8 June 2015

You Bet Your Ass I’m Tapped

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“That’s like buying half of a pair of shoes. You need both to get anywhere,” I told Jim Ruane, the lawyer I had forced upon me for my habeas corpus petition, after he subpoenaed only my outgoing calls and none of my incoming, like a telephone line was a street with only one-way foot traffic.

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Tyranny for you is freedom for me.

Telephone records figure prominently in all of my cases. I need my home telephone records to prove two separate claims. First, that I was not the party who called and ordered $40,000,000 diamond necklaces, and second, that I was on the phone with someone else when jurors received calls designed to disrupt my trial on the diamond necklace charge. Phone records can clear me on so many accusations flung at me that I might never have been here – or accused of being crazy – if I had the evidence. Every lawyer before Ruane – and also the police – told me that the records had split, that they expire and disappear one year after the call was made. “Too bad no one caught ‘em in time,” one small town cop guffawed after he supposedly served a warrant on the local telephone company. I know he knew those records would absolve me.

Despite these admonitions that telephone records slip from evidence to inference after one year, Ruane did try to get the phone records I needed to exculpate me. I explained that, on the night of October 4, 2007, I exchanged a volley of calls with the caretaker of a man I represented in front of Social Security at the time. But Ruane subpoenaed only half of my absolution – outgoing- and left my other half – incoming – to the court’s imagination and it pissed me off.image

“Maybe disabled people buy only one shoe?” he offered, an answer to my argumentative analogy.

“Actually, I think they buy both, but use only one. Besides, that’s my point – I’m incapacitated with only one side. I need both to get anywhere with this case,” I said with my lips clenched in frustration and was about to bang the table but I knew a guard might hear me and think I was starting a situation. So I just pumped both fists in the air. Evidence of crazy.

“What can I tell you?” he asked. “I don’t have them.”

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Yeah, I know. The warden already told me.

But someone else does. Most people don’t understand how much Edward Snowden revealed when he let loose the fact that the federal government has been collecting data on our phone calls, monitoring us like a pesky little sister, denying that they act like Big Brother.

Snowden’s big reveal is that the government, in leapfrogging the Fourth Amendment’s prohibition against unlawful searches to gather intelligence to prevent crime, collected a tidy, little cache of data that can exculpate defendants accused of crimes involving phone-related evidence. Like mine. I know mine are in there somewhere. And I want them.

Any many other people’s as well; these days, almost every criminal case involves telephone record evidence. Because of this, Snowden is no whistleblower; he’s a tipster. He’s pointing out evidence with the potential to solve crimes, just not in the way that government wants – in favor of a defendant or even a convicted felon like me.

The government violates citizens’ constitutional rights every day. Police search houses, cars, purses and our bodies without suspicion. They seek approval for wiretaps based on perjured affidavits. We can’t call constitutional violations instances anymore; they are patterns. Outrage erupts when someone someone like Snowden points out the hidden motif in the obvious picture. The uproar over NSA surveillance just encapsulates the American attitude towards any activity related to police investigations and criminal justice: It’s OK until it happens to me.

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…especially if what you were about to say exculpates someone.

The real problem with NSA’s phone surveillance is not how and why they get their data but what they do or don’t do with it. Much like the national registry CODIS (Combined DNA Index System), exculpatory evidence has settled in the bogs of some federal database and no one knew to look for it before Edward Snowden. Even after Snowden, they don’t ask for it if my cases are any indication.

Releasing some of the phone record data held by the NSA would not make their practices any less invasive but it might make their surveillance worth it and truly to the public’s benefit if it clears someone’s name in a criminal case. But the feds don’t want to do that. They would rather watch their citizens hobble around, clueless and shoeless, much like all of my defense attorneys. But we have Snowden-shoes now. If only someone who represents me would pull a pair on.

The phone data the NSA collected could clear someone’s name in a criminal case or even a mere investigation. One of the last women killed by the Long Island serial killer of prostitutes called 911 from a cell phone before she disappeared and died. Tracing outward from her cell phone records would create a web of communication data so wide and so warrantless it would have to produce some leads. But everyone wants the government to avoid violating people’s privacy so they will never use the evidence they have already collected to solve a murder. It doesn’t make sense.

I still don’t have the other half of my needed telephone records but my government does. Until citizens end up in a position like mine, they are loathe to concede any constitutional rights. But I, the one who needs constitutional protection more than others, have actually decided that there are rights I can live without, especially if my life remains as see-through as it is. What does it say about me now that I think that violation isn’t all bad?

(Entry written August 2013)

READER POLL

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From the New York Times: The World Says No to Surveillance, an oped by Edward Snowden

Edward Snowden says that, because the public is now informed and demanded protection of their constitutional rights, the NSA surveillance program established by the Patriot Act has been scrapped.

Do you believe that surveillance started under the Patriot Act has completely ceased?

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Posted June 8, 2015 by chandra in category "Criminal Justice

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