“Number-crunching nonsense” 

1/24/13

By Suhrith Parthasarathy 

Jed Rakoff is the free-spirited federal district judge in New York who, among other notable rulings, recently sentenced Rajat Gupta to two years in prison and $5 million fine for insider trading, roughly four times less than what the federal sentencing guidelines recommend. In an interview with Fortune magazine, Rakoff underscores his distaste for what he considers inflexible guidelines and speaks about the reasons for low rates of prosecution for crimes related to the financial crisis.  

Rakoff says his preferred sentencing rule is Section 3553(a) of Title 18, a federal law, which asks the court to consider a set of factors and gives it the discretion to arrive at the final sentence, as opposed to the guidelines, which he described as “number-crunching nonsense.” The cure to disparity in sentencing among federal judges is not in the guidelines but in a robust appellate review that will deal with the outliers, says Rakoff. 

In the interview, Rakoff also says top Wall Street executives who had a role in the financial crisis  must not escape criminal liability simply because their cases are complicated, a position highlighted in a recent PBS Frontline report. According to the judge, there are two problems in prosecuting white-collar cases. First, since such prosecutions rely heavily on information, you either need a wiretap or someone to flip sides. Second, criminal law requires a show of “some kind of evil intent,” which can be a high bar. Rakoff says he is surprised that prosecutors haven’t used the concept of “reckless disregard” to pursue financial cases, instead of trying to find someone who says, “Yes, I decided today to cheat a million people and, Dear Diary, wasn't it a great day." 

Zero sum game 

1/24/13

By Dan Brillman 

Former Oakland Raiders star Tim Brown’s recent comments that then head coach Bill Callahan intentionally lost the 2003 Super Bowl has ignited a round of media fires. But are the words actionable? In an interview earlier this week, Brown suggested Callahan’s decision to change the team’s strategy two days before the big game without explanation amounted to “sabotage.” Callahan switched plans, Brown hinted, in order to hand a victory to Callahan’s good friend and former boss Jon Gruden.

Callahan, now an assistant for the Dallas Cowboys, responded with a statement using the word “defamatory” and demanding that Brown retract the accusation. Now NBC Sports columnist Mike Florio -- a former lawyer -- wonders if Callahan’s response is a legal shot across the bow. Could a lawsuit stick, he asks?  

Florio doesn’t have a quick and easy answer, but he’s doubtful. One issue that comes into play is the statute of limitations, he says. Brown’s comments only recently became national news, but the player has made them for years on Dallas radio stations. Depending on where a suit might be filed, the harm would be nullified. On the other hand, each accusation could reset the term.

A bigger hurdle for Callahan would be that Brown is a public figure, so the standard for defamation would be much higher. To prove it, Callahan would have to demonstrate that Brown made the comments knowing they were false or made with “reckless disregard,” a high bar given that the nature of his remarks reflect an opinion based on fact (the game plan change) rather than a direct accusation.

Another possible outcome, says Florio, is that Callahan could demonstrate he isn’t corrupt and could “end up shining a bright light on the notion that he is incompetent.” 

Droning on  

1/24/13

By Suhrith Parthasarathy 

A United Nations expert has launched an investigation into the use of drones by the United States and their impact on civilians, reports Reuters. Ben Emmerson, the UN special rapporteur on counterterrorism and human rights said in a statement today that there has been an “exponential” rise in the use of drone technology and there is a need for accountability. Emmerson and his team will probe 25 case studies and recommend what the U.S.’s duty is when there are allegations of wrongdoing, with a view to making reparations where civilians have been unfairly affected. 

The United States has been using drones, or unmanned aerial vehicles, since 2004 to kill individuals or groups that it deems threatening in its “war against terror.” According to data released by the Bureau of Investigative Journalism, a United Kingdom-based non-profit, Central Intelligence Agency drone attacks in Pakistan alone between 2004 and 2013 killed around 3,000 people, including up to 891 civilians. 

“To date, there has been an abysmal lack of transparency and no accountability for the U.S. government’s ever-expanding targeted killing program,” Hina Shamsi, director of the ACLU’s National Security Project, said in a statement. The group has brought a separate lawsuit on behalf of the families of three Americans who were killed by drone strikes in Yemen in 2011. 

John Brennan, the chief counterterrorism advisor, and President Barack Obama’s nominee to head the CIA, has said in the past that the United States is engaged in a global war against a stateless enemy, which makes these attacks legal. 

Shot in the dark 

1/24/13

By Anna Louie Sussman 

Gun owners are pointing to a video of a Florida man being arrested for carrying a licensed gun as proof of the persecution they face. But the video, which has gone viral, skips over the fact that the arrest took place in 2009, when it was illegal to display a weapon in public, reports Mother Jones.

The video was put online in early January and has energized gun rights advocates, who are gearing up to fight any gun control measures the Obama administration may attempt to pass. But in 2009, when the video was shot, Florida law prohibited the open carrying of weapons, even licensed ones and even accidentally.

The man in the video, Joel Edmond Smith, inadvertently displayed the gun as he fumbled for his paperwork after being stopped by the police. He was not prosecuted, and in 2011 the law was changed so that accidental display would no longer be criminal.

The brouhaha over the video comes as the Florida Supreme Court prepares to hear a case on whether having a gun is sufficiently suspicious to justify a search or investigation. The video appears to have been leaked by Sean Caranna, the executive director of Florida Carry, a gun rights advocacy group involved in the case, according to Mother Jones.

Summary Judgments for January 23 

Summary Judgments for January 22 

Summary Judgments for January 18 

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