In this post, TalkLeft called attention to a silly citation issued to a Scranton woman who used salty language inside her own home after her toilet overflowed. A neighbor (an off-duty cop) heard the cursing through an open window and called in a complaint. The woman was cited for disorderly conduct.

Demonstrating much more sense than the officer who issued the citation, District Judge Terrence Gallagher dismissed the charge.

Although the language she used "may be considered by some to be offensive, vulgar and imprudent ... such representations are protected speech pursuant to the First Amendment," the judge wrote Thursday.

Today's moral: if you hear language you don't like coming from someone's home, stop listening and mind your own business. Don't waste the community's resources by calling the police.

In a pair of entertaining posts, Grits for Breakfast takes on "judicial activism" at the Texas Court of Criminal Appeals, deriding a decision that overturned a police officer's conviction for tampering with evidence because the appellate court majority accepted a defense that the jury didn't buy: the officer who returned part of the marijuana he had seized from the arrestee so she could get high wasn't tampering with evidence (despite knowing that he was making the returned evidence unavailable for a criminal prosecution), but was merely trying to "create a snitch."

Really? It's come to this? Cops can distribute illegal dope so they can recruit informants to catch people distributing illegal dope? What, exactly, is the point of that?

And why, exactly, would a police officer believe that he's entitled to distribute an illegal drug with knowledge that the recipient will illegally use it, even if he thinks the distribution might induce the drug user to become a snitch?

Criminal trials are fraught with peril, and no defense is ever perfect. Credit Robert Udell for his stand up decision to testify that he mistakes during his defense of Cynthia Sommer, who was charged with murdering "her Miramar-based Marine husband."

Sommer, 34, was convicted by a jury in January of first-degree murder in the death of Sgt. Todd Sommer. Prosecutors said he died of arsenic poisoning. ... Udell said Friday he failed to call witnesses to refute testimony about where the arsenic – found in some of Todd Sommer's bodily tissues – could have come from.

Udell also admitted opening the door to evidence that his client used her husband's life insurance proceeds to enlarge her breasts.

She was depicted as a widow who partied and had sex with several men instead of mourning her husband's death.

Superior Court Judge Peter C. Deddeh granted Sommer a new trial.

Appellate courts often tell us that jurors are presumed to follow the trial court's instructions. Every now and then, reality intrudes. Jurors are always instructed to base their verdict on the law and evidence presented during the trial; they are not to consult sources of information outside the courtroom. That didn't stop jurors from trying to look up a witness' MySpace page in a sexual assault trial after hearing evidence about the page's content.

During the trial, the two jurors ended up looking for the home page of KJ, one of the alleged victims, whose mother had testified that she was withdrawn and not interested in older males.

The fact that KJ had a MySpace profile had come up during testimony. KJ had posted a comment on her page saying "remember my face because I'm going to be famous someday" and, according to the defense, used the account to communicate with older boys.

The bulk of the page had been restricted to invited friends by the time the jurors viewed it, but the West Virginia Supreme Court sensibly reversed the conviction to protect the integrity of the verdict.

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Notwithstanding the determined efforts of New York City law enforcement, stopping to chat with another pedestrian is not a crime.

The New York Court of Appeals decided Tuesday to overturn the conviction of Matthew Jones, who was charged with disorderly conduct and resisting arrest on June 12, 2004. Police said other people "had to walk around" him, he wouldn't move when asked and he flailed his arms.

Standing rooted to a spot while hanging with friends is not the kind of conduct New York's disorderly conduct statute prohibits.

"Otherwise, any person who happens to stop on a sidewalk — whether to greet another, to seek directions or simply to regain one's bearings — would be subject to prosecution under this statute," the opinion said.

People who block the sidewalk are annoying, but if being annoying were a crime, few would be free to guard the jails.

Good news from Georgia.

Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate.

"It is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected," read the unanimous opinion, written by presiding Justice Carol Hunstein.

The Southern Center for Human Rights has been instrumental in fighting this law. Background on the law is here.

The text of the opinion is here (pdf.) The sex offender statute is here (pdf.)

Various provisions of the Patriot Act offend the Constitution. Today, federal District Court Judge Ann Aiken focused on the Act's attempt to circumvent the requirement that warrants to search for evidence of suspected criminal activity must be based on probable cause. The Constitution prevailed (pdf).

The case arose out of the FBI's unfounded suspicion that Brandon Mayfield orchestrated a train bombing in Madrid. Mayfield's odyssey is chronicled in these TalkLeft posts. Mayfield brought a lawsuit that, among other things, asked the court to declare the Patriot Act unconstitutional.

Before the Patriot Act, the law allowed the government to obtain a surveillance order from the FISA court when it certified that the primary purpose of surveillance was the gathering of foreign intelligence information. A search primarily intended to uncover evidence of a domestic crime required a showing of probable cause. The Patriot Act authorized a FISA surveillance order when the the executive branch certified that a significant purpose of surveillance was foreign intelligence gathering, even if the surveillance primarily furthered an ordinary criminal investigation.

Judge Aiken identified the constitutional dilemma:

Significantly, a seemingly minor change in wording has a dramatic and significant impact on the application of FISA. A warrant under FISA now issues if "a significant purpose" of the surveillance is foreign intelligence. Now, for the first time in our Nation's history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.

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Virginia is the only state in the Union that allows the taking of DNA for certain violent felonies. On Friday, the Virginia Supreme Court upheld the suspicionless taking of DNA from a rape suspect in 2003 that linked him to a 1991 "cold case" rape.

The Virginia Court of Appeals upheld the conviction in 2006, and the Virginia Supreme Court, finding the taking of DNA no different than fingerprinting, upheld the suspicionless and probable cause-less taking of the same that linked the defendant to the 1991 rape. Anderson v. Commonwealth, 2007 Va. LEXIS 115 (September 14, 2007).

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Seizing a vehicle is a disproportionate response to the minor social harm (if any) caused by drivers who use their cars and trucks to solicit a prostitute or to buy small quantities of marijuana. The California Supreme Court, by a 4-3 vote, struck down city ordinances that purport to authorize the seizure and forfeiture of vehicles used to commit those crimes on the ground that state law does not authorize cities to impose that penalty.

The Court invalidated a Stockton ordinance that authorized the police to seize a vehicle if they have probable cause to believe it was used to solicit an act of prostitution or to acquire any controlled substance. The ordinance provided that title to the vehicle would vest in the City, and gave the City a generous year to hang onto the vehicle before starting a forfeiture proceeding. Because the Court found that the ordinance was preempted by the state criminal code, it didn't reach the obvious due process concerns that the ordinance raised.

The decision is here (pdf).

Berkeley voters may get a second chance to vote on a city initiative that would establish procedures for opening medical marijuana dispensaries. A California judge made a preliminary decision to nullify the election that resulted in the proposal's narrow defeat. The reason:

The county reused voting machines from Diebold Election Systems Inc. without saving sufficient data to carry out a recount or review the election process, [Gregory] Luke [representing Americans for Safe Access] said. Officials failed to save key evidence even after the suit was pending, he said. Data from the vote in question has only been found on 20 of the hundreds of machines used in the election, according to Luke. ...

In addition to ordering another vote on Measure R, Judge Smith's preliminary ruling called for the county to pay the US$22,604 cost of the recount, as well as attorney's fees and the cost of a trip to Diebold offices in Texas.

The judge is expected to make a final ruling (which may be appealed) within two weeks.

For some time now, the RIAA has been obtaining subpoenas from federal courts that compel colleges and universities to disclose the identities of students associated with IP's that RIAA believes were used to download music. Having identified the students, the RIAA threatens litigation unless the students fork over a few thousand dollars. This heavy-handed approach to copyright enforcement hasn't inhibited illegal downloading, but it's created a nice cash machine for the RIAA and its lawyers.

A U.S. District Judge in Virginia tossed a judicial wrench into the machine on Thursday when he refused the RIAA's ex parte request for a subpoena. Judge Kelley's tightly-reasoned decision concludes that no law authorizes a court to order the disclosure. Do you suppose RIAA will cite his decision in its future ex parte requests for subpoenas?

Conservative appeals court judge Janice Rogers Brown has dissented in a search and seizure case in the D.C. Court of Appeals today. She would have invalidated a "Terry" traffic stop. From her dissent:

It is true, of course, that as a standard “reasonable suspicion” is necessarily imprecise. But no matter how low the bar is set, generic racial descriptions devoid of distinctive individualized details cannot, without more, provide police adequate justification for a Terry stop. It is not enough to share the same racial characteristics as a suspect and be in the vicinity.

In short, Rogers Brown argues that "reasonable suspicion" has become, in effect, a license for stopping anyone who is young, black and male.

The opinion is here (pdf), her dissent begins on page 11.

[hat tip reader Emil.]