Anonymous Internet Critics II

This blog has covered the defamation lawsuit filed by the Cooley Law School against one if it's more vocal critics from the beginning.  The defamation defendant is one of the legion of graduates that has trashed the law school; in this case, a blog titled "The Thomas M. Cooley Law School Scam".

This is an important privacy law and First Amendment case.  This post brings our readers up-to-date with an important development in the case: oral argument at the Michigan Court of Appeals.

Cooley's defamation suit, pending in the Ingham County Circuit Court, was assigned to Circuit Judge Clinton Canady III. Cooley is represented by the Miller Canfield law firm and the anonymous blogger, using the pseudonym "Rockstar05", is represented by Washington D.C. lawyer Paul Levy of Public Citizen, and Berkeley, MI attorney John Hermann.

For their part, Miller Canfield had been vigorously prosecuting their cause of action, issuing subpoenas in two states [Michigan and California] to the Rockstar05's Internet service provider, seeking to rip the lid off the blogger's identity.

In September and October of last year, hearings were conducted on Rockstar05's motion to quash Cooley's subpoenas.  Somewhere along the way, the internet service provider in California apparently made an inadvertent disclosure of the blogger's identity to the Miller Canfield firm, who immediately moved the court to amend the complaint, seeking to add the now-disclosed individual to the suit.

Judge Canady initially sequestered the pleadings and documents that referenced Rockstar05's identity while it considered supplemental briefings on this First Amendment issue.  The lower court denied Rockstar05's motion to quash the subpoena, providing time for defendant to lodge an interlocutory appeal, and allowing an amicus [various media organizations] to intervene in the case.

Rocktar05 appealed Judge Canady's decision relative to the subpoena, filing this brief on appeal through his [or her; we do not know] high-powered Washington D.C. media lawyer.  For it's part, the media has filed a hard-hitting amicus brief.

Oral arguments were conducted last week at the Michigan Court of Appeals in Lansing.  This blog predicts [hopes] that the Michigan Court of Appeals will decide in favor of the critical blogger.

The primary issue before the intermediate appellate court is whether Cooley must disclose to the trial court a rational litigation-oriented basis to divulge the blogger's identity; something other than revenge.  The blogger's appellate lawyer asked the Court of Appeals to adopt the "developing consensus" standard.  When asked to un-mask an anonymous speaker, this standard would require the trial court to:

• Provide notice to the anonymous speaker and an opportunity to defend the speaker's privacy;
• Require the defamation plaintiff to identify the specific allegedly tortious statements;
• Ensure the defamation plaintiff's complaint sets forth a valid cause of action;
• Require an offer of proof supporting the claims made in the defamation complaint; and
• Balance the relative harms to the plaintiff and defendant as to the anonymity.

For it's part, the Miller Canfield law firm argued on behalf of Cooley that Michigan law does not require a preliminary showing that it is likely to prevail on the merits prior to un-masking the anonymous litigant and blogger's identity.

We here at the Law Blogger will monitor this case and report back to our readers as to how the Court of Appeals decides this privacy law issue.

www.waterfordlegal.com
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Posted in: anonymous blogger,Cooley Law School,defamation,developing consensus standard,evidence,First Amendment,Judge Clinton Canady,Michigan Court of Appeals,Miller Canfield

SCOTUS Erodes Witness Confrontation Requirement

This case was straight out of Detroit.  Anthony Covington was lying next to his car at a gas station, shot in the stomach, bleeding out, but still alive and speaking with the Detroit Police.

Just before he died, he identified Rick Bryant as his shooter.  Bryant's subsequent conviction, based largely on the dying man's identification, went all the way to the SCOTUS and was decided last month.

Conviction affirmed; and in the process, one of the many exceptions to the hearsay rule is broadly expanded at the expense of accused persons everywhere.

The 6-2 decision in Michigan v Bryant erodes the confrontation clause of the Sixth Amendment requiring that all witnesses against an accused be brought to court.  Surprisingly, Justice Sotomayor wrote for the majority; Justice Giinsburg recused herself; and just as surprisingly, Justice Scalia wrote in dissent.

This case is significant to the extent that it allows police officers to testify at a trial about what an out-of-court (i.e. hearsay) witness said when that witness is no longer available for purposes of cross-examination and in-court confrontation.  Whether a dying man's declaration comes into evidence at a criminal trial depends on the "testimonial" nature of his utterance.

Prior SCOTUS decisions have addressed this problem.  Until now, two domestic violence cases established each end of the continuum.

In the well-known case of Davis v Washington, the declarant's statment -made during a 911 call- was admitted because the emergency was ongoing when the statement was made.  The presence of the emergency made the statement non-testimonial and thus, admissible in court even though the declarant was not present at the trial.

On the other hand, when a statement is made after the emergency is extinguished, as in Hammond v Indiana, then such a statement is clearly testimonial; that witness must be brought into court, or the statement is excluded from trial.  The witness in Hammond made her statement from the safety of her home during a subsequent police visit. 

The Bryant Court constructs a complicated two-perspective test to determine the "testimonial" nature of a dying man's declaration.  A reviewing court must now consider both the declarant's primary purpose in uttering the statement, along with the recipient's purpose in receiving the statement.  Say what??

Writing for the dissent, Justice Scalia, not usually a champion for the defense but an ardent supporter of the confrontation clause, thinks the question "is an absurdly easy one".  The murder victim from Detroit, in his last breath, was telling the Detroit Police who shot him so they could apprehend the shooter; not to stop any "emergency".  Therefore, the statement was testimonial in nature and should not be admissible in court according to Scalia's analysis.

Seems like each year SCOTUS issues at least one decision from Detroit and the surrounding area that has a local murder at issue.  Last year it was Warden Berguhis v Thompkins; this year it's Rick Bryant's case.

Kinda sad that we're known for the laws that get spawned from these murders.

http://www.clarkstonlegal.com/

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Posted in: confrontation clause,Detroit,Detroit Police Department,evidence,hearsay evidence,Justice Antonin Scalia,Justice Sonia Sotomayor,SCOTUS,Sixth Amendment,statement,witness