First Amendment Coalition to host media shield law workship following police raid on San Francisco journalist

The First Amendment Coalition and the Society of Professional Journalists’ Northern California chapter will hold a Zoom workshop on California’s shield law for members of the media on June 2, 2020.

The workshop comes more than one year after San Francisco police officers raided the home and office of freelance journalist Bryan Carmody in connection with the publication of leaked documents related to the death of former San Francisco Public Defender Jeff Adachi.

Carmody received the materials from an anonymous source and distributed them to members of the television news media, many of whom used that material in news reports on Adachi’s death.

Though police had warrants to search Carmody’s home and office, judges tossed the warrants and suppressed information obtained from Carmody’s home, office and personal devices. In their rulings, judges determined officers overstepped their bounds because Carmody was a recognized member of the news media and was protected by California’s journalism shield law, which protects reporters from having to disclose anonymous sources used in the course of news-gathering operations.

California’s journalism shield law — one of the toughest in the country — says reporters, editors, producers and other members of the news media cannot be held in contempt for refusing to disclose sources. It protects members of the commercial and non-commercial news media as well as freelancers, bloggers, writers and other journalists equally.

On June 2, the First Amendment Coalition and the Society of Professional Journalists will hold a joint workshop to discuss that shield law and other laws in California and at the federal level that protect the news-gathering and reporting activities of journalists.

The workshop will be held via Zoom and is free and open to the public. Click or tap here for details.

Note: The information in this post is presented for educational and informational purposes only. The Law Office of Mark Reichel neither warrants nor endorses, and is in no way affiliated with, this event or its organizers.

What will court hearings and trials look like after the coronavirus?

Federal courts are preparing for a slow reopening of courthouses for civil jury trials and other matters after weeks of being closed due to the ongoing health crisis brought on by the novel coronavirus COVID-19.

Bloomberg Law reports courthouses in some states that have seen lower rates of COVID-19 infections and deaths are easing into new measures that will see measuring tape, disinfectant and extra jurors become the new norm in courtrooms for at least a little while.

Federal courts are re-opening in different parts of the country on a case-by-case basis. In Texas, a federal ivil trial was scheduled to begin in the first week of June, though the case was eventually settled. Other matters are scheduled to be heard before the court in July, according to Bloomberg.

That’s different from other parts of the country, including Connecticut where the federal court system has delayed all jury trials until September.

In California, routine court matters are being heard through phone and videoconferencing, including arraignments and most hearings. Jury trials are still weeks away at the earliest.

In the federal Eastern District of California, courthouses have been closed and jury cases postponed indefinitely, according to a recent order issued by Chief Judge Kimberly Mueller. The order affects six federal courthouses in Northern and Central California located in Sacramento, Modesto, Fresno, Redding, Bakersfield and Yosemite.

The emergency declaration signed by Mueller on May 13 said jurors won’t be called for service in either criminal or civil cases for the foreseeable future.

In the federal Northern District of California, Chief Judge Phyllis Hamilton also arranged for routine court matters to be conducted through videoconference. An emergency ordered issued in that district, which includes San Francisco, says no civil or criminal jury trials will take place until September 30, 2020 at the earliest.

A photo of Kelvin Atkinson from his profile.

Former Nevada senator wins compassionate release from prison over coronavirus concerns

A former Nevada state lawmaker who was convicted last year on campaign finance violations has won an early release from federal prison due to the ongoing health crisis brought on by the novel coronavirus COVID-19.

Kelvin Atkinson, a Nevada Democrat and the state’s former senate majority leader, was charged with misusing nearly $500,000 in campaign funds between 2010 and 2017. He resigned from the legislature in March 2019 and later pled guilty to the charge.

He was sentenced to 27 months in prison and fined nearly $250,000. He began serving his sentence at the federal prison camp in Atwater, California, a minimum-security facility that houses defendants with low-level criminal convictions.

Federal prisons have been a hotbed of viral COVID-19 infections since the outbreak began in late February.

The satellite prison camp is one of the few federal prisons to report no outbreak of COVID-19, according to information released by the Bureau of Prisons. An adjacent high-security penitentiary also has reported no instances of inmates or staff being infected with the virus.

Other federal prisons in California have reported a steady increase in infections since March. A satellite prison camp and adjacent high-security facility in Lompoc have the highest collective number of inmate infections in the entire Bureau of Prisons system, according to information published by the agency.

The Bureau of Prisons says it is maintaining adequate measures to prevent and screen for COVID-19. In a document called “Correcting Myths and Misinformation about BOP and COVID-19,” prison officials say they’ve provided inmates with cloth masks and are segregating those who experience symptoms of COVID-19 infection.

But in a motion filed in late March, Atkinson said staff at the Atwater prison camp didn’t provide him with adequate cleaning materials and weren’t actively taking temperatures of symptomatic inmates.

In a rebuttal to Atkinson’s motion, the U.S. Attorney’s office wrote the former lawmaker had access to cleaning materials and was more than capable of taking care of himself.

Both Atkinson’s health information and the U.S. Attorney’s rebuttal were filed under seal, but they were referenced by a federal judge in public court documents reviewed by the Nevada Independent.

In mid-April, Judge James Mahan ruled in favor of Atkinson, finding that Atkinson suffered from a “severe illness” and that the COVID-19 outbreak put his life at risk.

Mahan ordered Atkinson released within 72 hours of his order. Atkinson was further ordered to spend two weeks in self-isolation, then spend the remainder of his sentence in home detention.

Ninth Circuit says prisoner can proceed with lawsuit against warden, staff over inmate attack

A Nevada state prisoner who was attacked by an inmate after warning prison officials about death threats made against him should be allowed to proceed with his lawsuit against the warden and other staff, the Ninth Circuit Court of Appeals ruled last month.

In October 2013, inmate Robert Wilk and another prisoner, Ysaquirle Nunley, were housed together in a unit of Nevada’s High Desert State Prison. That month, Wilk complained to a case manager that Nunley had threatened to kill him.

Prison officials moved Wilk to a protective wing of the prison. A few days later, Wilk says he attended a meeting with his case manager, the prison’s warden and an associate warden to discuss where he would be housed next.

Court documents show Wilk agreed to be moved to another unit because he thought he would be protected from Nunley. But the following February, Nunley attacked Wilk. The inmate suffered from a broken nose and damaged eyes, according to his testimony.

In court proceedings, Wilk’s case manager acknowledged moving both men into adjoining units. The prison acknowledged they keep “enemy” lists between rivaling inmates, but the case manager said a clerical error meant Nunley was not added to Wilk’s “enemy” list.

Wilk sued, arguing the prison violated his Eighth Amendment rights by failing to protect him from Nunley.

A district court initially granted a motion by the prison to dismiss Wilk’s case, but the Ninth Circuit reversed this decision in April, saying a “reasonable fact finder” would conclude that the prison was aware of the threat made against Wilks and failed to respond accordingly.

The appellate judges also found that the prison failed to provide discovery evidence to Wilk, including his institutional record. The judges said Wilk was entitled to that evidence and “should have another opportunity to seek the materials he requested previously, which have the potential to identify or exclude the defendants.”

That material could be crucial as two of the three parties being sued by Wilk — the warden and associate warden — have not acknowledged attending the meeting between Wilk and his case manager as Wilk claims.

The appellate court remanded the case back to the district court for further proceedings.

Man wrongly jailed over child porn charges can sue arresting officer, appellate court says

A Kentucky man who was jailed for nearly a year and a half on suspicion of distributing child pornography can proceed with a malicious prosecution claim against his arresting officer, an appellate court affirmed last week.

The case involves David Jones, a Clark County resident who was arrested in December 2013 after detectives executed a search warrant on his home. Police said they suspected Jones used a computer program called Ares to distribute child pornography, noting a detective had obtained evidence from AT&T that linked Jones’ IP address and router to the alleged video.

Jones was indicted by a grand jury on a single count of promoting a sexual performance by a minor under the age of 16. As he sat in jail, police conducted a forensics examination of several computer devices seized during the warrant, including his computer, tablet and cell phone. The examination revealed purported to show Jones installed Ares on his phone, but no evidence of child pornography was present.

Despite the lack of forensic evidence on his phone, Jones remained in custody for more than a year. In late 2014, nearly a year after the search warrant was executed on his home, Jones’ public defender commissioned a forensic examination of their own. That examination also found no evidence of child pornography, and a forensic examiner said he could find no proof that Jones ever installed or used any peer-to-peer software.

One month after the public defender’s forensics report was presented to the court, a judge reduced Jones’ bail. He was released from custody a short time later. By then, he had spent 14 months behind bars.

Prosecutors dropped their case against Jones in April 2015, citing competing examination reports. Jones filed a lawsuit alleging malicious prosecution, accusing prosecutors of withholding exculpatory evidence in his case.

The case went back and forth between the district and appellate court for more than four years before last week’s decision in which a three judge panel sided with Jones, noting that police apparently failed to notify prosecutors about the conflicting forensics report and didn’t fully inform them about a lack of evidence on Jones’ devices.

In the end, it was that lack of evidence that provoked prosecutors to drop their case against Jones. But the appellate court said the first forensics report conducted months earlier should have been enough to release Jones from jail.

At issue is whether officers with the Clark County Sheriff’s Department fully informed prosecutors after the first forensics report came back empty. While police had enough probable cause to arrest Jones in December 2013, the first forensics report eroded much of that probable cause, and Jones should have been set free.

“It could be reasonably inferred that the Commonwealth lacked the evidence it needed to continue its prosecution of Jones once the forensic examination failed to connect Jones’ devices with the video,” the appellate judges wrote. “In fact, the prosecutors admitted that it was the weakness of the [police] forensic report relative to [the defendant’s forensics] report that justified the dismissal of charges.”

But he wasn’t, and the appellate court ruled that prosecutors opened the door for Jones to file his malicious prosecution claim when they testified in an earlier court case that there was a lack of evidence connecting Jones to the video.

The appellate court said there was enough evidence presented by Jones to continue with a malicious prosecution case against the arresting officer, but not against Clark County or its top sheriff. The case was remanded to the district court for a jury trial.

In a separate case, Jones sued Clark County in state court after jail officials sent him a bill for more than $4,000 related to his incarceration. The invoice included a $35 booking fee and a $10 fee for every day spent behind bars.

In that case, Jones argued that he shouldn’t have to pay anything because the charges against him were dropped. But a Kentucky appellate court ruled against him in February, saying state law allows judges to determine on a case-by-case basis if defendants can afford jail fees at the end of their cases.

Federal judge says Florida’s pay-to-vote law for felons is unconstitutional

A Florida law that requires convicted felons to pay legal fees associated with their criminal case before regaining the right to vote was declared unconstitutional by a federal judge on Sunday.

In his 125-page ruling, Judge Robert Hinkle said the law disenfranchises those with criminal backgrounds who are either unable to pay the legal fees or lack the ability to find out how much is owed in their case.

Hinkle said the 24th Amendment to the Constitution prohibits the creation of a poll tax that must be paid in exchange for the right to vote in a federal election. The judge wrote that the Florida law did not explicitly seek to create a poll tax, but by tying a person’s ability to vote to a judgment entered against them in a criminal case, Florida had created a “tax by any other name.”

“The obligations existed separate and apart from, and for reasons unrelated to, voting,” Hinkle wrote.

In 2018, Florida voters approved Amendment 4, a ballot initiative that automatically restored voting rights to state residents with felony convictions. Lawmakers in the Republican-controlled state legislator sought to narrow the applicability of Amendment 4 with Senate Bill 7066 by conditioning a defendant’s restoration of voting rights to the completion of any financial obligations in their criminal case.

The proposed legislation passed in Florida along party lines, with Republican lawmakers favoring the measure and Democratic lawmakers opposing it. The state’s Republican governor, Ron DeSantis, signed the measure into law last summer.

One week after the measure was signed into law, Kelvin Jones, a disabled criminal defendant, filed a lawsuit against DeSantis alleging the law discriminated against poor defendants who were unable to pay monetary fines and other legal fees.

Attorneys and civil advocacy groups working on Jones’ behalf said the law violated the Equal Protection Clause of the Constitution because it disenfranchised African Americans and other minorities who are the most likely to be unable to pay financial judgments in criminal cases.

During a recent trial on the matter, Hinkle said he found it difficult to believe that partisan politics and race didn’t play a factor in the creation and passage of SB 7066.

“Why is it all the Republicans voted ‘yes’ and all the Democrats voted ‘no’?” Hinkle said according to the New York Times. “That is not a coincidence — it would be stunning if someone told me that [lawmakers] did not realize that African-Americans tend to vote Democratic more than Republican.”

But in his ruling on Sunday, Hinkle acknowledged that the plaintiffs in the case didn’t present enough evidence that showed the measure was motivated by race.

Still, Hinkle said SB 7066 had the opposite effect of what voters apparently intended with the passage of Amendment 4 — to make it easier for those with criminal records to vote in elections, not harder.

“The voters’ primary motivation plainly was to restore the vote to deserving felons at the appropriate time — to show a measure of forgiveness and to welcome even felons back into the electorate,” Hinkle wrote. “The sentiment is hardly surprising: Forgiveness is a sentiment that appeals to most voters and has long been a mainstay of the state’s most popular religions. … Before Amendment 4, no state disenfranchised as large a portion of the electorate as Florida.”

Voters likely didn’t know how much those with criminal convictions were required to pay in fines and restitution, Hinkle wrote. It turns out, many defendants also don’t know how much is owed because Florida does not have an adequate process for defendants to get that information, the judge said.

Last October, when Hinkle issued a temporary injunction in the case, he ordered state officials to create a system allowing those with criminal judgments to learn about any outstanding balance owed and whether they were eligible to have their voting rights restored. If state officials couldn’t provide that information upon request within a three-week period, the state had to permit those with convictions to register to vote, Hinkle ruled.

The decision on Sunday makes that injunction permanent and codifies that information system going forward, though Hinkle acknowledged the legal fight over SB 7066 is likely to escalate.

It isn’t clear how long that fight could take or whether it might have an effect on the upcoming presidential election, but advocates are seeing the judge’s order as a victory for now.

“We will have our voices heard and people will have to have conversations with us if they want to get in office and stay in office,” Desmond Meade, an official with the Florida Rights Restoration Commission, told Spectrum News 13 on Sunday.

Another group called the judge’s ruling a “watershed moment in election law.”

“States can no longer deny people access to the ballot box based on unpaid court costs and fees, nor can they condition rights restoration on restitution and fines that a person cannot afford to pay,” Paul Smith, an executive with the Campaign Legal Center, told NPR News.

The majority of states restore voting rights to those with felony convictions. Some require a person complete their criminal sentence, while others restore rights the moment a person walks out of prison.

In California, residents who are serving time in federal or state prison cannot register to vote, nor can those who are incarcerated in county jail after being convicted of a felony. But residents who are in county jail after being convicted of a misdemeanor can register to vote.

California also allows those with felony convictions who are on probation, mandatory supervision or post-release community supervision to register to vote. Defendants who have served their time in federal prison and are on federal supervised release are also allowed to register to vote.

Two states — Maine and Vermont — never revoke a resident’s right to vote, even if they are incarcerated for a crime, while three states — Iowa, Kentucky and Virginia — permanently ban defendants with felony convictions from voting.

CNN scores small victory in lawsuit brought by Devin Nunes as judge agrees to move case

Cable news giant CNN secured a small victory last week in a defamation lawsuit brought by U.S. Representative Devin Nunes of California.

On Friday, a federal judge in Virginia agreed to move the lawsuit to New York after determining there was “no logical connection” between the parties and the lawsuit’s original filing in Richmond.

It marks the first time a judge has agreed to move one of Nunes’ many lawsuits from one venue to another, the Fresno Bee reported.

Nunes, described by the New York Law Journal as a “staunch defender of President Donald Trump in the Congress,” sued CNN after the news organization published a story last November allegedly linking Nunes to Ukrainian Prosecutor Viktor Shokin during an off-the-books trip to Vienna in 2018.

CNN said it received information about the meeting from an attorney representing an indicted associate of Trump’s personal lawyer and advisor Rudy Giuliani. The meeting between Nunes and Shokin focused on “digging up dirt on Joe Biden,” the presumptive Democratic nominee for president, CNN reported.

Nunes disputed the CNN report, telling another news publication the accusation was “demonstrably false.” He later released photos he said proved he was not in Vienna when CNN’s source claimed he visited.

Nunes is a highly-litigious politician whose targets for lawsuits have included  Hearst and the magazine Esquire; newspaper giant McClatchy Corporation and its subsidiary paper the Fresno Bee; political opposition research firm Fusion GPS; and a parody Twitter account whose author masquerades as a fictitious cow. In the latter suit, Nunes filed against Twitter in an apparent attempt to unmask whoever was responsible for the day-to-day operations of the account.

The congressman has filed most of his lawsuits over the last three years in Virginia. In the lawsuit against CNN, Judge Robert E. Payne warned Nunes and his attorney against the apparent practice of “forum shopping” — a practice where litigants try to have their case heard in a certain court based on an apparent belief that a judge or jury might rule in their favor.

“The Court cannot stand as a willing repository for cases which have no real nexus to this district,” Payne wrote in his decision.

Nunes, who represents the Fresno area, has not filed any of his defamation lawsuits in California. The exact reasons for this are unclear, though legal experts suspect Nunes may find the odds against him due to a state law that limits lawsuit over free speech and expression.

The law, known as Anti-SLAPP (Strategic Lawsuit Against Public Participation), allows defendants to move for a quick dismissal as well as any legal fees associated with responding to a lawsuit.

Earlier this year, lawmakers in Virginia passed separate bills — Senate Bill 375 and House Bill 759 — mirroring California’s Anti-SLAPP law earlier this year. But when it came time for each chamber to hear the other’s Anti-SLAPP bill, both chamber re-wrote the other’s bill, and the overall proposal stalled.

State Senator John Edwards pledged to revive the bill during next year’s legislative session.