Personal Privacy Obliterated By Canada

 

Federal Government Is Continuing To Destroy Any Rights of Privacy

Are you worried about your privacy? You should be. The Canadian government intentionally exposes every Canadian to breaches of their privacy. Privacy breaches by the government and others are legislatively encouraged and protected. Access to private information is granted upon request, without a warrant or court order. Information that Canadians believe is entitled to a reasonable expectation of privacy is intentionally exposed.

There is really only one area where the Canadian government does, in fact, protect privacy. The prerequisite for privacy in this country will not surprise you. It occurs only if the information to be protected concerns the operation of the government. The more important the information is to protecting the Government’s image, the more ferociously they protect it from disclosure. Conversely, private information about you is routinely breached. Your telephone calls, emails, banking records, and personal interactions are not protected. The federal government has insidiously wiped out any hope of personal privacy.

The  government’s latest assault on our privacy rights  is found in its  proposed legislation, Bill C-23. If passed into law  the police would be allowed to secretly collect a citizen’s personal data and use it forever  without restriction .  The proposed law would prevent disclosure of the police activity .  The citizen whose data was collected would never be aware  that his/her data has been  taken and preserved by the police .  The proposed law does not provide any remedy  for the person whose  information has been taken .

 

The Liberals And NDP Incredibly Inept In Challenging New Laws

How could this happen? Canadians allowed it to happen. A once proud and tolerant nation embraced the Federal government’s ‘Get Tough on Crime’ legislation. Canadians were supportive of what was billed as anti-crime legislation that simultaneously and secretly trammeled individual privacy rights. The opposition parties have proven passively irresponsible, refusing to challenge the new laws in any meaningful way. Believing that average Canadians have moved further to the right philosophically, the cowardly opposition parties provide no resistance to these dramatic changes to the reasonable expectations of privacy previously enjoyed by Canadians. Now, the problem is everyone’s problem.

 

The Canadian Government Protects Itself Not Its Citizens

The Canadian government prohibits disclosure of its own information whenever it deems the disclosure is contrary to the Government’s interest. Examples of this are plentiful. Negative reviews of drugs produced by powerful pharmaceutical companies are withheld from the public by the government in the interest of maintaining their financial/political support. Information concerning failings by the government to protect Canadians abroad is withheld. Information is withheld concerning government spending on prisons, fighter jets, the Afghan war, and any other expensive, wasteful government projects. Efforts to obtain government information using Canada’s Access to Information Act are regularly thwarted. Applications for disclosure of information meet with lengthy delays, denials, and refusals to process.

The federal government’s political claims of ‘openness and transparency’ are sheer burlesque. The government’s policies are the antithesis of openness and transparency.  The government claims it has a right to probe your emails, telephone conversations, and private documents. Your requests to access government information conversely require: a money order in an envelope, addressed to a non-efficient governmental office created to obstruct your efforts until the information you seek has been deleted from the government’s server. Your denial will be terse and impolite. The information you seek is ‘unavailable.’

 

The ‘Personal Information Protection and Electronic Documents Act: (PIPEDA)’  And ‘Safeguarding Canadians’ Personal Information Act’ Hide A Darker Purpose

The Federal government is all about appearances. The plan: appear transparent; remain impenetrable. The government has a healthy disrespect for the privacy of its citizens. It trusts that Canadians are ignorant of its intrusions on their privacy rights. The government cleverly couches its laws under misleading titles, aimed at sounding innocuous, or subtler and more insidious, supportive of individual privacy. The Personal Information Protection and Electronic Documents Act (“PIPEDA”) is a prime example. The title suggests protection of personal information. The title is disingenuous. Its provisions support disclosure of private information from all its citizens . This legislation flies under the government’s Get Tough on Crime agenda. Under the guise of fighting crime, the government gathers and examines private information that most of its citizens naively believe are truly private.

The Get Tough on Crime agenda is informed not by principle, but by politics and polls. It exploits and deliberately exacerbates the public’s misguided fears that crime is increasing, when crime is actually decreasing. In fact, crime rates have been decreasing steadily for about 22 years. The smug, self-congratulatory tone conveyed by such titles as the Truth in Sentencing Act, or, Standing Up for Victims of White Collar Crime, this agenda has nothing whatsoever to do with truth in sentencing or standing up for victims. The Get Tough on Crime agenda has the unclean odor of politics all over it. It plays to the public’s irrational fears. It flies in the face of an ever-developing and now overwhelming body of literature going to suggest that harsher sentences lead, if anywhere, to the same or more crime, not less. It flies in the face, too, of the accumulated wisdom of our finest judges, who are now being told, in unmistakable terms, that they cannot be trusted to exercise their discretion reasonably, competently, and compassionately. These legislative amendments represent the government, like the crayfish, crawling backwards into the future.

Unlike the Patriot Act, the U. S. law that unabashedly suspends civil liberties in the name of combating terrorism, Canada’s version, PIPEDA, and it’s proposed amendments in Bill C-29 and Bill C-23 and Bill S-4; are all ostensibly aimed at protection of privacy, not combating terrorism. At least that’s what their titles claim. The titles are sanctimonious. The government’s intentions are disingenuous. To believe that the titles accurately reflect the provisions beneath them is to believe a lie.

 

No Safeguards Against Invasions of Privacy

The government claims PIPEDA is designed to ensure that Canadian businesses, organizations or individuals that collect and use your personal information for legitimate business purposes must also manage your information in a way that safeguards your privacy and protects your personal information from ending up in the wrong hands. PIPEDA refers to “personal information” and “protection”. The short title for its amendments is Safeguarding Canadians’ Personal Information Act. Don’t believe either one of them. Their titles confute their stated goals. These laws suspend civil liberties. They expand, not limit, the circumstances where personal information can be collected, used or disclosed without the owner’s knowledge or consent.

The proposed amendments provide several new circumstances where personal information may be disclosed without consent. If personal information is requested to “perform policing services” it may be disclosed. Apparently, the drafters of PIPEDA were not satisfied with the existing “exceptional circumstances” that allowed personal information of Canadians to be disclosed. The existing law permits disclosure without consent, upon request for, “enforcement of any laws of Canada, Province or a foreign country; intelligence gathering related to enforcement of any laws of Canada, a Province or a foreign country and administration of any laws of Canada or a Province.” It’s difficult to imagine what personal information was not available to the police at their whim (or request) under the existing legislation. But the government obviously thought it too restrictive. The proposed amendments do not require any lofty goal like the enforcement of law.

The proposed amendments make the old provisions seem strict by comparison. The proposed legislation checks civil liberties by provisions that only require investigating officers to be performing “policing services” as they gather your personal information from 3rd parties. The information is to be made available to them “upon request”. For greater truth in legislation the acronym PIPEDA should change to PIDPEA: ‘Personal Information Disclosed to Police Everywhere Anytime’. The new law lacks any form of restraint. It removes all impediments to accessing and using private information in any form. The term, “policing services” is not defined in the Act or in the amending Bill. Ostensibly, the janitor at a police precinct is performing policing services according to this law.

While PIPEDA limited the collection, use, and disclosure of your personal information without consent to circumstances where the police were acting under “lawful authority”, the amendments provide specifically that “lawful authority” does not require a subpoena or warrant from a court or relate to the Rules of Court ordering the production of records. Lawful authority is undefined and open-ended. The amending Bill also permits the organization disclosing the information to provide personal information without having to verify that anyone seeking personal information has lawful authority.

PIPEDA already permits voluntary disclosure of personal information to any government institution without the consent of the person affected by the disclosure,  if the organization has reasonable grounds to believe that any law of the Province or the country is/was or may in the future, be broken. Bill C-29 will allow disclosure to anyone (not just government institutions) including other businesses or organizations, without requiring grounds to believe anything related to an actual crime is, has, or will be committed.

 

Bill C-13: The New Grounds: What Might Be Necessary!

Justice Minister Peter MacKay apparently has no difficulty lumping together cyber bullying law with terrorism law. In the face of criticism from Canada’s interim privacy Commissioner, 2 provincial commissioners and at least one parent of a child who committed suicide after being victimized by cyber bullying, MacKay remained adamant that the government’s broad new police surveillance powers are the government’s response to the suicides of Rehtash Parsons, Amanda Todd, James Hubley and others. He said their deaths were a “clarion call for government action– not further study, not delaying it, not allowing experts who may have some other agenda in mind.” The reader can decide for herself whether or not the proposed amendments should lead to the following government action.

This enactment, according to the government’s own website, amends the Criminal Code to provide:

(a) a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet and the recovery of expenses incurred to obtain the removal of such images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images and the restriction of the use of a computer or the Internet by a convicted offender;

(b) the power to make preservation demands and orders to compel the preservation of electronic evidence;

(c) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;

(d) a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications;

(e) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake; and

(f) a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders can be issued by a judge who issues the authorization and by specifying that all documents relating to a request for a related warrant or order are automatically subject to the same rules respecting confidentiality as the request for authorization.

The enactment amends the Canada Evidence Act to ensure that the spouse is a competent and compellable witness for the prosecution with respect to the new offence of non-consensual distribution of intimate images.

It also amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.

Lastly, it amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.

The proposed amendments will, if passed, lead to the most dramatic destruction of privacy in the history of Canada. Privacy as a constitutional right will be extinguished.

Disclosure of private information will be based upon the requesting party’s belief.  The requesting party will always be a member of the  government  or the police. What belief? The information might be necessary to investigate a breach of an agreement, a law, or to prevent, detect or suppress fraud or “to prevent, detect or suppress fraud when it is reasonable to expect that the disclosure with the knowledge or consent of the individual would undermine the ability to prevent, detect or suppress the fraud”. Simply stated, the new law encourages disclosure of private personal information to anyone, for any reason.  The concept of an investigating officer investigating a specific crime  will be gone .

The Canadian government apparently asks, “Who needs terrorism as an excuse to trammel civil liberties?” The Canadian government instead embraces a philosophy that the personal privacy of Canadians will be afforded the disrespect the government believes privacy deserves. Total disrespect. The Canadian government cleverly disguises its disrespect for individual privacy under deceptive legislative titles that refer to “protection” and “safeguarding” personal information. Under these cagey, deceptive banners the government encourages all manner of disclosure of private personal information to anyone for virtually any reason. Disclosures are unencumbered by restrictive provisions. The law represents pre-eminent, unprincipled disrespect for an individual’s privacy.

The Canadian government presumably hopes that Canadians only read their titles. Examination of the contents will prove depressing for anyone who values personal privacy. For Americans, their visceral reaction to 9/11 led to the passage of the Patriot Act. The Patriot Act is an understandable reaction to the senseless tragedies in New York and Washington D.C. on September 11, 2001. For Canada, however, a country once proud of its reputation for individual freedoms and tolerance, the rationale for its laws ensuring an absence of privacy is scarcely discernible.

 

Is the Supreme Court of Canada The Answer?

The Supreme Court of Canada is about to decide a case that may have profound impact upon police authorities having warrantless access to telecom customer data. The case is R. v. Spencer. Spencer was charged with possessing child pornography. He was 19 years of age at the time of his arrest.  PIPEDA played a significant role in his arrest. Although the Act claims to protect personal digital privacy, under its provisions Spencer’s Internet service provider volunteered Spencer’s digital identification. The Act, even without the proposed amendments in Bill C-23, allowed his Internet provider to voluntarily hand over customer data to the police. The only requirement was that a police officer request it for “the purposes of enforcing any law in Canada, a province or a foreign jurisdiction.”

The police claim they witnessed certain behavior that they suspected was illegal. They went to Spencer’s Internet provider and the provider gave the police his IP address. Under PIPEDA no warrant is required. There is no judicial oversight. There is no disclosure to Spencer that he is under investigation or that his private digital data has been turned over to police authorities. The Act proclaiming  protection of privacy rights instead enhances police powers allowing them to search and seize Spencer’s information without judicial oversight.

The Supreme Court of Canada will be asked to decide whether some or all of PIPEDA’s provisions are unconstitutional. Their decision will have an impact on the proposed amendments to PIPEDA to afford the police even greater authority to search and seize private information.

 

Even Canada’s Victims of Crime Fear The Canadian Government’s Motives in Bill C-23

Bill C-23, the Canadian government’s proposed new law to provide easy access to the metadata that Internet service providers have for every call and e-mail by their customers came under fire recently from a most unusual Canadian;  one parent among the parents of 3 Canadian teenagers who committed suicide after they were bullied online. Seeking to score political points from these three tragedies, the Canadian government promised a tough new law against cyber-bullying. But the government took this tragic set of circumstances as an further opportunity to hide some new draconian laws to erode privacy rights that are completely unrelated to cyber-bullying.

Outspoken  Carol Todd, mother of Amanda Todd, one of the victims of cyber-bulling,  stated, “I am troubled by some of these provisions condoning the sharing of Canadians privacy information without proper legal process.” Ms. Todd’s concerns should be the concerns of all Canadians. Todd suggested the government remove the more controversial measures from the Bill so that it could pass with broad agreement. Presently, Internet providers may voluntarily disclose personal information they hold on their subscribers, but many insist upon a court order demanding disclosure thereby taking the decision out of their hands. Todd, an obviously articulate and informed Canadian, said this to the House of Commons committee that’s studying the proposed legislation:

“I don’t want to see our children victimized again by losing privacy rights. I am troubled by some of these provisions condoning the sharing of Canadians’ privacy information without legal process.” and,

“We should not have to choose between our privacy and our safety.”

Ms. Todd could not understand why the Canadian government wants to lump together provisions prohibiting cyber-bullying with anti-terrorism measures. Of course, these new measures are precisely that: incompatibly lumped together for political reasons only. Under the guise of protecting our children from cyber-bullying, the government seeks to pass an array of new laws aimed at infringing privacy rights. The government does so hoping that the average Canadian is not nearly as perceptive as Ms. Todd.(1)

Preventing cyber-bullying and combating terrorism are separate and distinct goals. The government fears it will face serious challenges by knowledgeable Canadians to its proposed ‘terrorism legislation’ and so it “hides” its terrorism provisions that permit organizations to disclose subscriber or customers’ personal information without court order under legislation touted as protection for our children. The government’s proposed law would permit the government to obtain subscriber or customer personal information, without a court order. The disclosures would be kept secret from the people whose information is being shared.

Another Bill proposed by the Canadian government, Bill S-4, known as the Digital Privacy Act, would also allow organizations to disclose subscriber or customer personal information without a court order. If these new laws are passed, personal privacy in Canada will also be non-existent for all digital information.

 

The L.S.U.C.’s Rules of Professional Conduct: A Special Problem for Lawyers

Rule 2 of the Rules of Professional Conduct prohibits disclosure of confidential information without the client’s permission. This rule requires that a lawyer hold a client’s information in strict confidence, subject only to few exceptions. This obligation conflicts with the open-ended, undefined laws of PIPEDA and the various new proposed laws in support. These laws encourage disclosure of private information in virtually every circumstance. What should a lawyer do? The answer: Challenge PIPEDA and any other legislation that encourages disclosure of private information.

Lawyers should make every reasonable effort to keep privileged-communication privileged. This includes using special methods available to lawyers to ensure that solicitor-client communications remain private. There are some methods available to lawyers to maximize privacy. These methods include private, face-to-face meetings with the client, using specialized equipment and software programs to enhance the privacy of telephone or electronic communications.

Edward Snowden, former CIA agent and contractor for the U.S. National Security Agency (the “NSA”) has disclosed how difficult ensuring privacy, while communicating by electronic means, can be. He disclosed the existence of numerous global surveillance programs; many of them run by and for governments, with the co-operation of telecommunication companies. These same governments prosecute our clients. Against these long odds lawyers are required to maintain confidential information.

For lawyers to ensure that communications remain private while using electronic means of communication, including the Internet, special steps must be taken. These steps include stand-alone computers, open source Internet browsers, and dedicated servers. As Edward Snowden so ably demonstrated, electronically communicated information is only as safe as the weakest link in the chain of electronic equipment. Even encrypted messages that pass through unprotected servers or servers that accommodate multiple users leave the information vulnerable to interception. The “handshake” between interconnected computers often provides the portal of access to private information.

Conclusion

In this age of mass surveillance, government secrecy and privacy-breaching legislation present and proposed,  the balance between individual privacy and government’s ability to surreptitiously spy on its citizens, the scales have tipped distinctly in favor of disclosure of private information and NOT the protection of privacy.

 

 

Notes

1. The Minister of Justice is unable to explain the connection between Amanda’s suicide and the wide-ranging legislation proposed by the government http://www.theglobeandmail.com/news/news-video/video-proposed-cyberbullying-bill-touches-on-terrorism-cable-theft/article15537000/#video2id16840402

 

 

 

 

 

 

 

 

 

America: A Violent Intolerant Nation

Yesterday Michael Dunn, a 47-year-old software developer, was found guilty of 3 counts of attempted second-degree murder and 1 count of firing a gun into an occupied car. Because the jury was unable to reach a verdict on the most serious charge, first-degree murder, the judge declared a mistrial on that charge. Attempted murder usually means, ‘tried but failed.’ Michael Dunn did not fail. The bullets he fired killed 17-year-old Jordan Davis. Jordan Davis died because Michael Dunn didn’t like his “thug music.” Michael Dunn’s violent intolerance is commonplace in America today. Dunn was convicted on Jordan’s 19th birthday.

30 years in prison will not defeat Michael Dunn’s arrogance.  He will still think that he should not have been subjected to thug music.  He did not like it. No. Not one little bit. According to the NRA Michael Dunn is a “good guy with a gun.”  In 30 years Dunn will be 77.  Jordan Davis will only ever be 18.

Dunn purchased it legally. He had a constitutional right to carry it. He needed it for his self-protection. America is, of course, a dangerous place to live. There are so many other Michael Dunns in America, armed and dangerous. Michael Dunn would have no way of knowing when another Michael Dunn might confront him. It’s the American dilemma. What do I do if I inadvertently encounter another armed man just like me?  There are so many violent intolerant men in American.

Sound mind only lasts until one of us starts shooting. The NRA defines a ‘good guy with a gun’ as the one who lives to tell about it. His story is always somewhat limited; either insanity or self defense. Better, of course, in Florida. There you get to “stand your ground.”   It’s self-defense with legislative support. Lots of gun-toting, right-wing folks in the Sunshine State.  You better have your wits about you there. Ask George Zimmerman.  Rocket scientists like Zimmerman may get to choose your fate. It’s the law.

If Michael Dunn confronted another Michael Dunn, each bearing their constitutionally-protected firearms, then the quickest to fire would be the “best” guy with a gun.  He’s the one that gets to tell the story. To the NRA this makes sense. To the American politicians that support the NRA, or are afraid to offend their Michael Dunn supporters, this is reasonable. To Tea Party Members, arming up, not down, is coherent political policy. This is democracy. Any nation that does not agree should be bombed into submission, then forced to accept it. It’s the democratic way. Who would not want to be us?

Michael Dunn had a defense. Self-defense. He thought he saw a firearm pointed at him from the SUV. Those were American kids in that SUV. Why would they not be armed? No weapon found in the SUV. You have to be kidding! One wonders: what the hell-kind of kids are these? They can’t be American.  Every one of them could have a gun if they wanted. It’s a constitutional right. There are over 400 million guns in America. Everyone has  a gun right up to the date of their sentencing, or their suicide, if they choose to skip sentencing altogether.

Why would Michael Dunn assume the kids were not carrying? How could he  just assume they were foreigners? They looked American. They were listening to American music. In fact, that’s what pissed him off.  That’s why he fired 10 times.  What’s a good guy with a gun to assume?  Are you telling me they were black foreigners listening to American rap music? Why no guns?  How was he supposed to know?

Perhaps Dunn should have tried the insanity defense. Then he would have had qualified expert witnesses support his bullshit.  There’s strength in more witnesses, specially expert witnesses.  They have impressive credentials and usually haven’t killed anyone prior to testifying. The NRA supports a firm policy of more expert witnesses for good guys with guns.

Michael Dunn didn’t take any chances. Most good guys with a gun know better than to make that mistake.  The NRA supports a firm policy of shoot to kill.  The NRA supports the right to purchase ammunition that expands inside the body to ensure the person shot does not live. Dunn squeezed off 10 shots into that SUV.  The kids were sitting ducks. Immobilized. Ensconced in a motionless vehicle, parked outside a convenience store. That’s more than 3 bullets for each ‘clear and present danger’ confronting Dunn.

Dunn was sure they were American kids. They had to be packing. Foreign kids would never listen to that “thug music.” If Dunn had been a better shot they’d all be dead.  And, there would be fewer prosecution witnesses. The NRA supports a firm policy of fewer prosecution witnesses able to testify against good guys with guns.  It’s the whole idea behind hollow-point ammunition.  The NRA supports a firm policy of the constitutional right to fire deadly ammunition.

The NRA has expressed concern that its gun-toting members should spend more time at the target range improving shooting accuracy. The Tea Party and the Republican base agree. They always agree. The NRA’s campaign on behalf of good guys with guns continues to seek sound policies that protect all Americans from other good guys with guns. Let’s load up they say.  Wonder if they think we should turn the music down.

 

 

Prosecutor’s Swashbuckling Bravado May Have Caused HIs Death and Death of His Wife

The words of Mike McLelland, the District Attorney of Kaufman County Texas, as he stood before the cameras promising to find the murderer(s) of his colleague, Assistant Dist. Atty. Mark Hasse and that he would, “pull you out of whatever hole you’re in” to bring the full weight of our law to bear on you were probably soothing to the residents of Kaufman County. Their District Attorney was not going to let the senseless murder of his friend and colleague Hasse go unpunished–and impliedly McLelland would personally see to it that the punishment was severe, commensurate with the dastardly deed that took his friend’s life. As District Attorney McLelland might be in a position to do exactly as he promised. District attorneys are given considerable power to affect the outcome of trials and the sentences that follow conviction.

Mr. McLelland’s words, however, were sadly reminiscent of another law official’s swashbuckling bravado several years ago in Fort Myers Florida. There, a sheriff’s deputy promised to bring some drug dealers to justice. He would hunt them down. They would not be allowed to roam in his district or place the citizens of his area in jeopardy because of their criminal ways. I remember thinking as I watched the not very subtle threats of this sheriff’s deputy that he was either wittingly or unwittingly making himself the target of the very people he threatened to hunt down. That same evening the police station in Fort Myers Beach was burned. Officials estimated millions of dollars of damage. It struck me that law-enforcement officials, although imbued with significant power, are ill-advised to speak of that power in public as though it were a personal device that can be ratcheted up when they are personally affected by crime. They are, after all, public officials, only entrusted with these significant powers because the public sees fit to entrust them.

This is not to say that Mr. McLelland brought about his own death and the death of his wife. It is only to say that he was an experienced prosecutor. And, as such, McLelland would know that the business of prosecuting crime is not personal. He represents the people of the entire District.The District belongs to the people, not him.

Any eventual prosecution would not be about McLelland’s  personal feelings for his colleague Mark Hasse. Instead, the prosecution would be about a fair representation of the evidence gathered by investigators without regard to his personal relationship with the victim.

Otherwise, Mr. McLelland’s public duty would be to turn the case over to another prosecutor, one less involved and less impassioned by the identity of the victim. Only then does the system operate fairly. Professionally Mr. McLelland would have to exercise a duty of fairness toward the accused, presenting evidence both favorable and unfavorable to the accused as long as McLelland concluded that the evidence was true.

The criminal justice system is not supposed to be about vengeance. Members of the bar, both prosecutors and defense lawyers, are taught that they have a duty to the court. Their duty requires fairness and balance. It requires that they never knowingly mislead the court in any fashion, either factually or in law.

The criminal justice system is therefore never meant to be personal. It is to be just the opposite, fair and impartial. When lawyers find selves in positions where their personal feelings prevent calm reflective independence, they are well advised to disengage themselves from the proceedings. They are unable to fulfill their duties professionally.

There is a well known saying in law. It is: “Justice must not only be done, but be seen to be done.” This phrase encompasses the idea that even the appearance of injustice is not to be tolerated. A prosecutor who threatens to make persons pay heavily for their crime, even before the accused are apprehended and charged might be seen by the court as presenting the appearance of injustice in the role of prosecutor at a later trial.

Unfortunately Mr. McLelland may have paid for his lack of professional distance with his life. But the circumstances of this case will hopefully remind all lawyers functioning in the criminal justice system that they have a duty of dispassionate professionalism.  Nothing less will suffice.

Subway Murders

Two murders in New York city do not an epidemic make.  The brazen nature of these 2 killings that left victims helplessly anticipating a terrifying, painful death, and, the sheer stark horror of each victim’s final moments, will remain hauntingly with all of us, whether we utilize subways or not. For regular users of the subway, however, the thought of such an occurrence is likely their worst nightmare.

In the 1st of the 2, Naeem Davis, 30, pushed 58-year-old Ki-Suck Han, a resident of Queens, in front of an oncoming subway train.  Davis now stands charged with second-degree murder.  In the 2nd killing, Erika Menendez pushed Sunado Sen, a complete stranger, in front of an oncoming 11-car train. Both victims were killed instantly. Both, prior to their death, made futile efforts to escape the deep subway well while others looked on helplessly and motionless.  On the list of preferred ways to die, this would rank lowest on my list. On the list of uncivilized behavior, the actions of the perpetrators would rank highest.

Predictably, each perpetrator advanced an explanation for their cowardly behavior. Erika Menendez is alleged to have said, “I hate Hindus and Muslims ever since 2001 when they put down the twin towers.” Naeem Davis, working on his own version of self-defense, apparently proclaimed that his victim “attacked me first.” The first explanation will no doubt lead to a claim of insanity based on the horrors of 9/11, apparently  impacting more deeply and personally on this woman than millions of others, including those who actually lost loved ones in the 9/11 attack.  The second explanation, equally untenable and unsupportable, will nevertheless be played out in court by some energetic defense lawyer, despite its chance of success hovering somewhere between slim and nil.

The fate of the perpetrators, while important to their families, will have little or no impact on any of us. Two years from now it will be page 23 news in the New York Times. What should, however, have an impact on us is the cavalier attitude of governmental authorities accepting that nothing can be done to prevent such tragedies in the future. New York Mayor Michael Bloomberg, for example, suggested that there is “nothing anyone can do to prevent mentally ill people from pushing innocent victims in front of subway trains.”  Firstly, there is definitely no evidence that either of these perpetrators was or is mentally ill.  Indeed, our law assumes they are not mentally ill and it is they who must establish mental illness based upon evidence acceptable to a jury. They each attempted to escape, a sure sign that they each believed their acts to be morally wrong and contrary to law.

Secondly, and more importantly, lots can be done to prevent intentional killings, accidental falls and just plain mistakes that can lead to these types of horrifying deaths. Inexpensive fences could be erected with gates that open to allow all subway customers to enter only after the subway has arrived and is stationary.  Electronic sensors could be installed at all subway ramps that would automatically cut power or produce warning signals to oncoming trains.  And, of course, as with most allegedly unsolvable problems that are, in fact, solvable, additional subway personnel could be utilized to protect and supervise waiting patrons of the subway.

Mayor Bloomberg is no doubt correct when he suggests that there are many people, particularly in a city the size of New York, who are mentally ill.  All the more reason that active steps must be taken to prevent further deaths. The legal principle that we have a duty to our neighbors to protect them even from their own misfeasance encompasses the idea of forward, preventative planning.  You plan to protect persons from being victimized by any manner of bad conduct, whether fueled by insanity or not.

Frank Calabrese Sr. (a.k.a. Frankie Breeze) is Dead

The Chicago mobster and hit man who allegedly strangled his victims and then slashed their throats

35 years as a criminal defense attorney causes one to have a special interest in crime and those that commit crime.  For many years now I have followed the exploits of Frankie Breeze, the Chicago mobster and hit man, who allegedly strangled his victims and then slashed their throats.  He died on Christmas Day 2012 in a federal prison in North Carolina. While authorities are not releasing the cause of death, during his own testimony in September 2007 at the Family Secrets trial he portrayed himself as a man dying with a “sloppy” enlarged heart.  He definitely did not die of a broken heart.

While Federal authorities have often struggled to obtain evidence that leads to convictions against real mobsters, in the end, Frankie Breeze was handed to them on a silver platter. Omerta, the code of honor among mobsters that guarantees silence and a lack of cooperation with the authorities, is seldom broken.  If broken, the code calls for death to the person who breaks it.  In this case, the code was not just broken; it was shattered in a most unusual way. The key witnesses against Franie Breeze were his 2 sons, Frankie Jr. and Kurt, and his brother Nick (a.k.a. Nickie Breeze). Nickie Breeze was arguably just as dangerous as Frankie, but sensing his own demise based on the disclosures of his nephews, he cut a deal to turn state’s evidence against Frankie to save himself.

Frankie Breeze actually faced 2 criminal trials: the 1st in March 1997 and the 2nd in June 2007.  The 1st was an uneventful affair in the sense that Frankie Breeze and his 2 sons pleaded guilty to racketeering charges related to events from 1978 to 1992.  What was eventful is that while in prison his son Frankie Jr. wrote to Federal authorities offering to assist them in gathering evidence against his father.  Oddly and surprisingly, according to Federal authorities, he asked for nothing in return.  They accepted his offer and he was wired.  Frankie Jr. provided the Federal authorities with the most persuasive evidence available—audiotapes of Frankie Breeze bragging of all the murders he had committed and how he committed them.

Frankie Breeze did not, however, go down without a fight.  Despite what any objective observer would describe as overwhelming inculpatory evidence–his own voice proclaiming his guilt–he took the stand and in less than articulate fashion proclaimed, “Them is all lies”.  In a strange twist of fate, his own words figuratively strangled him and slit his throat.  The jury perhaps believed some of what he said, however, because they only convicted him of 7 of the 18 counts of murder in the indictment.  Perhaps instead their leniency in registering convictions related more to the fact that Frankie Breeze was said to have threatened the prosecutor, Markus Funk, that he was a “fucking dead man” in a way that was clearly audible to them.  They may have felt that some leniency in their decision-making was in order! Efforts by Frankie Breeze to have his convictions overturned after one of the jurors disclosed that that he had heard this threat were denied.

Here are some of the more interesting facts (or should I say allegations?) revealed during the 2007 trial:

  1. Nickie Breeze testified that his brother Frankie was the capo of the Chicago Outfit, a group of mobsters operating on the south side of Chicago that used all manner of intimidation, including extortion and murder, to collect their loan sharking debts. Frankie Breeze reported only to Angelo LaPietra (a.k.a. “The Hook”) the ultimate boss and founder of the Italian American Club;
  2. His son Kurt testified that Frankie Breeze had buried his proceeds of crime at various unknown locations around Chicago. He claimed that his father had stashed “millions” that would likely never be found. Frankie Jr. agreed testifying, “Yeah, he loved to stash cash” and, “he’d put it in 2 places in the same place so that if you found the one you were so happy you didn’t look for the other one.  And he made the one easier to find with less cash in it”;
  3. His son, Frankie Jr. described his father as “deadly” whose method of murder was strangulation but finished with his signature move, a slit throat;
  4. January 28, 2009 Judge Zagel sentenced Frankie Breeze, then 71, to life in prison describing his criminal acts as, “unspeakable”.  Despite the jury’s findings that Frankie Breeze was guilty on only 7 of the 18 alleged murders, the judge sentenced him on 13 murders.

Postscript

Frankie Breeze was not treated as a ‘criminal celebrity’ in prison.  His lawyer, Joe Lopez, filed a court application in 2008 to seek improvements in his state of solitary confinement in Federal prison.  He was, according to his lawyer, treated as though he was a terrorist and subject to “Special Administrative Measures” ( SAM’s).  His lawyer claimed those measures were completely inappropriate and should be reserved only for actual terrorists. He ought not to be treated as Hannibal Lecter, the lawyer claimed, referring to the fictional psychopath in the movie Silence of the Lambs. His quarters in the prison were likened to, “an old mop room” more suitable for “a storage room”.

Frankie Breeze died in a way that TS Eliot would describe, “Not with a bang but a whimper”.