James Burkhardt’s Techdirt Profile

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  • Sep 16th, 2021 @ 9:28am

    Re: Re: Mistrial is too lenient

    I think you are stetching when the logic is much more simple.

    A mistrial is declared in most jurisdictions when "....there occurs
    during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case".

    A judge could, and has, determined prosecutorial misconduct is so severe, has so prejudiced the defendant that no remedy could correct the defect and the charges could not be refiled. (destruction of exculpatory evidence is a reason I know I have seen this happen).

    A judge will prefer, as with a civil case, to allow the charges to be brought again at least once. If the judge keeps declaring a mistrial, the judge is unlikely to accept the continued wasted time on their docket and may dismiss the charges.

    You may see appeals, but most prosecutors will see the writing on the wall if that happens. And you would see appeals if the government lost. I agree Slow Joe Crow is definitely jumping the gun, but I don't think the reason the judge doesn't jump straight to that has anything to do with appeals. The judge doesn't care if there are appeals.

    Why the court doesn't just jump straight to punishing the prosecutor has more to do with what the court does normally when faced with prosecutorial misconduct. They assume the first time is a mistake. Perhaps a habit the judge should give some room to. But having had to restart the case once, the judge is unlikely to be as forgiving in the future. A question of appeals doesn't factor into it.

  • Sep 16th, 2021 @ 8:36am

    Re: Re: Re: Re: Re:

    So the reason i would break it up as I did was this:

    What's the practical difference between spending the rest of your life in jail, having all your assets seized, your reputation dragged through the mud for decades and spending the rest of your life in jail, having all your assets seized, and your reputation dragged through the mud for decades?

    Could they have duplicated "spending the rest of your life in jail" and forgotten the "or" conjuction, completely changing their point? sure. but nothing in any of their replies suggests they made a mistake. The last line of the post, 'I apologize if that last sentence left you cross-eyed but that's very much the point." implies the opposite, that they intended there to be NO DIFFERENCE between the outcomes.

  • Sep 16th, 2021 @ 8:28am

    Re: Re: Re: Re: Re: Re: Indefinine imprisonment

    The AC responce was me, but to make the point again, I am commenting on the backpage case, in which the defendants (the backpage executives) are out on bail and have been for years. They are not poor and can afford bail.

    They also have expensive lawyers who know what they are doing and a judge who already is unhappy with the DOJ's conduct would have been unlikely to accept continued imprisonment of the defendants after such misconduct. If there was another mistrial the judge likely wouldn't have allowed charges to be refiled (aka the judge could dismiss the case with prejudice). There are a few reasons I have seen this done, but the prosecution so prejudicing the defense that a new jury couldn't fix the issue anymore would be a relevant one.

  • Sep 16th, 2021 @ 8:20am

    Re: This is a bigger mess than it seems at first. (as )

    Jurisdiction. Within the US, a law is only a law within the boundaries of the jurisdiction of the governing body. If I go to pahrump and get a prostitute, Las vegas can't arrest me (prosititution is illegal in vegas, but not in nearby pahrump). That is why there are whole discussions in every court case about why the court has jurisdiction. we ignore those procedural bits in discussion because they generally are formalities, but just about every lower court ruling will go through and establish that the court has jurisdiction in the matter, and just about every appealate decision establishes that they are the correct appeals court to address the appeal.

    Yes, the cops can arrest you on bullshit charges, they can also sometimes even go to trial over actions that are not illegal. But as a practical matter, they can do that regardless of you committing a crime. What they can't do is convict you of a crime performed in a different jurisdiction. It is your absolute defense: Even if the claims are true, the court lacks jurisdiction over the alleged criminal conduct, and the prosecutor lacks standing to bring charges.

    Your message is all about state action (thats what it would mean for your home jurisdiction to prosecute youl). But the discussion is about civil matters where your comments might make more sense but civil jurisdictional jurisprudence is complicated enough I can't yet clearly express the distinctions between the tort enforcement cases you are likely thinking of and the mechanisms described here.

    Side note: Judgements are not really the issue yet. As of right now, any suit would fail as unconstitutional. But if that stands, such a claim of unconstitutionality would be an affirmative defense, not a basis for a motion to dismiss, and that might be the case every time because of the way the law is written and the way the court ruled to not issue an injunction. The financial issues are the ruinous cost of defending against civil lawsuits generally and all the ways the law encourages swamping individuals with bad faith or low effort cases.

  • Sep 15th, 2021 @ 10:32am

    Re: Re: Re:

    The government may not file charges deciding that they can't make a case with the judge's restrictions.

    In a trial over the crime supposedly committed by backpage execs, the details of the treatment of trafficked individuals doesn't speak to the crimes backpage might have committed but will poison the jury's ability to be a fact finding body by fueling negative emotional thinking.

    Your response here assumes a guilty verdict and sentencing that results in "spending the rest of your life in jail".

    If the result of the trial is assumed, the mistrial might not matter. But the result of the trial is not predetermined. As you admit when you claim "it's been very clear since day one that the government had no real case", they should not be convicted, and therefore should not be in jail for "the rest of [their] lives". The emotional arguments the DOJ was setting up could undermine that very conclusion. It is one of the ways the DOJ can stack the deck and make a bad case.

    It matters very much that the judge is shutting down that attempt.

  • Sep 14th, 2021 @ 1:49pm

    Re: Re:

    whether or not anything "works" typically has rested on 2 factors. One, how you define what it is supposed to do, and how well it does it.

    The purpose of wearing a cloth mask for the general populace is to catch wet air that might contain viral loads (even if you are unaware you are acting as a typhoid mary). This reduces the virus you release by breathing and reduces other people from getting infected. To this end, cloth masks work. Not 100%, but they work, much as airbags and seatbelts reduce car deaths but do not prevent them entirely. A cloth mask worn for this purpose does not prevent you from catching the virus. It reduces those chances, but not significantly. If preventing your own infection is how you define if the mask you wear works than you have pointed out a scenario they don't work, but that is by redefining what masks are recommended to do.

    Masks are in fact more complicated, because masks come in various types that serve different requirements. Early on, the CDC stated the public shouldn't wear the suddenly in demand and in short supply N95 masks. This mask would help prevent your own infection, if used in the disposable fashion they were designed. But as much more expensive solution that requires specialty manufacturing the short supply makes them a poor solution for the public.

    Given the short supply and the Trump administration policy of preventing panic (as the N95 shortage was already causing), the CDC advised against the use of the n95 mask by the general public. Used shit messaging to do so. But the science does not support masks not working to prevent spread, and real world examples like the contrast of the BLM protests (that showed a lack of associated outbreaks) and events known for right-leaning attendees like Sturgis (where large numbers of cases could be traced) suggests masks play a part in reducing spread in large scale crowds.

    As well, no. The answer is to fact check, as presented in this article. To let everyone know why TAC is wrong, and potentially flag the misinfo. Not to remove it, not to claim he never said it, but to include contradictory information, as we do here with your "Masks don't work" bullshit.

    If you want to try fact check me, please define the metric by which we measure the effectiveness of masks.

  • Sep 13th, 2021 @ 1:18pm

    Re: Something strange.

    "But, much more importantly, it is totally within the right of private companies to moderate how they see fit and interpret their own terms of service."

    If this were true then you dont need 230(?).
    If we are considering that the corps are independent of the gov., we dont need this.
    Then if you consider corps independent of Each other, you really dont need this. as the RIAA/MPAA would have no say in whats shown or published on any site.

    You've missed a major point: 230 is not the immunity. 230 is a legal procedure that allows invalid first amendment lawsuits to be shut down earlier in the process - importantly before discovery. The Malwarebytes case posted today makes this very point.

    Just because you can't win (because 1st amendment) doesn't mean you can't sue.

  • Sep 13th, 2021 @ 8:28am

    Re:

    Writing out "conditions of" immediately proceeding your quote makes the quote much harder to parse. Lets get context, since the context is always the best place to start.

    According to cops.usdoj.gov/:

    "Procedural justice refers to the idea of fairness in the processes that resolve disputes and allocate resources. Procedural justice speaks to four principles, often referred to as the four pillars: fairness in the processes, transparency in actions, opportunities for voice, and impartiality in decision making"
    (Formatting adjusted for clarity)

    And the full context for the quote you make (which is super important to understand its meaning):

    DOJ reported that it awarded an $836,000 grant to the Police Foundation for the development of techniques to automate analysis of body worn camera audio and video data of police and community interactions. In particular, these techniques could.....(2) validate the ratings generated by the automated process using a randomized control trial comparing software ratings of videos to evaluations performed by human raters under conditions of high and low procedural justice.
    (Emphasis mine)

    In context, the "circumstances of [high] procedural justice" would therefore mean when departments and cities implement fair, transparent and impartial processes that give adequate means for the public to have a voice.

    Since procedural justice is about local rules, how much procedural justice exists will vary from region to region with laws, policies, and practices. Some areas have conditions of a high level of procedural justice, or "high procedural justice", and some areas have low levels of procedural justice, or "low procedural justice". The quote implies that they are looking for a system that can help them assess how local procedural justice affects the assessment of body worn camera footage, or to use body cam footage to assess how local procedural justice affects the behavior of officers.

    You both changed the context of the quote making it harder to parse, and seem unclear on the definition of procedural justice used by the DOJ.

  • Sep 10th, 2021 @ 9:15am

    Re: Re: Re:

    While they might not be having a save the dog marches, they fact they don't show up when a human is murdered by cops but will do/say/post more when a dog is shot is rather sad.

    [citation needed]

    Your original claim was people being "more upset", a claim I tried to face by noting that demonstrations aren't happening over dogs, despite the issue being more widespread.

    Your response is to claim that because authoritarian lapdogs think the police are saints and you subjectively see more police killed a dog stories, people will "do" something about dog deaths but not people.

    I would postulate that the reason you see so many posts about dogs is because they are killed an order of magnitude more often. It takes 10 times the deaths to generate questionably more facebook posts. But it isn't upsetting people to the degree that it generates actual action. You know, doing something. I don't see politicians running on the save the dogs police reform ticket. I see plenty running on the save human lives police reform ticket. Some even acting on it.

    I don't actually see any "cops killed my dog" posts being shared nationally. I see "cops killed a dog" posts, sharing a news article. I see far more "Cops killed <insert relation here>" posts sharing , but fewer "Cops killed another person today" posts sharing news articles.

    I Postulate your issue is the press, not necessarily the population, as you have claimed. You've claimed people don't do/say/post as much as they do for dogs, a subjective assertion, but the scale of the actual problem is even worse for dogs as it is for people of color.

    I think we should prioritize actual effort toward saving human lives from cops. But your subjective opinion has not provided a substantial claim that more outrage is directed toward dog deaths, as the dearth of lawsuits, protests or legislative actions toward the dog shooting issue suggests it isn't as important to the populace.

  • Sep 10th, 2021 @ 7:01am

    Re:

    A few facts: I accept the 25-30 dogs killed per day as true.

    According to the Washington Post, they have recorded over 5000 police shootings since 2015. Trying to drill down gave me tells me ~4400 deaths in 4-1/2 years. Exact number of days tracked and deaths would be a bit more effort than I want to put into making this point, So ill say 4400 deaths over 4 years (remember this is ALL reported human deaths in the US).

    From this I can determine Humans, as a whole, are killed by cops at a rate of ~3 per day.

    I can't remember the last time a dogs death made national news. I certainly can't remember the last time a dogs death resulted in a protest against police violence that got news attention.

    On the basis of these facts, I can't agree more people are pissed about the dogs death. Despite dying at a rate 10 times that of humans, dog deaths are more niche than general police violence issues, more niche than police homicide issues, and more niche than black lives matter. Might result in more virtue signalling facebook posts, but it hasn't motivated any save our pets marches in the last decade.

  • Sep 3rd, 2021 @ 10:13am

    Re: suggests

    Also need to question, why do you keep calling it "this Danish study". This study already identifies your subject. Why does its country of origin matter? Is there something about danish people that changes the results? Maybe danish Homogeneity?

    Finally, your issues with self reporting.....are exactly why the word suggests is being used. It isn't proof. What it is, is an avenue for further study that challenges assumptions about what drives negative behavior. They aren't misrepresenting this study as "proving" anything, which seems to be how you are taking it.

  • Sep 3rd, 2021 @ 10:06am

    Re: suggests

    It seems you are dismissing the findings of Alexander Bor, one of the authors of the study and the cited basis for the claims of the article, and have come to differing conclusions. Perhaps you could elucidate where you think the paper goes wrong in its analysis, given the above article cites the author telling you the conclusions of the paper? Important quote below:

    Surprisingly, we found no evidence for this hypothesis. Across four representative samples, we find remarkably high correlations between self-reports of online and offline political hostility. The people hateful on Twitter offend others in face-to-face conversations too

    Your actual analysis that results in disagreement with this finding by one of the study's authors would be helpful. You clearly have the background to know and things like pointing out contradictory studies not selected for use or noting where the chosen studies differed in methodology in material ways would certainly help give your analysis credit, rather than relying on the generic issues with meta-analysis. One way to dodge those issues is to pick and choose well-regarded studies that have similar methodologies to reduce noise from bad studies or those with conflicting methodologies. You'd almost have to pick and choose methodologies to find compatible data, and so barring both would almost seem like an inability to compare studies at all.

  • Sep 2nd, 2021 @ 11:53am

    Re: Re: Re: Takedown notice

    A "notice of claimed infringement" is a description of a communication from the text of the DMCA, not a name. The requirements of a "notice of claimed infringement" do not include that it must at all times be referred to as a "notice of claimed infringement". It is a wordy mess to use in conversation. A "takedown notice" is a colloquial term to shorthand "notice of claimed infringement" because it is unwieldy to use. If you go and look at the actual "takedown notices" google shares, you would find they meet the requirements. They definitely exist and you definitely are arguing that they are using the "wrong words".

    Your rant suggests that a "takedown notice" is always automated, but that is not true. Instead that is why we discuss "automated takedown notices", which contextually is shorthand for an "automated notice of claimed infringement". Techdirt has often noted that automated notices seem to violate the requirements of the law, but that does not mean that automated takedown notices don't exist. It means they are deficent and are not valid takedown notices, but that doesn't mean they don't exist.

  • Sep 2nd, 2021 @ 11:23am

    Re:

    Which would be why Techdirt has already highlighted that the retention requests are very broad, and we should watch closely to make sure any requests, or subpoenas, are more limited in scope. This article is not saying we should be unconcerned about records requests. It is that the threats being used are not legally sound, have no basis in the law, and threaten a group for following the law, rather than those supposedly breaking the law by checks notes issuing a demand that past records be maintained during an investigation which at this point means privacy laws can not have been violated because no records have been shared.

  • Sep 2nd, 2021 @ 11:13am

    Re: Platforms Can't Induce

    ... if FB didn't do any moderation, they could probably escape all liability because they were not even aware of the post...

    This is the end conclusion reached by the logic behind the ruling in Prodigy v Oakmont, the case whose ruling was so bad congress wrote a law to overturn it. Congratulations getting to that conclusion, 20 years later. Of course, to claim the logical decision would be to stop moderating assumes that a lack of moderation would have no effect on the business.

    Evidence from Youtube's various Adpocalypses and Techdirt's own issues with advertisers speaks to the contrary. They wont want ads next to child porn. Pro-Terrorist content. A post with rampant racial slurs.

    This ignores that just hosting, no matter how ignorant, pro-terrorist content, child porn, or instructions on how to get an abortion, is a legal liability until a court rules. Possession of Child Porn is a crime regardless of ignorance. You are still providing material support to terrorists. And its not clear that in the case of the abortion bill that courts would require red flag knowledge (as copyright law does), rather than just the knowledge that the tool is being used, somewhere, to violate the law (as regularly argued by copyright holders).

  • Sep 2nd, 2021 @ 8:18am

    Re:

    McCarthy is not suggesting criminal prosecution for government officials leaking private data. He is suggesting a republican majority could make laws harming companies like AT&T in retaliation for "violating privacy" if they comply with congressional subpoenas, something they legally have to do. McCarthy has taken issue with congress but is not looking to punish congress. The quote you cite is arguing that McCarthy is not targeting the supposedly criminal request. If he wants to stop a congressional information demand, he needs to sue the select committe (like Trump repeatedly did), not threaten AT&T (as McCarthy has)

    You have argued a strawman. Try again.

  • Sep 2nd, 2021 @ 7:57am

    Re: Re: So McCarthy is threatening revenge for helping an invest (as )

    The Mafia doesn't have the command of [a]....police force.

    [Citation Needed]

  • Aug 31st, 2021 @ 10:24am

    Re: Save It For The Water Cooler

    The employers of a public school teacher are the school district. The district reports directly to the voters, as the board members are elected officials. The state government passing a law about curriculum subverts that employer/employee relationship, bypasses the voter's choice for who defines the district curriculum and substitutes state level officials who were chosen for their ability to run a government and uses them as a proxy for the voter-employer, rather than use the local officials chosen for their ability to manage an educational system as said proxy.

    Explicitly, the state legislature defining classroom instruction is not the employer defining the cirriculum, but the state. That may be good to establish broad principles but the law in question proscibes not broad prinicples but requires teachers to walk very fine lines, requiring that any discussion of current events actively avoids talking about how the racism of the past (which they must talk about, by law) continues to affect the modern day (like the origins of the drug war in responces to the civil rights movement, in particular the Voting Rights act of 1965 and the Civil rights act of 1968). Or how modern US penal systems directly descend from the use of Jim Crow to reestablish slavery in the only legal form remaining.

  • Aug 26th, 2021 @ 1:28pm

    Re: Re: Re: Probably Not

    impersonation does not invalidate that an opinion is being shared. Its still an opinion. No, you imply the opinions expressed are not genuine, which means its not about strict bright lines. For you moderation is okay based on your personal subjective opinion, and all your bullshit is just that.

  • Aug 26th, 2021 @ 12:48pm

    Re:

    Social construction of crime. When you steal $100 from an employer, its a crime. When your employer steals $100 from your wages, its a civil matter.

    When you shoot someone, you are assumed a criminal by the police. When a police officer shoots someone, a presumption of lawful action is made.

    And when you falsify evidence its a crime. When a cop falsifies evidence, its just a civil rights violation in the line of duty.

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