usually inferred from 1) access to the original work and 2) substantial similarity between the original and the alleged copy. In this case, Alan Thicke said in multiple interviews that he and Pharell meant to write an homage to the Gaye song, so I let the students assume access. I tasked the students with summarizing the state of the law in the Ninth Circuit on protectable elements of musical composition, i.e., which elements in a song can be copied without triggering liability, and which elements cannot. I then asked them to opine on a likely outcome in the case. At the time, the report from a musicologist hired by the Gaye family had leaked via Hollywood reporter. There was no competing report from the Williams camp available at the time, so I invited a musicologist from across campus, Brian Gaber, to walk the students through differences in the two works of music as if he were advising Williams and his co-writers about the similiarity of the musical elements.

The students were nervous about digging into the similarities and differences in the musical composition (what the song would look like if you wrote it up in standard notation) and the sound recording (what the song sounds like). Some students expressed concern that classmates who knew something about music would perform better on the assignment than those who knew little or nothing. But I invited them to think of the assignment as an opportunity to learn about substantial similiarity in a musical context, and to develop the ability to teach themselves about a complex issue in the course of preparing for a case. This is a challenge that will face lawyers providing legal advice in any substantial similarity case. Handling substantial similiarity requires familiarizing oneself with the norms of an industry, and how common elements or scènes à faire (unprotectable stock elements) manifest in a given genre.

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Using Criminal Background Checks in the Hiring Process; Handle With Care

The Office of Legislative Research, whom I’ve praised in several posts before (here and here),recently issued a report on the consequences of a felony conviction on employment. 

Overall, it does a good job summarizing the issues when it comes to state employment.

But later on in the publication it states the following when discussing the federal restrictions on employer use of criminal background information:

Asking job applicants to indicate whether they have been convicted of a crime is permissible but Title VII of the Civil Rights Act of 1964 appears to restrict an employer’s ability to use criminal background information in the hiring process (42 USC. § 2000e, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has decided that disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (Those two groups generally have higher criminal conviction rates than do Caucasian men.)

The EEOC has ruled repeatedly that covered employers cannot simply bar felons from consideration, but must show that a conviction-based disqualification is justified by “business necessity.” The legal test requires employers to examine the (1) nature and gravity of the offense or offenses, (2) length of time since the conviction or completion of sentence, and (3) nature of the job held or sought. Under this test, employers must consider the job-relatedness of a conviction, the circumstances of the offense, and the number of offenses (EEOC Guidance 915.002, April 25, 2012:http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf).

Back in April, I discussed the EEOC’s latest guidance at length.  As a result, I think the OLR’s report has misstated the EEOC’s position and made it sound like the rules on criminal background check are set in stone at the federal level.  They are not.

criminal defense attorney goes to court to defend his clients against criminal accusations.

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Defense lawyers press for more info as probe of FBI agent linked to dismissed cases continues

(MARTHA NEIL) After news that the U.S. Attorney’s office in Washington, D.C., has agreed to dismiss 28 drug cases, including approximately a dozen that had already resulted in convictions, defense lawyers are pressing for more information.

An investigation is continuing concerning an FBI agent accused by the feds of tampering with evidence being held for trial, though he is not criminally charged. Meanwhile, defense lawyers want to know why some of the individuals whose cases are linked to the agent are being granted immediate dismissals, while others are not, the Washington Post (reg. req.) reports.

At a Monday hearing, U.S. District Judge Emmet G. Sullivan ordered the U.S. Attorney General’s office to provide daily updates on the progress of the investigation but said some defendants will have to await developments.

“The proper thing to do is to assess what happened, and then if we have to do something, we do so swiftly,” Sullivan said.

Attorney Robert Bonsib represents the agent being investigated. He declined to discuss specific allegations against his client but called some accusations “grossly overblown” and said his client is cooperating.

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Screening Applicants With Domestic Violence Criminal History

(Melanie Chaney) The National Football League’s handling of several recent high-profile domestic violence incidents involving players Ray Rice, Greg Hardy and Jonathan Dwyer has raised the national consciousness regarding how employers handle domestic violence issues. Domestic violence has been, and continues to be, a prevalent problem that creates many challenging issues for employers.  A recent Centers for Disease Control and Prevention study found that domestic violence victims lose a total of nearly 8.0 million days of paid work which is the equivalent of more than 32,000 full-time jobs as a result of the violence.  Employers have to consider issues including workplace security, whether discipline is appropriate for off-duty conduct, and handling accommodations for the victims of domestic violence.

Because of the many challenges that employers face, the natural inclination may be systematically to screen out all job applicants who have any criminal history of engaging in domestic violence, so that the agency can protect against the pernicious effects of domestic violence on the workplace.  However, employers should be extremely cautious in screening for particular types of criminal history, including when it involves domestic violence. Employers must comply with all applicable federal and state laws regarding the collection and consideration of criminal history records.

California “Ban the Box” Law

Since July 1, 2014, California state and local agencies are prohibited from making any inquiry about conviction history on the initial employment application.  This does not mean that the employer cannot inquire about convictions at all.  Rather, criminal background inquiries can only be made after the employer has established that the applicant meets the minimum qualifications of the position. This does not apply to those positions in which the agency is required by law to conduct a criminal history background check (e.g., peace officers) or to positions within a criminal justice agency.

Once minimum qualifications have been established, the employer can ask about criminalconvictions. In California, with the exception of peace officers, the agency still cannot ask about arrests not resulting in convictions.

Title VII of the Civil Rights Act of 1964

Title VII prohibits employment discrimination based on race, color, national origin, and other protected classifications. The Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII. According to the latest EEOC Guidance on the use of criminal records information, blanket criminal record exclusions may have a disparate impact on African-American and Hispanic applicants. While a policy that automatically screens out applicants with a domestic violence criminal history does not on the face of it discriminate against any protected classification, employers must avoid creating a disparate impact on any protected group.  If an applicant can establish that the policy has a disparate impact, then the employer must show the policy is job related for the position in question and consistent with business necessity.

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The Injustice of Bumpy Laws

(Adam Kolber) Whether a person has been sexually assaulted can turn on the reasonableness of a defendant’s belief that the alleged victim consented. Presumably, the more reasonably one believed consent was given, the less culpable one is for proceeding with sexual intercourse. Similarly, the more reasonably one believed consent was given, the less dangerous one is likely to be. For both these reasons, the amount of punishment a person receives should be at least in part a function of the reasonableness of his belief in consent. In my terminology, reasonableness is an input into a legal decision that likely ought to have a smooth relationship with the pertinent output: amount of punishment. As the input gradually increases, the output gradually decreases. At some point, a person’s beliefs are sufficiently reasonable that he no longer warrants any punishment (because he is not sufficiently culpable or because the costs of punishing him exceed the benefits).

In this instance, we seem to prefer smoothness in theory, but the criminal law’s treatment is in fact quite bumpy. One person deemed just reasonable enough that consent was given may have no criminal liability while a similarly-situated person who was just a bit less reasonable may be sentenced to at least the statutory minimum. Even though both defendants are virtually alike in terms of culpability and dangerousness, they are treated quite differently under our bumpy treatment of beliefs about consent: gradual changes to the reasonableness input do not affect conviction, except at a critical threshold. At that threshold, a gradual change in reasonableness has enormous effects. 

So there appears to be a deviation between our normative theories of criminal law and what the law actually does. Now, criminal law may actually be less bumpy than many other areas of the law. At sentencing, judges can smooth the relationship to some degree by giving more reasonable offenders shorter sentences than less reasonable ones. But judges are often limited by statutory minima. Such minima may have certain advantages, too, by controlling the allocation of sentencing discretion. But the value of such discretion must be weighed against the harms of deviating from our best theories of just punishment. And many retributivists are committed to never knowingly overpunishing an offender, allocations of discretion be damned.

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Intellectual Property Infringement as Vandalism (Part 1)

(Irina Manta) In addition to empirical work in intellectual property, another area that has been keeping me occupied is the intersection between IP and criminal law. A few years ago, I wrote an article entitled The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harvard Journal of Law and Technology 469 (2011), in which I explored why we have criminal sanctions for copyright and trademark infringement but not for patent violations. Earlier this year, I published a paper called The High Cost of Low Sanctions, 66 Florida Law Review 157 (2014), that examined how low sanctions can lead undesirable laws to be passed and can eventually morph into high sanctions, an analysis whose focus was partly on copyright law. I then moved on to study, in an article called Intellectual Property and the Presumption of Innocence that is forthcoming in the William & Mary Law Review next year, the constitutional dimension of intellectual property criminal cases. I argued that prosecutors should have to prove that every element of such crimes, including the jurisdictional element, has been met beyond a reasonable doubt before convictions can occur. Most recently, I turned my attention to the relationship between the criminal (and civil) sanctions in intellectual property and those that we observe in property. This project, co-authored with Robert E. Wagner, is entitled Intellectual Property Infringement as Vandalism, and I would like to take the opportunity to describe it further here.

One of the recurring questions in scholarship is whether intellectual property qualifies as property and, as a correlative matter, whether IP infringement is theft. Content owners significantly push this analogy, including in heavy-handed ads that seek to remind people not to “steal” songs or movies. Meanwhile, critics have chipped away at the theft label. They have argued that when an object is stolen, the owner is entirely deprived of it, whereas IP owners maintain integral copies of their works when infringement takes place. Unlike in the case of theft, the intellectual property owner can also continue to sell copies of said work to willing buyers, if the market will bear it. Furthermore, to the extent the owner suffers a loss at the hands of the IP infringer, that loss is difficult to calculate. Not every infringer would have bought the work had he lacked the opportunity to infringe. At the same time, nobody can say with certainty about herself—even assuming perfect honesty—which works she would have bought in a zero-infringement world because the impulse to rationalize one’s actions in this setting is strong.

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