A MA Superior Court judge has ruled
that the law firm Holland & Knight could
not be sued by investors for failing to ensure that one of their
clients followed their legal advice (the client ignored his lawyers
and proceeded to defraud the investors in a Ponzi scheme--not
exactly in keeping with counsel’s advice).
Holding here in essence: lawyers are not mothers and will not be
held liable for failing to scold and nag until the job is done
In an interesting cell phone data
Supreme Judicial Court of Massachusetts held that law enforcement
must obtain a warrant before using a suspect's cell phone data to
track his movements via GPS. SJC held a warrantless search violated
Article 14 of the Massachusetts Constitution, which bars
unreasonable searches and seizures.
The plaintiff in the case, Shabazz Augustine, was a suspect in a
2004 homicide of his girlfriend. Police obtained his cell phone
records from Sprint that showed what towers were used as he
traveled in Boston. Police relied on a federal law that only
requires “information to be relevant to an
investigation” in order to get the data, as opposed to
requesting a search warrant (and having a judge find probable cause
regarding the target’s involvement in the case).
Practically speaking, the case is somewhat dated: police in most
criminal cases now request warrants for such data anyway.
filed in federal court in Manhattan last
week on behalf of shareholders alleges Chief Executive Jamie Dimon
and 12 other current / former executives and directors were aware
of the Bernie Madoff Ponzi scheme:
“The lawsuit said JPMorgan examined reports that Madoff was
required to produce on the late Norman Levy, a former client of
JPMorgan and Madoff, and that the reports gave the impression that
Madoff was not investing Levy's money or lending him money on
margin. Shipley and Lipp would meet Madoff for lunch from the 1990s
through the 2000s, frequently along with Levy, and raise their
concerns, the complaint said. But in the end, the bank was
"petrified" of losing business from Levy, "an extremely important,
preferred top-tier client" of its private banking unit, the
In a blunt admission in a brief
filed recently in federal
court, lawyers for Google said people have no expectation of
privacy when they send messages to a Gmail account.
Google’s brief said: “Just as a sender of a letter to a
business colleague cannot be surprised that the recipient’s
assistant opens the letter, people who use web-based email today
cannot be surprised if their emails are processed by the
recipient’s [email provider] in the course of delivery.
Indeed, ‘a person has no legitimate expectation of privacy in
information he voluntarily turns over to third
A highly redacted version of the complaint was filed
President Obama continues to talk
reform after pervasive and ongoing criticism of the bulk
surveillance of U.S. citizens revealed by Edward Snowden. One of
the more interesting points is the creation of a public advocate
who would defend a citizens’s right to privacy in the court.
Yet the administration’s defense of the current system, where
supposedly limited information is seized--the widely discussed
“three hop query”--ignores a basic tenet of
investigative research: data trees allow the identification of
millions of people in a 2-3 hop query.
Security researchers who revealed Facebook's shadow profiles
are claiming that Facebook leaked massive amounts of data,
including private phone numbers and other personal data--despite
what Facebook told its users.
Facebook had announced the fix of a bug that inadvertently exposed
the private information of over six million Facebook users. In
addition, Facebook apparently is collected non-user
numbers and email addresses and then matched the data to people.
Here is the technical explanation of how data gets merged over
several sets of databases, and unique links are discovered.
Knowing the information industry, I expect that this data will be
for sale very shortly.
A list of questionable, scholarly,
open-access publishers, also known as “predatory
publishers” is listed here
www.scholarlyoa.com is run by Mr. Jeffrey Beall, a librarian at
Auraria Library, University of Colorado Denver.
Numerous “expert” witnesses have taken left hooks and
straight jabs to their reputations for publishing in these kinds of
journals, which often have no peer review, no identifiable editor,
etc. They do, however, often feature clever use of the word
Mystery author Patricia Cornwell won
$50.9m from financial advisor Anchin, Block & Anchin LLP
have investigated these cases before for financial services
clientele, usually focusing on claims of negligent trading and
breach of fiduciary duty (and whether the client is getting trading
tips elsewhere and acting on them). These cases often stem from the
discrepancy between the signed documents that spell out a
client’s investment goals, and trading done in later years
that might diverge from that plan. A wise advisor should make sure
they amply document the client’s goals, and consent to
The Reid Interview folks offer some
thoughts on using deception during interrogations
. The article
cites case law such as Frazier v. Cupp, 394 U.S. 731 (1969) (which
holds the use of deception must be considered within the totality
of circumstances when deciding the admissibility of a confession)
and Cayward v. Fl., 552 So 2nd 971 (1989) (which compares and
contrasts manufacturing evidence and false verbal
Some recent research of how innocent people may confess to crimes
they did not commit makes this an area worth close monitoring, and
points to the ed
The news is filled with frantic claims
of abuses by federal prosecutor Carmen Ortiz in the Aaron Swartz
case. Some more measured claims are made by retired judge Nancy Gertner
Now, many privacy and security experts are demanding that Congress
rein in prosecutors from overcharging defendants under new federal
statutes that allow them to inject steroids into minor charges and
blow them into major felonies. But the inquiries into the federal
justice system should not stop there.
In December 2012, USA TODAY
reexamined some of the conclusions of a
1990’s PBS Frontline investigation
that shone a spotlight into
the dark corners of the snitch system, where federal agents offer
deals to prisoners in exchange for information. Both inquiries show
that the government regularly pays witnesses to testify--a concept
that instinctively seems immoral and wrong to most people. Paying
for information is a blatant perversion of justice and leads to
lazy and careless work by federal law enforcement.
~ Our office has defended cases where a few hours of research
completely debunked the information provided by another
inmate--claims that seemingly were accepted by federal agents
without any vetting.
~ The rewards paid to informants can include cash, airfare and new
housing. Sometimes, the amount paid for information can approach
$250,000 or more.
This system of paying witnesses for false information is a cancer
in our democracy. Let us now eradicate it.
The Massachusetts Supreme Judicial
Court ruled that police do not need a warrant to search the cell
phone call history of a person arrested in connection with a crime.
The court ruled that police have long been allowed under the
Constitution to search for evidence of a crime on the person and
their belongings when the person is in custody.
“The limited search of the recent call list on the
defendant’s cellular telephone was permissible under both the
Fourth Amendment and [Article 14]’’ of the
state’s Declaration of Rights...” The list of calls
made from a cell phone therefore has no expectation of privacy in
The court specifically left open the question of whether, if the
phone seized had capabilities of storing text messages, emails,
browser histories and photographs, those data troves are also
searchable without a warrant: “We do not suggest that the
assessment necessarily would be the same on different facts, or in
relation to a different type of intrusion into a more complex
cellular telephone or other information storage
Other state courts have gone the other way on this question and a
Supreme Court ruling will be needed to clarify the growing murk.
The Mass. case is COMMONWEALTH vs. Demetrius A. PHIFER. SJC-11242
and full text is found here
Here at the office, the staff has
become quite adept at looking into people’s eyes and telling
when they are lying. Not the sort of thing that makes you popular
at parties, and poker games tend to devolve into bloodbaths, but
lie detection comes in handy in the detective business.
The Center for Nonverbal Studies Gestures in Spokane WA has
compiled a dictionary
of Signs & Body Language Cues to get you
started. Final exam will be reading the face of Bill Belichick.
As we field more calls on electronic
discovery, recall that federal law prohibits electronic
communication services from disclosing “contents of a
communication” [18 USC § 2702] which most courts deem to be
the text of the email or text message. Facebook, Myspace, Twitter
and Linkedln as well as email providers such as Gmail, Yahoo and
Hotmail all fall in the this category.
A criminal subpoena may get you even the content of messages (and
we get this material either from the electronic communication
service providers -- or from the prosecutor) . However in a civil
case, you can subpoena only basic information such as the name of
the user of the account and other identifiers.
A court in Connecticut also explored a new avenue: divorcing
parties may be ordered to exchange Facebook and dating site login
Delighted to announce my crime novel,
Telegraph Hill, was selected to be one of the featured books in the
launch of www.libboo.com
, a new eBook publishing
Book reviews are here
If you enjoy noir crime novels in the vein of Dennis Lehane, James
Lee Burke, and Raymond Chandler, feel free to stop by and take
advantage of special pricing-- all for less than a mocha coffee, or
2 beers at your local dive bar. You can also preview it with a free
We continue to get questions on what
records can be obtained by subpoena or court order to Facebook.
Generally, only a criminal case subpoena or court order will result
in Facebook complying. In that case, we have seen all kinds of data
turned over: photos, wall posts, photos uploaded to a page, lists
of Facebook friends. Perhaps most intriguing and helpful is login
and IP address data--which can be linked to physical addresses in
some other private databases that we (and most PIs)
Note that while these subpoena’s are most often sent by law
enforcement, a defendant is entitled to the same data (just not in
expedited fashion like an on-going investigation might
According to Facebook’s Law Enforcement and Third-Party
Matters (not easily found on the site, in Facebook’s typical
sloppy manner): “Federal law prohibits Facebook from
disclosing user content (such as messages, timeline posts, photos,
etc.) in response to a civil subpoena. Specifically, the Stored
Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook
from disclosing the contents of an account to any non-governmental
entity pursuant to a subpoena or court order.”
The state of Massachusetts recently
passed a health care bill that has an intriguing medical
malpractice angle: the disclosure, apology and offer clause, which
prompts health care providers to give information to patients about
medical errors in a timely manner and offers a timeframe for an
apology and offer of damages. An apology has been shown to be an
incredibly important part to a process that too often lacks any
emotional depth. One intriguing section in the bill might be an
area for future litigation: a doctor's (or hospital’s)
apology is inadmissible in future court proceedings unless the
doctor says something later that contradicts the apology.
on National Registry of Exonerations report
that shows Cook County, Illinois leads the nation in documented
wrongful convictions. The great majority of those cases -- 67 since
1986 -- were handled by the Chicago Police Department.
As the article notes, “That’s a number to be ashamed
of. There are 67 cases in which the Chicago Police collected
"evidence" of serious wrongdoing against a person who turned out to
be innocent....More shocking still is this fact: the Chicago Police
Department has never conducted an investigation, filed disciplinary
charges or imposed discipline on a single police officer for
negligence or any other form of wrongdoing in a single one of these
cases. (Chief) Gerry McCarthy and his predecessors just don't
Massachusetts today unveiled its new
iCORI system for criminal background data. According to the
, some community groups want to cut off
access to this data, citing problems with investigators who go to
courthouses and obtain original records with additional information
about the crimes.
These groups are attacking the very procedures recommended under
federal law and by industry experts to avoid mistakes in background
checks. In effect they want to ban users of iCORi who search out
original documents. In effect, they want to forced employers to act
on a dry sparse records for fear that, say details about, say a
habitual offender who seems to prey on women, should come to light.
sums up the problem with the lack of
national standards for forensic experts. While organizations like
American College of Forensic Examiners International Inc. purport
to test forensic experts, according to the article many of these
“colleges” award certificates after testers take brief
online examinations--sometimes written by people with no background
in the field: According to the article
“Other former employees said it was routine for low-level
staffers to write exams for ACFEI and its related organizations
based on textbooks in subject areas in which they had no
Tania Miller worked for six months as chief association officer for
the American Psychotherapy Association, an ACFEI sister group,
beginning in fall 2010. A few weeks into her job, she said, she was
asked to author an exam to certify forensic counselors. Miller's
background was in marketing and graphic design. She said she
declined to write the exam. ACFEI did not respond to questions
This situation highlights why competent lawyers always conduct a
full background examination of any expert, testing credentials, no
matter how old.
Acquittal in murder case: After 15
months of intensive defense investigation, a jury found our client
Edward Washington not guilty on all charges in the murders of four
people, including a two-year-old boy, during a robbery in September
2010. The Boston Globe
and Boston Herald
reported on the intense pressure
facing families of both the victims and accused during the 6 week
The defense investigation focused on the role of Kimani Washington,
a career criminal whose story about participating in the armed
robbery but leaving the scene before the murders, never made sense
to most court observers. Eyewitness accounts described a
silver/gray SUV with blue license plate driven by a bald headed man
racing from the scene -- a match to Kimani and a Ford Edge he stole
from a victim. Moreover, Kimani’s story changed repeatedly.
Evidence showed he held a grudge against his cousin Edward
Washington and had slashed his face with a cane--a stark contrast
to his description of their relationship as
“beautiful”. Defense lawyers Jack Cunha and Helen
Holcomb were able to use the evidence to thoroughly impeach Kimani
at trial. They also pointed to mistakes such as the Boston Police
arresting Kimani just a few hours after the murders, holding keys
to a silver SUV--but incredibly, failing to test him for gunpowder
residue. Photos of the SUV were taken by some of the
police-controlled security cameras dotting Mattapan, but they were
not preserved by police.
Kimani later fled to New Hampshire where he was arrested. This case
illustrated most graphically the problem with rewarding a
cooperating witness of Kimani’s ilk with a deal that cut
decades off a prison sentence for murder, if he had faced a jury.
Massachusetts reputation as the only state where alimony never ends
is over as of March 1, 2012. The Massachusetts Alimony Reform Act
has addressed the issue of changing financial circumstances, and
places time limits on payments.
Judges can now reduce or terminate alimony to your ex-spouse if he
/ she is living with another person and receiving financial support
from that person.
Cohabiting is defined as keeping a common household with another
person for a continuous period of at least 3 months. The law does
not limit co-habitation to sexual relationships. Reinstatement of
alimony is possible if cohabitation ends however.
If you need evidence to prove that your ex-spouse is living with
someone, supporting them financially, paying rent and groceries,
then we can help. Ensure that you pay only your fair share. Call us
for further details.
In an unusual appellate decision, a
Massachusetts court evaluated how much weight can be given to
inconclusive and sporadic surveillance video of a claimant. In
Maher v Massachusetts
General Hospital Long Term Disability Plan
, the 1st Circuit
Court of Appeals weighed the video evidence in comparison to the
number of days of surveillance to find for a disability
Video evidence showed the claimant employee driving, walking,
jogging, lifting a child, and even flying a kite. Unusual for an
appellate decision, the judges delved into the fact investigation,
noting: “On 10 of the 19 days of surveillance, plaintiff
Maher engaged in no activity.” The court found that “In
over 90 minutes of surveillance, the most damning evidence the MGH
Plan can identify is 15 minutes during which Maher carried a bucket
or pot and 30 minutes during which Maher played with her 3 year old
son in the park.”
The plan administrator viewed the evidence as showing what doctors
had previously concluded: the claimant was not totally disabled.
But the court was not convinced: “ Thus most of the
surveillance, far from contradicting Maher's disability, seems to
confirm her lifestyle as generally housebound with occasional,
Interestingly, the court did not reinstate disability benefits, but
instead returned the case to the administrator for further
evaluation. Defendant’s attorney noted that three different
review boards had found the video evidence did not show the
employee met the definition of disability.
Background checks are getting easier
everyday. Without getting customer consent, and following a
decision by the Federal Trade Commission finding that the company
had engaged in "unfair and deceptive" trade practices, Facebook
announced today that it would make old posts available--even if
archived. The FTC had found many instances where Facebook made
profile information that a user chose to restrict to “Only
Friends” or “Friends of Friends” accessible to
any Platform Applications that the user’s Friends had used.
Seeking to avoid the new Coke
marketing fiasco of the 1980s, the feds are rolling out the
clarification in terms as a “restyled” FRE. Not new,
just better. Enjoy a sip from the folks at Federal
Crack research staff here at Nardizzi
Inc took a break from murders, frauds, infringing websites and
sexual harassers to examine the 2001 Patriot (aka Marshall
Faulk-killing) team, which won the Super Bowl over the Rams. That
team was ranked:
24th in total yards defense.
6th in scoring defense.
Oddly enough the offense had similar ranks: 6th in scoring, 19th in
Point differential was 99.
This year the Patriot defense is:
32nd in total yards defense.
10th in scoring defense.
Offense is 4th scoring, 2nd yards
Point differential is 90.
Scent of a Super Bowl lingers in the winter air...
* 2011 team however no longer employs one Antwan Harris, who
combined in the greatest backyard football play ever, taking a
lateral from Troy Brown after Brown blocked a Steeler field goal
attempt. Harris ran 49 yards for a touchdown in the 2001 AFC
Championship game, sending waves of Steeler fans into an icy
depression (and spiking a notable increase in the Pittsburgh crime
rate as well).
Courtesy of the research staff...
about a database run by U.S. Department of
Health and Human Services that maintains discipline and
medical-malpractice information. Diligent journalists and
investigators could reference the database and, via other sources,
sometimes identify doctors with long histories of being sued or
disciplined for medical malpractice. Neurosurgeon Robert T. Tenny
of Overland Park, Kansas was identified in this manner. His
complaints led to the database being shut down for a time, only to
be relaunched --with users required to promise not to link
information in the database with publicly available information,
like court files. Congress is now looking at the agency’s
role in restricting speech and use of public data.
Judge Young in Liberty Media Holdings,
LLC v. Swarm Sharing Hash File & Does 1 through 38, held "the
constitutional presumption of openness of judicial proceedings"
trumps the privacy claims of defendants, who swarmed to illegally
download and distribute gay pornography. The film (with the winsome
title “Corbin Fisher Amateur College Men Down on the
Farm”) was downloaded illegally; the IP addresses of the
downloaders was used to track and identify them. Young did leave an
opening for defendants: “Nevertheless, should individual
defendants be concerned about being publicly 'outed' as discovery
proceeds, the Court will entertain those arguments on an individual
The FBI pursued a man they called
“the Hacker.” Using a cellphone-tracking device called
Stingray, they focused on a California home and arrested the man.
Stingrays can locate a mobile phone even when it’s not being
used to make a call.
Oddly enough, a price list for Harris Corporation wireless
surveillance products including Stingray was published on the website of the City of Miami. Cost is only
Former Securities and Exchange Commission General
Counsel David Becke
r has been criticized for making decisions
on how victims of Madoff’s Ponzi scheme would recover assets
because his family once had investment with Madoff’s firm.
However, Becker said he disclosed the possible conflict of interest
to the SEC chairman as well as the regulator’s ethics
officer. Both cleared him to participate in the Madoff matter.
case has been resolved resoundingly in favor of
the First Amendment right to publicly to record the activities of
police officers on public business anywhere in the First Circuit.
One quote summarizes the case best: "Glik filmed the defendant
police officers in the Boston Common, the oldest city park in the
United States and the apotheosis of a public forum. In such
traditional public spaces, the rights of the state to limit the
exercise of First Amendment activity are 'sharply
On the MA wiretap law banning secret recordings, the court wrote:
“The presence of probable cause was not even arguable here.
... For the reasons we have discussed, we see no basis in the law
for a reasonable officer to conclude that such a conspicuous act of
recording was 'secret' merely because the officer did not have
actual knowledge of whether audio was being recorded.”
In a Boston Globe piece
, Dennis Maher has moved beyond
the wrongful conviction that took prime years from his freedom.
“I got over losing the 19 years of my life,’’
says Maher, 50, in an even tone. “I don’t try and make
up for it because I can’t. The best that I can do is just go
forward. Don’t hold the anger.’’
In addition to his job at Waste Management, where he started
working one month after his release, Maher speaks publicly at
conferences and other events involved with wrongful convictions and
the importance of access to DNA testing. “It’s part of
the healing process,’’ says Maher. “I enjoy
A former cop turned PI introduced
himself to a witness during an interview. Case involved a contract
dispute in the business session in Suffolk Superior Court. Within
10 second of the introduction, he said: “I’ve been
doing this for a while so let’s start from the top: what is
your Social Security Number?”
Asking someone a question like that does not make them feel warm
and secure. A question like that makes people shut down. It
suggests that the questioner is a clueless conversationalist or a
creepy stalker. Not sure when the trend began for opening with such
questions (“Nice to meet you. How big is your
pancreas?”). But stop it. Now.
The number of lawsuits against Chinese
reverse merger companies nearly tripled since 2010, according to a
study by Stanford Law School Securities Class Action Clearinghouse
and Cornerstone Research. "Securities Class Action Filings: 2011
Mid-Year Assessment," reports that 24 class action lawsuits were
filed against Chinese reverse merger companies in 2011. Reverse
mergers work as follows: a Chinese business is acquired by an
American shell company that is publicly traded. The board then
resigns, a Chinese-appointed board takes control and changes the
company name. Voila: it now can issue new stock to investors, all
without IPO costs and paperwork.
British private investigator Glenn
Mulcaire is at the centre of the News of the World phone-hacking
scandal. He issued a public apology
and attributed mistakes made at the behest
of News as due to "constant demand for results". He released the
statement after his "vilification" following the revelation of the
hacking of a missing schoolgirl's voicemails.
The FBI: the Vault has a redacted but
still interesting fact-filled guide on its website: FBI Domestic
Investigations and Operations Guide (DIOG. It is undergoing a
significant new change granting more power and less oversight to
agents conducting the lowest category of investigations (termed an
“assessment”). Assessments allow agents to look into
people and organizations without any evidence of criminal or
Under current rules, agents must open such an inquiry before they
can search for information about a person in a commercial or law
enforcement database. Under the new rules, agents will be allowed
to search databases without making a record.
The Santa Monica Times
reporting an intriguing story
that a Las Vegas man vacationing in California recognized Whitey
Bulger sitting on a park bench at historic Santa Monica Pier,
chatting with a kid wearing a Boston T-shirt about city
neighborhoods-- in 2008. The man recognized Bulger because he'd
just seen the FBI corruption story featured on an episode of
"America's Most Wanted."
Steve Katz, the show's co-executive producer, confirmed that the
show did get a tip in 2008 that Bulger was in Santa Monica. He
added that the information about Bulger being in Santa Monica was
turned over to authorities. The FBI couldn’t confirm Thursday
whether the agency ever received such a tip.
Client Dennis Maher wrote an op-ed in
and testified this week on a Post-conviction
DNA Access Bill pending before the Joint Committee on the
Judiciary. Maher was exonerated by DNA testing after spending close
to 20 years in prison for rapes he did not commit. This firm later
investigated on his behalf in a civil action, resulting in a
multimillion dollar settlement.
A senior Russian police officer
was cleared of
wrongdoing in prison death of lawyer Sergei Magnitsky, a lawyer
working for UK hedge fund Hermitage Capital Management. A human
rights commission appointed by President Dmitry Medvedev concluded
the police had fabricated the charges against Magnitsky.
The recent insider trading conviction
of billionaire Raj Rajaratnam shows that federal prosecutors will
increasingly be using wiretaps to build fraud cases involving Wall
Street executives. It also signals the growing acceptance by
federal judges that, despite the extraordinary cost and
invasiveness of such procedures (agents are directed to stop
listening when talk turns from business to private--yes, stop the
laughter), wiretaps have reached a kind of critical mass of
acceptance in the surveillance nation we now inhabit.
In a related matter, Massachusetts law enforcement officials are
pushing for a change to antiquated state wiretap laws. An
interesting side note is that if the law is changed, it should
signal the end to a large number of frivolous wiretapping charges
brought against Mass. citizens who are documenting police activity.
The Boston Police Dept. is being sued in a major case on that exact
issue. The case is Glik v. Cunniffe et al., Civil Action No.
The story and video from the arrest is available here
Yahoo has announced
that it will join Google in
stalking Americans electronically in some form for 18 months (Yahoo
had in 2008 reduced the amount of time it retained users’
Internet search data to a mere 90 days). Yahoo plans to extend the
retention period this summer. Retained search data will include
user’s IP addresses and cookies, which means data can be
linked to individual devices or people. After 18 months, Yahoo will
retain most of the data, but anonymize it so it cannot be linked to
Google has a slight variation in their policy which is being
misreported in wake of this story: From Google: “We believe
anonymizing IP addresses after 9 months and cookies in our search
engine logs after 18 months strikes the right balance.”
Stalkers do have some sense of decorum after all.