Archive | October 2013

Series of Articles Alleging Prosecutorial Misconduct alleged Capital Cases

Prosecutorial misconduct alleged in half of capital cases

Part 1 of 4

Noel Levy was Arizona Prosecutor of the Year in 1990 when he convinced a jury to convict Debra Milke of first-degree murder for allegedly helping to plan the murder of her 4-year-old son.

A year later, he convinced a judge to send her to death row.

It was a scandalous case: Prosecutors charged that in December 1989, Milke asked her roommate and erstwhile suitor to kill the child.

The roommate and a friend told the boy he was going to the mall to see Santa Claus. Instead, they took him to the desert in northwest Phoenix and shot him in the head.

But neither man would agree to testify against Milke, and the state’s case depended on a supposed confession Milke made to a Phoenix police detective.

Milke denied confessing.

The detective had not recorded the interview, and there were no witnesses to the confession.

When Milke’s defense attorneys tried to obtain the detective’s personnel record to show that he was an unreliable witness with what a federal court called a “history of misconduct, court orders and disciplinary action,” the state got the judge to quash the subpoena.

“I really thought the detective was a straight shooter, and I had no idea about all the stuff that allegedly came out,” Levy recently told The Arizona Republic.

But in March of this year, after Milke, now 49, had spent nearly 24 years in custody, the 9th U.S. Circuit Court of Appeals threw out her conviction and sentence because of the state’s failure to turn over the detective’s personnel record so that Milke’s defense team could challenge the questionable confession.

The 9th Circuit put the onus on the prosecution.

“(T)he Constitution requires a fair trial,” the ruling said, “and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence.”

The 9th Circuit judges ordered that Milke be retried within 90 days or be released.

The chief circuit judge referred the case to the U.S. Attorney General’s Office to investigate civil-rights infringements. Under the 9th Circuit order, prosecutors must allow the detective’s personnel record into evidence if they use the contested confession.

Prosecutors are responsible for the testimony of the law-enforcement officers investigating their cases. Cops and prosecutors are the good guys. They put criminals in prison, sometimes on death row. Juries tend to believe them when they say someone is guilty. They don’t expect them to exaggerate or withhold evidence. They don’t expect their witnesses to present false testimony.

Yet The Arizona Republic found that, when the stakes are highest — when a trial involves a possible death sentence — that’s exactly what can happen.

In half of all capital cases in Arizona since 2002, prosecutorial misconduct was alleged by appellate attorneys. Those allegations ranged in seriousness from being over emotional to encouraging perjury.

Nearly half those allegations were validated by the Arizona Supreme Court.

Only two death sentences were thrown out — one for a prosecutor’s tactics that were considered overreaching but not actual misconduct because a judge had allowed him to do it.

Two prosecutors were punished, one with disbarment, the other with a short suspension.

There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct.

In fact, they are often congratulated.

Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials, according to The Republic’s examination of court documents.

And when prosecutors push the limits during criminal trials, whether crossing the line into misconduct or just walking up to it, there are risks: Convictions like Milke’s get overturned, even if it takes 24 years, and innocent people, like Ray Krone, go to prison.

See more stories at:

Caution: Your GPS Ankle Bracelet Is Listening

October 25, 2013 06:48:44 am

By Waldo D. Covas Quevedo

When defense lawyer Fermín L. Arraiza-Navas sat down with a prospective client in San Juan, Puerto Rico last April, he casually asked the man about the Global Positioning System (GPS) ankle bracelet that he was wearing as a condition for his bail.

The reply was just as casual.

“They speak to me through that thing,” the man said.

It wasn’t the first time the lawyer encountered GPS bracelets with apparently extraordinary powers. He told the Puerto Rico Center for Investigative Reporting (CPIPR) that a previous defendant’s GPS ankle bracelet started to vibrate during a meeting with him.

But Arraiza-Navas decided this was more than a coincidence. He cancelled the meeting and filed a motion at the Puerto Rico State Superior Court in San Juan to have the device removed.

During the court hearing on the motion, his worst suspicions were confirmed.

A Corrections Department agent, who works at the Puerto Rico Pretrial Services Office’s monitoring center for defendants free on bail, placed a GPS ankle bracelet on the court podium and made a call from the device to a technician of the SecureAlert company, which provides them at a facility in Sandy, Utah.

The technician, who was addressed through the GPS ankle bracelet—which has a phone feature—testified that, although the device is supposed to vibrate when activated from Utah, the feature could be turned on without warning.

Superior Judge Elizabeth Linares ordered the device removed within the Court’s cell area for the duration of the meeting between the defendant and his defense counsel.

But the discovery has raised serious questions about whether such technology violates the confidentiality of the attorney-client relationship—and the right to privacy—for thousands of individuals under court supervision across the U.S. whose personal private conversations could be heard or recorded without their knowledge and without a court warrant.

Civil Liberties Concerns

These concerns were shared by privacy experts and civil liberties attorneys contacted by the Puerto Rico Center for Investigative Reporting.

Puerto Rico Constitutional legal expert Carlos E. Ramos, who teaches at the Interamerican University Law School, said “the state [efforts] to listen and/or record the unauthorized conversations between a defendant with his or her lawyer through an electronic GPS-bracelet represents the most absolute and gross infringement to that person’s constitutional rights.”

“If that action is conducted through a private company, the infringement is magnified,” Ramos added.

During the court hearing, Arraiza-Navas noted that no alarm or signal was heard or seen when the electronic communication was allegedly finished.

In his motion to the court, the lawyer stated that the system’s operators had informed his office that the device was able to “activate unilaterally” from the command post and that “the conversations could be heard.”

However, Assistant San Juan District Attorney Erika Quiñones-González denied that the device infringed on the defendants constitutional rights.

Quiñones-González asserted in a motion contained in the case file that “the supervised defendant is warned by a vibration and sound before the line is open to allow communication.”

She added in her motion that when the phone call is over the GPS electronic supervision system emits the phrase “Secure Alert: disconnect call”.

The prosecution also claimed the controversy was premature because it was not proven that his constitutional rights were violated.

Opening the Line

However, in her response, Quiñones-González also stated that the Pretrial Services Command Control officer testified that there are two ways to open the phone line: one is announcing the call by the vibration and a particular loud sound.

“The supervised defendant does not have to take action and the line is opened so that the agent can provide instructions or communicate with the supervised defendant, as the case may be” if the protocol is activated by some alert, she said

The second method: when the supervised defendant clicks a button to notify the Command Center of an emergency, the system emits the phrase “Secure Alert: disconnect call” so that both know that the call is over and close the communication.

Issa L. Toledo-Colón, Deputy Executive Director of the Puerto Rico State Pretrial Services Office, said that the Commonwealth supervises 714 defendants awaiting trial with the traditional Radio Frequency (RF) ankle bracelets through a contract with Behavior Intelligence International, and another 337 with GPS-cellular phone ankle bracelets through a contract with SecureAlert.

An Associated Press investigation published in July estimated that as many as 100,000 sex offenders, parolees and suspects are free on bail wearing ankle bracelets.

The Prison Legal News, a printed and on-line publication aimed primarily at an inmate readership, estimates that 200,000 persons are under some sort of ankle bracelet electronic monitoring.

GPS ankle bracelets were introduced in the last decade to replace the original devices, in wide use around the U.S. since the 1980s, that require a land phone line. The bracelets alert a monitoring center when the person wearing it is away from the perimeter established by the court, usually their own home.

More sophisticated version of these devices have the same features as a cellular phone. They provide real time monitoring, with the capacity to record the location of the person wearing it—thereby allowing authorities to be warned if the suspect or convict is in a banned area or to confirm the individual is complying with his or her work, study, medical or other activities agreed with the court.

The high-tech surveillance capability of these devices represents an overstep of the state’s right to supervise a defendant charged with a crime, Arraiza-Navas wrote the court.

Calling the practice “flagrantly unconstitutional,” he said “it cannot be supported by law that in order to be set free under bail [persons] charged with a crime have to waive their right to privacy and to keep their conversations with attorneys confidential.”

Experts Shocked

Leading legal experts in Puerto Rico and the U.S. expressed serious concerns about the possibility of government and private companies providing electronic ankle bracelets being able to eavesdrop or record private conversations of the persons wearing them.

The lawyers claim this violates the Fourth Amendment, as well as the Federal Wiretap Act and the Puerto Rico Constitution.

Victor A. Meléndez-Lugo, Director for the Appeals Division for the Puerto Rico Legal Aid Society, said that he has not heard of any similar case and found the possibility “shocking”.

“The recording or interception of phone calls in Puerto Rico constitutes a crime”, Meléndez-Lugo added. “If that is happening in Puerto Rico it has to stop happening since yesterday.”

William Ramírez, Executive Director for the Puerto Rico Chapter of the American Civil Liberties Union, said defendants have a right to privacy to avoid self-incrimination—a right that could be infringed if they are unaware that their conversations could be listened to or recorded by the Pretrial Services Office, or by the private company that provides the GPS/cellular phone ankle bracelet.

According to Ramírez , the right to post bail under the condition of wearing an ankle bracelet is not an automatic waiver to the right to privacy.

Other civil liberties advocates agreed.

Ben Wizner, Senior Staff Attorney for the ACLU in Washington, D. C. said it was the first time he had heard of such a case, adding that “if it allows eavesdropping or to record conversations, (it) is a very important issue that is worth exploring.”

Jerry J. Cox, President of the National Association of Criminal Defense Lawyers, expressed concern for the incident in written remarks to the CPIPR.

“If law enforcement agencies anywhere in this country are using such microphone-equipped GPS ankle bracelets they must, at a minimum, make both a general disclosure of that fact to the public and our elected representatives, as well as a specific and complete disclosure of that fact to each and every person who might wear one of those ankle bracelets, as well as to his or her attorney,” Cox wrote.

“And under no circumstances whatsoever can there be any intrusion into the confidential and privileged discussions between any person and their counsel.”

Waldo D. Covas Quevedo is a reporter for the Puerto Rico Center for Investigative Reporting. The original, longer version of this story appeared in Spanish in the Centro de Periodismo Investigativo de Puerto Rico(CPIPR) website, and is reprinted through the services of the Investigative News Network. He welcomes comments from readers.

Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence

The New York Times

October 26, 2013


WASHINGTON — The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional.

Prosecutors filed such a notice late Friday in the case of Jamshid Muhtorov, who was charged in Colorado in January 2012 with providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan.

Mr. Muhtorov is accused of planning to travel abroad to join the militants and has pleaded not guilty. A criminal complaint against him showed that much of the government’s case was based on intercepted e-mails and phone calls.

The government’s notice allows Mr. Muhtorov’s lawyer to ask a court to suppress the evidence by arguing that it derived from unconstitutional surveillance, setting in motion judicial review of the eavesdropping.

The New York Times reported on Oct. 17 that the decision by prosecutors to notify a defendant about the wiretapping followed a legal policy debate inside the Justice Department.

The debate began in June when Solicitor General Donald B. Verrilli Jr. discovered that the department’s National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law.

The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. Legalizing a form of the Bush administration’s program of warrantless surveillance, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil so long as the surveillance is “targeted” at a foreigner abroad.

A group of plaintiffs led by Amnesty International had challenged the law as unconstitutional. But Mr. Verrilli last year urged the Supreme Court to dismiss the case because those plaintiffs could not prove that they had been wiretapped. In making that argument, he said a defendant who faced evidence derived from the law would have proper legal standing and would be notified, so dismissing the lawsuit by Amnesty International would not close the door to judicial review of the 2008 law. The court accepted that logic, voting 5-to-4 to dismiss the case.

In a statement, Patrick Toomey, staff attorney with the American Civil Liberties Union, which had represented Amnesty International and the other plaintiffs, hailed the move but criticized the Justice Department’s prior practice.

“We welcome the government’s belated recognition that it must give notice to criminal defendants who it has monitored under the most sweeping surveillance law ever passed by Congress,” Mr. Toomey said. “By withholding notice, the government has avoided judicial review of its dragnet warrantless wiretapping program for five years.”

The Justice Department change traces back to June, when The Times reported that prosecutors in Fort Lauderdale and Chicago had told plaintiffs they did not need to say whether evidence in their cases derived from warrantless wiretapping, in conflict with what the Justice Department had told the Supreme Court.

After reading the article, Mr. Verrilli sought an explanation from the National Security Division, whose lawyers had vetted his briefs and helped him practice for his arguments, according to officials with knowledge of the internal deliberations. It was only then that he learned of the division’s practice of narrowly interpreting its need to notify defendants of evidence “derived from” warrantless wiretapping.

There ensued a wider debate throughout June and July, the officials said. National security prosecutors raised operational concerns: disclosing more to defendants could tip off a foreign target that his communications were being monitored, so intelligence officials might become reluctant to share crucial information that might create problems in a later trial.

Mr. Verrilli was said to have argued that there was no legal basis to conceal from defendants that the evidence derived from legally untested surveillance, preventing them from knowing they had an opportunity to challenge it. Ultimately, his view prevailed and the National Security Division changed its practice going forward, leading to the new filing on Friday in Mr. Muhtorov’s case.

Still, it remains unclear how many other cases — including closed matters in which convicts are already service prison sentences — involved evidence derived from warrantless wiretapping in which the National Security Division did not provide full notice to defendants, nor whether the department will belatedly notify them. Such a notice could lead to efforts to reopen those cases.

This article has been revised to reflect the following correction:

Correction: October 27, 2013

An earlier version of this article incorrectly stated that a criminal complaint showed that much of the government’s case against Jamshid Muhtorov was based on e-mails and phone calls intercepted under a 2008 surveillance law. The complaint does not say that the particular communications it cites were obtained directly from such surveillance.

NYT – Justices Weigh Freezing Assets Against Hiring Lawyers

WASHINGTON — Kerri and Brian Kaley, a New York couple, were unable to hire a lawyer to defend themselves against serious criminal charges because the government had frozen their assets. That seemed to trouble several justices at a Supreme Court argument on Wednesday.
But it was not clear that a majority of the justices could agree on a way to address the couple’s situation without cutting back on earlier decisions or intruding into what a government lawyer insisted was the job of the grand jury.

The Kaleys were accused of participating in a scheme to obtain and sell prescription medical devices. They said they were likely to win at trial because no one had been harmed by their conduct, a point two justices seemed to find plausible.

The couple’s lawyer, Howard Srebnick, said the case posed a fundamental issue.

“I ask that this court not rule that the government can beggar a defendant into submission,” Mr. Srebnick said. “I ask this court not to rule that the government can impoverish someone without giving them a chance to be heard through their counsel of choice.”

But the relief the Kaleys actually sought was substantially narrower. They did not challenge the general framework established by a pair of 1989 Supreme Court decisions, which ruled that freezing assets before a criminal trial was permissible, even if it frustrated the defendant’s ability to hire a lawyer, so long as there was probable cause that a crime had been committed and the assets were linked to the offenses described in the indictment.

All the Kaleys were seeking was a hearing at which they could try to show that they were entitled to use their money to defend themselves because the charges against them were flawed.

Justice Antonin Scalia said he was uncomfortable with the modest step of allowing a hearing but might be open to a bolder one.

“To save your client, I would prefer a rule that says you cannot, even with a grand jury indictment, prevent the defendant from using funds that are in his possession to hire counsel,” he said. “Don’t need a hearing.”

Later in the argument, he proposed another solution. “I don’t like casting into doubt the judgment of the grand jury,” he said, “but why couldn’t we say that when you’re taking away funds that are needed for hiring a lawyer for your defense, you need something more than probable cause?” he asked. “Couldn’t we make that up?”

Michael R. Dreeben, a deputy United States solicitor general, responded that earlier decisions by the court had ruled out that approach.

Some justices tried to assess the practical consequences of allowing the requested hearings. Justice Elena Kagan said that defendants had never prevailed in any of 25 such hearings conducted in a part of the country that allowed them.

“So what are we going through all this rigamarole for,” she asked, “for the prospect of, you know, coming out the same way in the end?”

Chief Justice John G. Roberts Jr., who emerged as the Kaleys’ primary defender, said those statistics were only part of the picture.

“Who knows how many hundreds of times the government would have sought to seize the assets but didn’t because they knew they would have to justify it at a hearing?” he asked.

Mr. Dreeben said that grand jury findings of probable cause often serve as a basis for jailing a defendant until trial. It followed, he said, that such findings may also serve as the basis for freezing tainted money.

Chief Justice Roberts rejected the comparison. “It’s not that property is more valuable than liberty or anything like that,” he said. “It’s that the property can be used to hire a lawyer who can keep him out of jail for the next 30 years. So the parallels don’t strike me as useful.”

Mr. Dreeben said that requiring hearings could allow defendants to have an early look at the government’s evidence, put prosecution witnesses at risk and frustrate efforts to pay restitution to crime victims.

Chief Justice Roberts jumped on the last point. A hearing, he said, could also establish whether there had been any victims, a question in dispute in the case, Kaley v. United States, No. 12-464.

Above the Law – FBI’s Case Against Silk Road Boss Is A Fascinating Read

It’s been known for quite some time that the feds were desperately trying to hunt down the folks behind Silk Road, the somewhat infamous “dark web” e-commerce site, accessible only via Tor, which was famous mainly for selling drugs in a slightly anonymous fashion. Of course, when the news came out recently that the FBI had used malware to reveal Tor Browser users, many believed that this was part of an attempt to track down Silk Road, and that seems increasingly likely after the FBI announced this morning that it has arrested Silk Road’s owner, Ross William Ulbricht, who went by the moniker “Dread Pirate Roberts” online. Turns out that Ulbricht was based in San Francisco and was arrested at the public library, of all places….The case against him (pdf) is interesting, because beyond just going after him for helping to distribute illegal drugs, they claim that he solicited a Silk Road user in a murder-for-hire request (though he’s not charged with that), to potentially go after a different Silk Road user who was threatening to reveal the identities of people on the site (the user claimed to have hacked a large vendor’s account, and demanded $500,000 to not reveal names). They also go after him (of course) with a CFAA violation claim and a money laundering claim. Of course, we’ve seen the DOJ inflate and pile on charges against people in the past, so it will be worth watching to see what details come out of this — but soliciting a murder, if true, seems like a fairly big deal.

In addition, the complaint against him claims that Silk Road generated 9.5 million Bitcoins in revenue, leading to 600,000 Bitcoins in commissions (or roughly $1.2 billion in sales and $79.8 million in commissions). Of course, that seems noticeably higher than previous research had suggested. It also notes that the FBI itself made over 100 purchases on Silk Road — including ecstasy, cocaine, heroin, LSD and others. Apparently, they wanted a lot of evidence. And, in case you were wondering, the FBI informs us that their orders “have typically shown high purity levels of the drug the item was advertised to be on Silk Road.”

While the details in the complaint seem pretty thorough, there are some tidbits that stand out as questionable. The complaint clearly states that Bitcoin and Tor are both legal and have legitimate purposes, but it also says that Silk Road’s use of proxies to “hide the identities of those that run Silk Road… reflect his awareness of the illegal nature of the Silk Road enterprise.” I don’t quite see how wanting to be anonymous automatically suggests that you’re engaged in illegal behavior. Later in the complaint, the FBI agent spends an awful lot of time talking about how Ulbricht was interested in the Mises Institute, the well-known libertarian think tank. I’m not sure what that has to do with anything. The FBI notes that Dread Pirate Roberts’ defense of Silk Road included quoting Ludwig von Mises and Murray Rothbard (two economists closely associated with the Mises Institute), but lots of people follow the Mises Institute, so that seems like a stretch.

Another questionable tidbit: the FBI notes that Ulbricht posted a question to Stack Overflow using his real name, but “less than one minute later, Ulbricht changed his username at Stack Overflow from ‘Ross Ulbricht’ to ‘frosty.’” and then the FBI agent noted “I know that criminals seeking to hide their identity online will often use pseudononymous usernames to conceal their identity.” Later, after Ulbricht changes the email on the account to — an invalid email address — the FBI agent similarly notes that “criminals seeking to hide their identity online will often use fictitious e-mail addresses.” Well, yes, but the same is true of people with perfectly legitimate reasons to be anonymous, or those who don’t want spam. While there does appear to be plenty of actual evidence, the use of these tidbits seems highly questionable.

The whole extortion/murder for hire story is a bit crazy. As noted above, one user contacted Dread Pirate Roberts, claiming to have hacked another vendor and obtained the details of users, which he’d release if not given $500,000 to pay off another drug supplier. Ulbricht asked the guy who was threatening him, a user who went by the name FriendlyChemist, to put him in touch with that supplier. After FriendlyChemist did so, Ulbricht used the opportunity to try to get that supplier to sell drugs via Silk Road. There was a further discussion, and when FriendlyChemist started getting anxious, the complaint says Ulbricht asked FriendlyChemist’s supplier how much “would be an adequate amount” in order to “put a bounty on his head.” After being quoted a price of $150,000 to $300,000 (rate dependent on “clean” or “not clean”) Ulbricht allegedly complained that the price was high, and noted that he’d previously hired someone to kill someone for $80,000. They eventually agreed to a price of $150,000 (16710 Bitcoins), and Ulbricht was told that the job was done: “Your problem has been taken care of. . . . Rest easy though, because he won’t be blackmailing anyone again. Ever.” Apparently a photo was supplied. The FBI notes that while this supposedly happened in Canada, Canadian law enforcement says that it didn’t happen.

The complaint also notes that Ulbricht has a LinkedIn page which includes a bit of a rant about “using economic theory as a means to abolish the use of coercion and aggression amongst mankind.” It also notes “I am creating an economic simulation to give people a first-hand experience of what it would be like to live in a world without the systemic use of force.” Not sure how one squares that with trying to hire someone to commit murder, but we’ll let others debate that.

It appears that while Ulbricht was mostly careful to cover his tracks, he wasn’t always that careful. The complaint notes that Silk Road was first advertised on different forums by a user named “altoid,” in a manner that indicated altoid was connected with the site. Months later, altoid also posted elsewhere that he was looking to hire an “IT pro in the Bitcoin community” for “a venture backed Bitcoin startup company” — but then told interested people to contact him at his actual gmail address: And, voila, the FBI had a name. Also, later, when Homeland Security officials intercepted a package that contained a bunch of fake IDs for Ulbricht, they showed up at his home in July. While he generally refused to answer questions, he did tell them that “‘hypothetically’ anyone could go onto a website named ‘Silk Road’ on ‘Tor’ and purchase any drugs or fake identity documents….” There was also the above mentioned Stack Overflow account, which (briefly) used his real name and email address, which indicated that he was working on a Tor hidden service, and posted some code that (in a modified form) was also found on Silk Road.

All in all, there does seem to be a fairly compelling case built against Ulbricht based on this (though, again, we’ve seen in previous DOJ cases where things aren’t always as they seem). At a first glance, they have a lot of evidence on him. However, some questions do remain. At the beginning of the post, we mentioned the whole thing where the FBI was using malware to identify Tor users… but, of course, that doesn’t show up anywhere in the complaint. Instead, the big “breakthrough” was when a “random border search” by DHS turned up those fake identities intended for Ulbricht. However, as Parker Higgins notes, it seems like this could be a case of “parallel construction” whereby the hacking revealed those details, and DHS was then tipped off to check packages sent to Ulbricht, seeking to create “parallel construction” of evidence, in order to launder the fact that the FBI had hacked its way into identifying Tor users. After all, we’d just reported on how the FBI was actively trying to avoid revealing its hacking/malware powers to technologically sophisticated individuals.

Either way, we’re sure that there will be plenty more news on this case.

The whole sealed complaint is available on the next page…

How a Purse Snatching Led to the Legal Justification for NSA Domestic Spying

It began as an ordinary purse snatching. On an early Baltimore morning in 1976, a local street thug crouched alongside his green Monte Carlo, pretending to change a flat, biding his time. Finally, a young woman passed by walking alone to her suburban home. Smith wrenched her handbag from her grasp, jumped into his car and tore off down the street before the young victim could glimpse his license plate.

The perp, Michael Lee Smith, was apprehended weeks later, thanks in part to the police department’s use of a machine known as a “pen register” to track the threatening phone calls the assailant had started making to his victim. The court wrangling that followed, however, would continue for three years, and eventually land on the docket of the U.S. Supreme Court. In 1979 the court upheld Smith’s conviction, and his 10-year prison term.

Almost 35 years later, the court’s decision — in a case involving the recording of a single individual’s phone records — turns out to be the basis for a legal rationale justifying governmental spying on virtually all Americans. Smith v. Maryland, as the case is titled, set the binding precedent for what we now call metadata surveillance. That, in turn, has recently been revealed to be the keystone of the National Security Agency’s bulk collection of U.S. telephone data, in which the government chronicles every phone call originating or terminating in the United States, all in the name of the war on terror.

“When they started quoting Smith in the NSA investigation and inquiry, I was flabbergasted,” says James Gitomer, who was one of Smith’s two lawyers at the Supreme Court. ”I don’t think this case should be used as the foundation to justify the NSA. It doesn’t apply.”

To understand how a purse snatching led to the NSA’s controversial program, you have to look at Smith’s behavior after he made off with his victim’s bag. Smith became obsessed with the woman he mugged, and began terrorizing her with threatening phone calls after the robbery.

The victim called the police, and told them she’d spotted the purse-snatcher’s car driving past her residence. A beat cop started patrolling the area. According to court records, that cop happened to be in the vicinity of the victim’s residence when Smith himself accidentally locked his keys in his car. He sought the assistance of the officer to help him unlock the door of the Monte Carlo.

The officer “took the license number of the vehicle, learned that it was registered to … Smith, and so notified other investigating police officers,” according to records. (.pdf)

That’s where things got interesting from a legal point of view. Using a subpoena issued by the prosecutor, and not a probable-cause warrant signed by a judge, the authorities demanded that the local phone company begin making a record of every phone call originating from Smith’s home phone.

Chesapeake and Potomac Telephone Company did so using the state of the art in telephonic surveillance at the time: a device known as a pen register.

The pen register was first described in Samuel Morse’s 1840 telegraph patent. It’s a fully automatic Morse Code receiver that used a pen to mark dots and dashes on a spool of paper tape, in theory replacing human operators at the receiving end of a telegram. In practice, the mechanical technology proved too slow to keep up with an adept telegraph operator.

But the pen register enjoyed a second life as a phone-spying device. Attached to a phone line, it would mark a single dash for each pulse from a rotary spin dial, producing an accurate record of every phone number dialed. Later models moved past paper tape to print out the actual digits with time and date stamps. By the 1970s, they could even handle Touch Tones.

The pen register was attached to Smith’s line at the phone company central office for two days, and it showed him dialing the victim’s number, providing all the evidence police needed for an arrest.

The woman identified Smith in a lineup. He was convicted of robbery and related charges.

Here is an audio transcript of the Supreme Court’s oral arguments in Smith v. Maryland held March 28, 1979. Courtesy of The Oyez Project at IIT Chicago-Kent College of Law.

In his appeals, Smith argued that the Fourth Amendment — which grants people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” — applied to the telephone numbers he dialed. The government, he argued, can’t start recording that information without a warrant issued by a judge on the same “probable cause” standard used to get a search warrant.

Stephen Sachs, Maryland’s attorney general at the time, argued the other side before the Supreme Court. Citing an earlier case involving a Georgia bootlegger undone by his bank records, Sachs insisted that Americans have no legitimate expectation of privacy in information they transmit to a business — in this case the phone company.

On June 20, 1979, the high court issued its 5-3 opinion in Smith v. Maryland, ruling against Smith.

Writing for the majority, Justice Harry Blackmun:


And thus, a digit-collection device attached to a lone purse snatcher’s telephone set the legal precedent used, three decades later, to justify the bulk collection of the same information on every single American. Nobody is more surprised by the long-term ramifications of the case than the prosecutor who won it.

“It was a routine robbery case. The circumstances are radically different today. There wasn’t anything remotely [like] a massive surveillance of citizens’ phone calls or communications,” Sachs says. “To extend it to what we now know as massive surveillance, in my personal view, is a bridge too far. It certainly wasn’t contemplated by those involved in Smith.”

Justice Potter Stewart, writing a dissent in Smith v. Maryland, eerily anticipated today’s discussions about the revelatory nature of phone metadata:


Today, Smith provides constitutional cover for a legion of federal and state laws that enable authorities from the FBI down to the local sheriff to compel banks, hospitals, bookstores, telecommunications companies, and even utilities and internet service providers — virtually all businesses — to hand over sensitive data on individuals or corporations, without having to show probable cause that the target is a criminal, or even that a crime was committed.But the most dramatic citation of the Smith precedent was, until the Edward Snowden leaks, a secret one.

In a 2006 update to the Patriot Act’s Section 215, Congress allowed the secret Foreign Intelligence Surveillance Court to authorize warrants for most any type of “tangible” records, including those held by banks, doctors and phone companies. And the federal authorities only need to show that the information is “relevant” to an authorized investigation.

Unbeknownst to the public, the NSA, FBI and the Foreign Intelligence Surveillance Court all interpreted the authority as allowing indiscriminate bulk collection. The secret interpretation surfaced only last June, when the Guardian newspaper published the first of the Snowden leaks: a classified opinion from the secret court requiring Verizon to provide the NSA with a complete set of U.S. telephone metadata — all phone numbers of both parties involved in all calls, the international mobile subscriber identity number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.

The government confirmed the authenticity of the document, and has since said the same secret orders are issued every three months for all U.S. carriers.

To fend off criticism of the program and to show that it was legal, the Obama administration released a “White Paper” (.pdf) in August outlining the legal basis for the spying, specifically citing Smith v. Maryland. “[T]he Supreme Court held that the Government’s collection of dialed telephone numbers from a telephone company did not constitute a search of [Smith] under the Fourth Amendment,” the administration noted, “because persons making phone calls lack a reasonable expectation of privacy in the numbers they call.”

In a rare declassified opinion (.pdf) from the FISA court released August 29, Judge Claire V. Eagan addressed the key point: If it’s legal to spy on a single purse snatcher without a warrant, then it’s legal to spy on literally everyone.

“Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence,” Eagan wrote.

Testifying last week before the Senate Intelligence Committee, Deputy Attorney General James Cole defended the administration’s reliance on an old precedent involving ancient technology. But he cited Eagan’s opinion to shore up support that the spy program was lawful:

“Some have questioned the applicability of Smith because it was issued over 30 years ago, and it did not concern a situation where the government collected and retained bulk metadata and aggregated it all in one place,” he told senators. “However, the recent opinion of the FISA court addressed that specific issue.”

Congress isn’t likely to withdraw the Patriot Act authority behind the metadata program, either, despite pending legislation in the Senate. The House already flatly rejected a proposal to do so even though the author of the Patriot Act — Rep. Jim Sensenbrenner (R-Wisconsin) — said the government is abusing the law by collecting records of all telephone calls in the United States.

Sensenbrenner said he never thought every telephone call would become relevant to a terrorism investigation. The government, he said, has advanced a “dangerous version of relevance.”

But in the wake of the Snowden disclosures, privacy advocates are uncharacteristically optimistic that Smith might be ripe for review by the Supreme Court. The American Civil Liberties Union, the Electronic Frontier Foundation and the Electronic Privacy Information Center have all filed federal lawsuits challenging the constitutionality of the bulk surveillance — though they’ll have to surmount the issue of “legal standing” first.

The Smith case is on the mind of today’s Supreme Court. When the justices ruled last year that authorities usually need a court warrant to affix GPS devices to vehicles, Justice Sonia Sotomayor offered a glimmer of hope to privacy activists. Mentioning Smith in a concurring opinion, she wrote “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

“This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor added. “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries, and medications they purchase to online retailers.”

Alexander Abdo, the ACLU attorney challenging the program, said there is a huge difference between short-term, targeted surveillance and indefinite, mass surveillance.

“One way of understanding why the two-day, targeted surveillance in Smith cannot possibly justify the perpetual, dragnet surveillance of every American, is to ask whether the result in that case would have been the same if the phone-records program were at issue,” he says. “In other words, how would the Supreme Court have decided Smith in 1979 if the government had relied upon a database of every single American’s call records to capture a single criminal? The court would have given a very different answer to that very different question.”

Howard Cardin, the Baltimore attorney who defended Smith in oral arguments before the Supreme Court, recalls it being a “simple” case.

“I don’t think anybody anticipated the far-reaching effect that it has had,” he said.