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Well, I sent out my first DMCA take-down notice last week when law.hukuni.net republished one of my blog posts without permission.  For those of you who don’t know, a DMCA take-down notice is a legal warning that you send to a website that infringes on copyrighted material, and the notice is usually sent to the webhoster, and sometimes the search engines too.  So here is how it went.

Last Sunday,  I posted a new blog post about going to court on a marijuana charges.  A reader informed me that my blog post had been republished on hukuki.net, and that the hukuki.net version was coming up first in Google.  I looked up where the hukuki.net domain was registered on whois.net, which led me to this page, which gave me the contact info for where to send this threatening letter.

I am the copyright owner of the article being infringed at:

//law.hukuki.net/charged-with-marijuana-possession-here-are-9-things-you-should-know-before-your-arraignment.htm

The article is a direct infringement of //www.grahamlawyerblog.com/2011/06/05/charged-with-marijuana-possession-here-are-9-things-you-should-know-before-your-arraignment/  which is owned by me.

This letter is official notification under the provisions of Section 512(c) of the Digital Millennium Copyright Act (“DMCA”) to effect removal of the above-reported infringements. I request that you immediately issue a cancellation message as specified in RFC 1036 for the specified postings and prevent the infringer, who is identified by its Web address, from posting the infringing article to your servers in the future. Please be advised that law requires you, as a service provider, to “expeditiously remove or disable access to” the infringing writing upon receiving this notice. Noncompliance may result in a loss of immunity for liability under the DMCA.

I have a good faith belief that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law. The information provided here is accurate to the best of my knowledge. I swear under penalty of perjury that I am the copyright holder.

Please send me at the address noted below a prompt response indicating the actions you have taken to resolve this matter.

Sincerely,

/s/ Stephen Graham email: steve@grahamdefense.com

When I didn’t hear back right away, I sent a complaint to Google, and they responded:

Hello,

Thank you for your note.

In accordance with the Digital Millennium Copyright Act, we have completed
processing your infringement complaint. The following webpages will be
removed from Google in a few hours:

//law.hukuki.net/charged-with-marijuana-possession-here-are-9-things-you-should-know-before-your-arraignment.htm

Please let us know if we can assist you further.

Regards,
The Google Team

When I clicked on that link I confirmed that Google had, in fact, removed the page.  I was kind of hoping that Google might just nuke the whole hukuki.net site, but I guess that was too much to hope for.  The site law.hukuki.net is kind of like the Napster of law blogs.  All it does, apparently, is just pilfer law- related sites and republish the articles.   Then I went back online today, and wasn’t able to access any of law.hukuki.net so maybe the whole site has been taken down.

When hukuki.net republished my blog post, it did credit the post back to me with a nofollow link, but at the same time the site was cluttered up with a bunch of do follow links to mesothelioma lawyers. I probably wouldn’t have cared that law.hukuki.net had reprinted my post except for the fact that Google was applying a duplicate content penalty to my site.  And by that I mean that is Google had misidentified my original version as a copy and had ranked the hukuki.net version higher in their search engine.

So my advice to other bloggers would be to complain to Google.  I never did hear back from the hukuki site, which is based in Turkey.

Here are 9 things you should know before you appear for your arraignment if you are charged with marijuana possession.   As a lawyer, I sometimes see people come in on their own and plead guilty without thinking through the consequences. Here are some things to remember:

1. Employment Consequences.

Do you really want to be applying for a job with a criminal conviction on your record? All employment applications ask about criminal convictions, and employers can run instant background checks online.

2. Immigration Consequences.

Convictions for possession of marijuana can lead to deportation if you are not a U.S. citizen.  There are ways to minimize the risk with a properly crafted plea deal, but a person definitely needs the assistance of a lawyer.

3. Chemical Dependency Evaluation.

A judge has the power to insist that you obtain a drug/alcohol evaluation, and that you comply with any recommended treatment as a condition of probation.  Yes, recreational pot users can very easily end up in a court-ordered 12-step program that lasts for 6 months, complete with court-ordered U.A. tests.

4. The Loss of Student Loan Eligibility.

If a student is convicted of marijuana possession after receiving Federal student aid money, he or she must notify the Financial Aid department of his college immediately and will become ineligible for further aid.  Many times, however, a student can enter a rehabilitation program that can make him or her eligible for federal financial aid again.

5. Mandatory Minimum Sentences.

Many states still have strict sentencing guidelines even for  possession of small amounts of marijuana. For example, in Washington State there is a mandatory minimum sentence of 24 hours in jail, and a $250 fine for a conviction for possession of marijuana.

6. Entry into Canada.

Getting into Canada can be difficult for Americans with criminal records. Other countries, such as in Europe, are not as picky.

7. Housing.

A drug conviction can make a person ineligible for federally subsidized housing, or can get a person kicked out of their housing.  Questions about drug convictions are also often asked on private rental applications.

8. Child custody.

If you are, or will be, in a child custody dispute in court, be prepared for your ex to bring up any drug convictions you may have.  In addition, drug convictions can make you ineligible to adopt.

9. Welfare and Food Stamps.

A drug conviction can make you ineligible to receive welfare or food stamps.

Proving a marijuana possession charge can actually be pretty hard for a prosecutor.  Despite what some police officers think, the law requires that the State prove “knowing” possession.  So just because a drug was in your car, doesn’t mean that you are the one to be held responsible.  Additionally, a prosecution requires that a scientist or leaf-identification expert appear personally at the trial to testify that the substance is marijuana. Prosecutors know that jurors are often resentful of their time being wasted on people caught with small amounts of marijuana.

What would come of our nation’s marijuana laws if everyone insisted on a jury trial?

(See past blog posts about marijuana, and other tips for arraignments.)

What do you think about this subject?

Many school kids are wearing “I Love Boobies” bracelets in memory of a relative who has died of cancer, or in support of a cancer survivor in their family. Why isn’t more being done to support these students?

Schools are continuing to try to ban the controversial “I Love Boobies” bracelets, even after a federal court in Pennsylvania ruled that such bracelets were protected by the first amendment.  How can they do that?  Well, what we find in the Pennsylvania court’s 40-page opinion is that the judge ruled that the particular school district in question failed to prove a “well-founded expectation of material and substantial disruption from wearing these bracelets….”  So other school districts are apparently spending their limited financial resources on lawyers they hope will make a better case for them.  Case in point, the Watertown School District of Massachusetts, which banned the bracelets recently and will soon face a court challenge.  Since I first blogged about the “Boobies” bracelets last October, I have received a handful of emails every month from students looking to fight their schools.  My advice is as follows.

• Step one: Read your student handbook for appeal procedures on any disciplinary action you receive (e.g. detention or suspension).
• Step two: Write the appeal letter and deliver it.  (Most appeal procedures first require a hearing in front of the principal, and then the school board.)
• Step three: Contact the media.  Look up newspapers and local T.V. stations online, and email them.  Many schools will back down from the embarrassment of such a ban.
• Step four: If that doesn’t work, call your local chapter of the ACLU.

As a lawyer who has actually represented school districts before, my advice to schools is:  “Give it up!”   You school districts won’t win, even if you take the case to the Supreme Court! Here is why the schools won’t win on this: the bracelets will never be shown to be sufficiently “disruptive” to justify a ban, particularly now that the bracelets are so commonplace.  While at first the bracelets may have led to snickers, now they are so common as to be boring.  And school districts are forgetting the fundamental rule of American popular culture.   First something is trendy, then it goes mainstream, then it becomes universally hated.  By the time your lawyers finish proof-reading their legal briefs, the “I Love Boobies!” bracelets will be cast aside for another trend.

For prior blog posts on other First Amendment issues in school, check out here, here, and here.

Let’s face it.  When you are in high school and living with your parents, you really don’t have any right to privacy in your bedroom.  But you are in college now, and you do have a recognized constitutional right to privacy in your dorm room.  Here is how it works:

1. Police Searches. For purposes of a search by the police, college students have the same right to privacy as they would in a private apartment.  In addition, courts also question the authority of the police to be in the hallway outside a dorm room.  After all, dormitory hallways are not open to the public.

2. Search by College Staff. Usually college rules provide that university staff (such as resident assistants and the maintenance crew) can conduct a reasonable search of a dorm room.  Check your resident handbook on this.  This usually means a visual search of the premises, but this does not give the school the authority to search through your closets, drawers, or belongings.  These searches cannot be for the primary purpose of aiding in a criminal investigation, and university officials cannot delegate their search authority to local police.

3. When the police and school officials both show up at your door.  School officials will sometimes request that the police accompany them on an inspection for “safety purposes.”  Unless they have a search warrant, the police need to wait outside the opened door.  The police will usually ask the student if they can enter, but you are free to refuse, and the fact that you refused cannot be held against you in court.  Do NOT consent to a search, either verbally or in writing. When two armed police officers stand at your dorm room and ask “We are coming in, o.k.?”, the natural response is to say “alright”. However, that response completely gives up your Fourth Amendment right against unreasonable searches and seizures.

4. Do not volunteer evidence against yourself.   It may be the natural tendency of a college student to be cooperative, but it is best not to produce any evidence against yourself. If the resident director arrives for an “inspection” of your room and discovers a cloud of marijuana smoke, you may feel that there is not much harm that can be done by turning over the drug.  However, that “cooperation” may mean the difference between facing a university disciplinary action, and facing a criminal charge and mandatory court appearance. If you are accused of stealing music over the campus internet service, it may not be in your best interest to turn over your laptop.  If you are confronted by your R.A. for coming home highly intoxicated, it doesn’t help to voluntarily turn over any alcohol, because that gives the authorities actual physical evidence.  The police might imply that your cooperation will result in leniency, but such promises are usually forgotten when the case reaches the prosecuting attorney.

Steve Graham is a criminal defense lawyer who represents many college students accused of crimes.

Well for the last two years, we have relied on the blogging and journalism of Frank Sfarzo on his site Perugia Shock to follow the Amanda Knox case.  Not anymore.  With the stroke of a delete key, Google Inc. caved in to a questionable Italian court order requiring the removal of the blog.  (For more information, check out the story in the West Seattle Herald.)  After all his years fighting the corruption of Giuliano Mignini, all that is left of Frank’s blog is a fine red mist.  When I first read the news, it didn’t exactly make sense because Google can’t really delete websites, it can only remove the pages from its index.  But then I remembered that Frank’s blog is hosted on blogger.com, which is owned by Google.  Google could not take the same steps against blogs hosted independently, like this blog for example. But am I the only one who is surprised by this step that Google has taken?  It seems to be part of a larger trend where Google seems to be going down the drain. Google has been complicit in censorship by the Chinese government in the past, not to mention that the Google search results have been losing the battle against spam the last couple of years. No wonder Google’s stock has been tanking recently.  And in particular, Google seems to let itself get pushed around too much by the Italian government.  Remember the Google execs that were convicted last year because they hosted a video the Italians found offensive?  Or how about last month, when Google was forced to manually fix its autosuggest algorithm because the Italian public was too often searching for the names of Italian politicians with the term “crook” at the end?  Maybe the U.S. State Department needs to step in here.  What if an Iranian court ordered Google to remove a site that criticized Ahmadinejad?  Would google remove that site?  Because I could point them to about 10,000.

Take a look at Google’s Blogger content policy here.  In what way did the Perugia Shock site violate these policies?  I love how the Google policy states: “It is our belief that censoring this content is contrary to a service that bases itself on freedom of expression.”  What a joke.  I think if Google will cave in to censorship orders of foreign governments, then they have a legal duty and obligation to tell blog writers of this fact at the outset.  That way bloggers such as Frank Sfarzo can chose to select other blogging platforms at the very beginning.

The interesting thing about the decision by Google, is that they did not remove all the Perugia Shock posts from their Google index, either in the American Google or the Italian Google.it.  So the the cached pages still exist online, see here for example.  These cached pages won’t last very long, however, because the search engine will quickly re-index the pages within a few weeks.  I heard a rumor from other Amanda Knox supporters tonight on Facebook that Frank Sfarzo might be working right now as we speak on converting his old blog onto a WordPress blog.  Let’s hope he does so.

Those following the harassment of Frank Sfarzo by Italian authorities might not be surprised by the news.  We have seen the thuggish way that he has been treated by Mignini.  But I am still shocked that an American business would be cowed into complying with the court order without a fight.

Like Michelle Moore said on her website a few minutes ago, this step that the Italian court has taken will ultimately hurt Giuliano Mignini and help Amanda Knox and Raffaele Sollecito.  How much longer are we going to allow this nightmare to continue?

The harassment of journalists covering the Amanda Knox case has continued in Italy leading the Committee to Protect Journalists to write to the Italian President.  On April 19th, the group complained in particular about the treatment of independent blogger / journalist Frank Sfarzo at the hands of the Squadra Mobile led by Italian prosecutor Guiliano Mignini.

Frank Sfarzo, who writes the blog Perugia Shock, complained of being routinely assaulted and threatened by the police in Perugia.  The police tried to prevent him from entering the court during the trial of Amanda Knox, seized his cell phone, and rummaged through his notes.  The Squadra Mobile raided his house last September and arrested him, bringing him to the police station where they presented him to an Italian psychiatrist, insisting she declare him insane. To help make their case for insanity, the police cited excerpts from Sfarzo’s reporter’s notebook on the Kercher murder case.  Sfarzo reported:  “They told the doctor that I was pathologically obsessed with the case, that I was so fixated on it I must be insane.”

This kind of reminds me of the human rights violations of Soviet-era Russia. One of the tactics used by Soviet authorities to was to confine their critics in mental hospitals.  By declaring dissidents “insane”, the Soviets could hold them indefinitely, and since no criminal charges were filed, there was no need for a potentially embarrassing public trial.   Russian psychiatrists were bullied into being complicit in this practice.  Luckily, the Italian psychiatrist who examined Sfarzo was not intimidated, and told the Italian police to take a hike.

I won’t recount all the well-documents efforts by Italian prosecutor Guiliano Mignini to silence his critics, but have blogged about them here, here, and here.

The other latest news on the case of Amanda Knox and Raffaele Sollecito pertains to the appeal they have proceeding.  Antonio Curatolo, a witness from the first trial, was back on the witness chair again recently. Curatolo testified in the first trial that he saw Knox and Sollecito in town on the night of the murder of Meredith Kercher.  This contradicted the defendants’ story that they were at home.  But recently, while testifying at the appeal, Antonio Curatolo didn’t seem so sure he had the night right and indicated that he may have been thinking about the day after.  See the blog post by Candace Dempsey.  At the appeal it was also brought forth that Curatolo was a transient who is addicted to heroin.  At the time of his testimony, Curatolo was incarcerated for dealing heroin, thus casting doubt on his veracity.  I am not sure how it works in Italy, but in the U.S., courts are often wary of testimonies from witnesses like Curatolo.  The Ninth Circuit Court of Appeals in San Francisco ruled that it is sometimes appropriate to instruct a jury as follows: “If a witness is a narcotics addict, there are additional reasons why his or her testimony should be considered with great care.  An addict has a constant need for a supply of drugs and for money to support his or her habit, and may also have an abnormal fear of imprisonment in which his or her supply of drugs might be cut off.  There are special circumstances which you may consider in weighing testimony of this kind.  You of course may give the testimony such weight as you think proper, after considering all relevant circumstances.”  See United States v. Burrows, 36 F.3d 875 (9^th Cir. 1994).  Maybe such an instruction in the case of Amanda Knox would have prevented the Italian jury from giving too much weight to Curatolo’s statement.

What do you think about these issues?

Last October we discussed the story of Riverside High School Students Suspended for Wearing “I Love Boobies!” Bracelets”.  At Riverside High School in Spokane, Dakota Jewell and  Zack Jordan were suspended from High School for two days for refusing to remove their bracelets that read “I Love Boobies!”.   In that case, the matter was resolved by a compromise whereby the kids agreed to wear their bracelets inside out.  Well, this week, a federal judge in Pennsylvania ruled that students do have a constitutional right to wear the bracelets in a classroom.  See the court decision.  Apparently the case unfolded when a student wore her bracelet to school in defiance of a ban.  During lunch, a cafeteria monitor noticed her bracelets and summoned a security guard.  The student agreed to take it off, but the next day, with her mom’s encouragement, she again defied the ban.  She was suspended, and she sought a restraining order prohibiting the school from enforcing the ban on the bracelets.  Legal precedent allows a school to ban or prohibit “lewd” speech, but the court found that the “I Love Boobies!” bracelets were not lewd in the context in which they were worn.

Judge Rebecca Baker announced today her plan to retire on October 15th from her position as senior judge in the Ferry / Stevens / Pend Orielle county judicial district.  Judge Baker won the position in a contested election in 1996 against Colville lawyer Andy Braff.  Judge Baker used to serve as the Ferry County District Court judge in Republic, Washington.    Judge Baker was admitted to the Washington State Bar in 1976, and is a graduate of the Boalt Hall School of Law at UC Berkeley.  By law, when a judge retires before her term expires, the governor is charged with appointing a replacement.

When Judge Larry Kristianson retired in 2003,  several local lawyers asked to be considered by then curent Governor Locke.   Some of those lawyers are still around and may express an interest now.  Those lawyers were:  Bob Simeone, Pat Monasmith, Andy Braff, James Von Sauer, and Jim Irwin.  Attorneys Lew Schrawyer,  John Troberg, and Patti St. Clair also expressed an interest in 2003, but have since left the area.  The position involves a lot of driving, because the judge must cover an area that includes Ferry County, Stevens County, and Pend Oreille County.  The judge’s job is to preside over felony criminal cases, hear divorces and child custody matters, probate cases, adoptions, and many real estate disputes.

I first met Rebecca Baker when I was 24-year-old rule 9 intern.  She was then working in private practice in Republic, Washington.  I had a couple of court hearings with her, but mostly I know her from my work as a criminal defense lawyer in her courtroom over the years.

Because medical marijuana is not recognized under federal law, we all know that the federal government always has the power to bring criminal charges.  Any of a number of Spokane’s many dispensaries could be raided by DEA agents at any time. However, the U.S. Attorney Michael C. Ormsby took an interesting approach to the issue today when he issued this press release.  The statement was directed to the building owners that rent commercial space to medical marijuana dispensaries. The press release starts off: “Today, Michael C. Ormsby, United States Attorney for the Eastern District of Washington, announced that he has notified landlords that marijuana stores are illegal and warned them of the penalties they may face.”  The press release continues: “Our goal is to first seek voluntary compliance with the law by notifying property owners of the non-conforming use of their property, with the expectation that they take appropriate action. If they do not, the U.S. Attorney’s Office will determine the appropriate law enforcement response, which could include the forfeiture of the property used to facilitate the crimes,” said Mr. Ormsby.

Am I the only one who thinks this is a little strange?  It just seems to me that if the U.S. Attorney feels something illegal is going on, that he should simply make arrests. But he probably knows marijuana dispensary owners are not easily intimidated, and many dispensaries are run by activists who are prepared to go jail to fight for what they believe in.  So instead, Ormsby threatens the individuals and corporations who are renting the space to the dispensaries. So what happens tomorrow morning? Do these commercial landlords now post eviction notices on the dispensary doors? It is a standard clause in all commercial leases that the tenant may not use the premises to conduct an illegal activity.  Accordingly, there would be grounds under the law for a landlord to tender an eviction notice.  A typical dispensary is usually in a small commercial strip mall in a low-rent part of town.  You have to wonder a little bit about how many dispensary owners fully disclosed to the landlord what their plans were for the rental place.  Many dispensaries have pretty innocuous looking letterhead and business cards.  In this depressed commercial real estate market, landlords are probably just glad to fill the space.  Under the law, the landlords that are probably in the greatest danger of having their buildings seized are the landlords who have charged the dispensaries above-market rent to compensate themselves for the risk.  I think the federal government won’t be too happy if they subpoena the rental records and find that a landlord took twice as much money from a dispensary as they did for the other units.  Likewise, a landlord that permits a grow operation is running a high risk, even if the marijuana being grown is supplying a dispensary.  Even if a landlord is simply leasing a single unit to a dispensary, the federal government is entitled to seek forfeiture on the entire structure.

I suppose from a resources point of view, the prosecutor’s statement makes sense.  It is resource-intensive to raid and prosecute dispensaries.  Medical marijuana activists have lots of support from lawyers, and they are probably inclined to demand jury trials just out of principle.  Commercial landlords, on the other hand, are probably not looking for a fight.

What do you think of the federal prosecutor’s position on this?

In the economically-depressed small towns of the Inland Northwest, local political leaders and the chambers of commerce all live for the day that a new business will come to town.  But when a local woman opened a medical marijuana dispensary in Kettle Falls, Washington, her idea was not well received.  Many in this small, Stevens County town of 1500 people encouraged the city council to deny the dispensary a local business license.  The dispensary was started by Ginny Thiede, a former employee of Spokane dispensary Club Compassion.  Ginny Thiede apparently started her endeavor by explaining some of the basics to local residents. “People who want to use it recreationally will have to go somewhere else,” she said, “This is not a head shop.”  The Kettle Falls dispensary opens in a time of some uncertainty for Eastern Washington dispensaries.  Last month, everyone was watching the outcome of the Scott Shupe trial in Spokane.  Shupe was convicted of running a medical marijuana dispensary in Spokane.  The jury didn’t accept his version of the law that he was simply acting as a caregiver to one patient at a time.  While the Shupe case seems to set a bad precedent, many other dispensaries in Spokane are using better forms that provide greater clarification as to their roll to patients.  One of the problems with running a dispensary is that the views of local prosecutors vary greatly.  For example, the Stevens County prosecutor stated in his blog that: “Marijuana dispensaries are illegal, whether they have a business license or not.”  However, the elected prosecutor from King County has stated that he believes dispensaries are legal and necessary.  The Obama administration has taken a hands-off approach to marijuana dispensaries that comply with state law.

In the rural parts of Eastern Washington, sick patients face greater obstacles in obtaining marijuana.  Ginny Thiede is providing a valuable service to patients.

See past posts on medical marijuana dispensaries, the taxation, and info on marijuana possession charges.