An audible gasp was heard in the courtroom on November 15, 2013 when Jeremy Hammond was sentenced to 120 months imprisonment and three years of supervised release.  (“Hacker Receives 10-Year Sentence for ‘Causing Mayhem,'” Mark Mazzetti, The New York Times, Nov. 16, 2013, p. B2 (“NYT”)).  The Huffington Post described Hammond as “an activist who uses computer networks for political protests and other actions.”  (“A Conversation With Jeremy Hammond, American Political Prisoner Sentenced to 10 Years,” Vivien Lesnik Weisman, “Huffington Post,” “Huff Post Politics,” November 19, 2013, p. 1 (“Huff Post”).  Hammond is a “prominent member of the hacking group Anonymous.”  (NYT, p. B2).  He has also been described as “working under the banner of AntiSec, an offshoot of the hacktivist collective Anonymous.”  (Huff Post, p. 1).

Months earlier, in May 2013, Hammond pleaded guilty to a one-count Information charging him with a conspiracy to engage in computer hacking in violation of 18 U.S.C Sections 1030(a)(2)(C), (c)(2)(B)(iii) and (c)(2)(C).  The information described the conspiracy as follows:

“From at least in or about December 2011, up to an including in or about March 2012, HAMMOND and his co-conspirators mounted a cyber assault on the website and computer systems of Strategic Forecasting, Inc. (“Stratfor”), an information analysis company based in Austin, Texas, which maintained the website ‘'”

(“Sentencing Memorandum On Behalf of Jeremy Hammond,” November 1, 2013, p. 2 (“Hammond Sent. Mem.”)).

The Stratfor hack resulted in the leaking of 5.2 million emails and account information for approximately 860,000 Stratfor subscribers and clients including information from 60,000 credit cards.  (Huff Post, p. 1).  The emails revealed domestic spying on activists including Occupy Wall Street and a practice of surveillance through personal management programs or fake online personas.  (Huff Post, p. 1).  According to the Government, associates of Hammond used the credit card numbers to make at least $700,000 worth of donations to non-profit groups.  (NYT, p. B2).

Prior to his plea, Hammond had reached a plea agreement with the Federal Government in which he stipulated that the U.S. Sentencing Guideline range was 151 to 188 months’ imprisonment, but that the maximum statutory sentence of the offense of conviction was 120 months.  (“Government’s Memorandum of Law With Respect To Sentencing,” November 12, 2013, p. 1).  The statutory maximum controlled the maximum sentence the Court could give.  The relatively high Sentencing Guideline range was driven by two factors:  1) a loss amount between $1 million and $2.5 million, and 2)  a number of victims larger than 250.  (Hammond Sent. Mem., p. 4).  The Sentencing Guidelines, however, are not mandatory and are only one of many factors listed in 18 U.S.C. Section 3553(a) that the Court must take into account when sentencing a defendant.  Federal District Judge Loretta Preska could have sentenced below the ten year maximum.

In addressing the Court at sentencing, Hammond stated that his hacking activities were “‘acts of civil disobedience’ against both an expanding surveillance state and the companies that do the government’s bidding.”  (NYT, p. B2).  This defense was echoed by his attorneys who stated that Hammond, “questioned the government’s use of private security firms to gather intelligence at home and abroad, and the free reign afforded to these companies to operate without public scrutiny or government oversight.”  (Hammond Sent. Mem., p. 3).  His crime “was undertaken as an act of civil disobedience.”  (Hammond Sent. Mem., p. 3).

Judge Preska disagreed telling Hammond, “there’s nothing high-minded or public-spirited about causing mayhem.”  (NYT, p. B2).

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New York City Criminal Court Judge Robert Mandelbaum sentenced Genevieve Sabourin to six months’ imprisonment yesterday, November 14, after she was convicted of two counts of stalking and one count of harassment and one count of aggravated attempted harassment. Ms. Sabourin, a publicist and aspiring actress, was accused of stalking and harassing actor Alec Baldwin and his wife Hilaria Thomas Baldwin. Earlier in the week, Judge Mandelbaum sentenced Ms. Sabourin to a 30 day term of imprisonment for contempt of court for disrupting the trial. The defendant had been offered a plea bargain in which she would serve no jail time and the charges would have been dismissed. Instead, Ms. Sabourin chose a non-jury trial that led to her combined sentence of seven months.

The New Jersey Supreme Court ruled on July 18, 2013 in State v. Thomas W. Earls that the police will have to obtain a search warrant to obtain location information from cell phone providers.  Cell phone providers can place the location of cell phones at specific times by tracking the particular cell phone tower with which the cell phone is interacting or has interacted in the past.  Typically, law enforcement agencies have been able to obtain this data without a warrant in other parts of the country.  

The Court based the ruling on the expectation of privacy reasonably expected by cell phone customers.  The decision was based squarely on the New Jersey State Constitution guarantees of privacy and not the Fourth Amendment to the U.S. Constitution, which protects against unreasonable searches and seizures.

The New Jersey Supreme Court on July 19, 2012 released expanded jury instructions relating to eyewitness identification in criminal cases.  Last year, on August 24, 2011, the New Jersey Supreme Court issued a unanimous decision in State v. Henderson, which revised the legal framework for evaluating and admitting eyewitness identification evidence.  At the time, the court directed that jury instructions be revised to reflect the ruling.

The new jury instructions are the most advanced in the country in incorporating scientific evidence on human memory and eyewitness identifications.  For example, the new jury instructions state:  “Eyewitness identification evidence must be scrutinized carefully . . . research has shown that there are risks of making mistaken identifications. . . . Human memory is not foolproof.  Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened.  Memory is far more complex.”

The jury charge goes on to explain that memory can be affected by a variety of factors.  Among these are factors that occurred during the time of the offense and factors that occurred during procedures used by law enforcement that led to the identification of the defendant.

Among the factors during the offense that may affect the reliability of an identification are:  the stress the witness was under, the duration of observation and whether the witness was focusing on a weapon.  The charge also asks the jury to consider the consistency of the witness’s prior descriptions of the defendant.  The charge also admonishes the jury to consider that the witness’s confidence about the identification may not be an indication of reliability.  The jury charge also informs the jury that people may have greater difficulty identifying members of a different race.

Jurors are also to consider whether the reliability of the identification was affected by outside factors such as reports and pictures in the news.

Regarding identification during line-ups and other out-of-court police procedures and in-court identifications, the jury charge enumerates a number of factors for the jury to consider in evaluating reliability.  The new charge is path breaking in informing the jury to consider whether subtle influences were exerted on the witness by a line-up administrator who knew which person in the lineup was the suspect and whether feedback by the police to the witness influenced the confidence of the witness in the identification.

The new charge will surely impact jurisprudence on eyewitness identification in other states, as well as providing greater assurance in New Jersey that persons are not wrongfully convicted.


Naturally Occurring Marijuana Plants

Governor Andrew Cuomo of New York announced yesterday that he will ask the State Legislature to decriminalize possession of small amounts of marijuana in plain view.  The action comes in response to the large number of criminal prosecutions of African American and Latinos for possession of marijuana open to public view arising from New York City’s aggressive “stop-and-frisk” policy.  Under the Constitution as construed by the Supreme Court, the police are entitled to pat down or frisk a person if the police officer reasonably believes that the person is committing, has committed or is about to commit a crime and the police officer reasonably believes that he or she is in danger of physical injury by virtue of the accused being armed.  Terry v. Ohio, 392 U.S. 1 (1968). 

In practice, the police don’t have a reasonable belief that their target is involved in crime, they pat down their target and feel a cell phone, and then ask the target to empty his or her pockets and go so far as to demand that the person take off his or her shoes.  When a small amount of marijuana is revealed, the target is charged with possession of marijuana in a public place a misdemeanor punishable by six months in jail, instead of the violation punishable by a $100 fine.  The violation is like a traffic ticket and is not a crime.

The practice has led to the stigmatization of a broad swath of the young, minority community making it difficult for the convicted to obtain work.  It also has led to a form of racial profiling.  According to The New York Times, from 2002 through 2011, New York City had 400,000 low-level marijuana arrests, more than the three mayoral administrations prior to Mayor Bloomberg, spanning 24 years, combined.  Last year, New York City arrested over 50,000 people for possession of small amounts of marijuana.

The policy has also caused deteriorating relationships between the police and the minority community.  While Police Commissioner Raymond Kelly issued a directive in September that police officers were not to arrest people who take small amounts of marijuana out of their pockets after being stopped, according to The Times, this resulted only in a modest decline in the number of arrests. 

After Governor Cuomo announced his proposal, both Police Commissioner Kelly and Mayor Bloomberg announced their support for it. 

Under Governor Cuomo’s proposal, it would still be a misdemeanor to smoke marijuana in public. 

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Stock Trading Board

A former attorney and associate at several large nationally-recognized firms was sentenced on June 4 to a 12-year term of imprisonment for his role in an insider trading scheme.  The scheme began in 1994 and resulted in $37 million in illegal gains.  Matthew Kluger faced 11 to 14 years in jail under the United States Sentencing Guidelines, which are advisory.

 U.S. District Court Judge Katherine Hayden, sitting in Newark, New Jersey, sentenced Kluger to what the Judge referred to as a harsh sentence.  Kluger passed on information concerning corporate mergers he learned as an associate at four different law firms to co-defendant Kenneth Robinson who passed it on to a stock trader Garret Bauer.  Bauer traded ahead of public announcements for the accounts of the three co-defendants.  The law firms involved are:  Cravath, Swaine & Moore; Skadden, Arps; Fried, Frank; and Wilson; Sonsini.  All are recognized nationally as top-quality law firms. 

According to the New Jersey Law Journal, the conspiracy involved more than 30 separate transactions.  Bauer took the greatest portion of the proceeds and was forced to give back $31.6 million.  Kluger forfeited $516,000, while Robinson forfeited $845,000 of illegal profits.

Conspirators are liable for the reasonably foreseeable acts of their coconspirators.  While Kluger argued he was misled as to the amount of the trading undertaken by his coconspirators, his sentence did not reflect the Court’s crediting of that argument.  The sentence also likely reflected the extent of the breach of trust by Kluger as an associate lawyer at four different law firms.

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In a path breaking and far reaching decision, the New Jersey Supreme Court recently recognized certain best practices in eyewitness lineup procedures.  See State v. Henderson, 208 N.J. 208 (2011).

Among the best practices that are more likely to ensure a greater level of reliability of the lineup procedure are:

a.  Administration of the lineup in a double blind fashion, that is, the administrator of the lineup should not know which person in the lineup is the defendant.

b.  Reading a statement to the witness that the defendant may or may not be in the lineup;

c.  In the event the witness makes a positive identification, the administrator should refrain from telling the witness that he or she made a correct identification.  Moreover,soliciting an indication in the witness’ own words of how certain the witness is about the identification will increase the reliability of the identification.

A double blind administration of a lineup occurs when the administrator does not know who the suspect is.  The New Jersey Supreme Court has determined that “a non-blind lineup procedure can affect the reliability of a lineup because even the best-intentioned, non-blind administrator can act in a way that inadvertently sways an eyewitness trying to identify a suspect.”  State v. Henderson, 208 N.J. 208, 250 (NJ 2011).  The court concluded, “failure to perform blind lineup procedures can increase the likelihood of misidentification.”  Id. at 250.  A double bind test “prevents the tester from skewing, even unintentionally, the test result.”  In the Matter of the People of the State of New York v. Wilson, 191 Misc.2d 224, 226 (Sup. Ct. Kings Cty. 2002).  Double blind testing has long been a near universally accepted staple of scientific research.  Id., at 228.  See also, Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, p. 10 (2009)(recommending double-blind lineup procedures).

To help prevent misidentification, it also is important for the administrator of the lineup to read a statement to the witness to the effect that the perpetrator may or may not be in the lineup.  The Department of Justice guidelines recommend reading a statement that includes, “the person who committed the crime may or may not be present in the group of individuals.”  Eyewitness Evidence:  A Guide for Law Enforcement, U.S. Department of Justice, pp. 31-33 (1999); see also, Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, p. 10 (2009)(recommending such a statement be read to the witness).

Post-identification feedback presents the risk that the witness’ memory will be affected by the feedback.  Confirmation by the police that a witness has correctly identified the suspect can reduce doubt and engender a false sense of confidence in a witness.  Henderson, 208 N.J. at 253.  Accordingly, prohibiting the police from confirming to a witness that the witness identified the suspect, will help reduce statements of inflated confidence at trial.  A confidence statement by the witness, that is a statement in his or her own words about how certain he or she is regarding the identification, will also help to ensure that the witness’ confidence level does not become affected by post-identification events.  Such a statement gives the jury a way to gauge the weight it should accord a witness’ identification.  Given the impact of post-identification events, the truer measure of certainty is the original statement made by the witness at the time of the identification.

The New Jersey Supreme Court has stated:  “To the extent confidence may be relevant in certain circumstances, it must be recorded in the witness’ own words before any possible feedback.  To avoid possible distortion, law enforcement officers should make a full record — written or otherwise – of the witness’ statement of confidence once an identification is made.  Even then, feedback about the individual selected must be avoided.”   Henderson, 208 N.J. at 254.