In other news:
1. The NY Times covers the government's secret surveillance program and how it's playing out in courts, including our District:
In February, in a 5-to-4 decision that split along ideological lines, the Supreme Court accepted Mr. Verrilli’s assurances and ruled in his favor. Justice Samuel A. Alito Jr., writing for the majority in the case, Clapper v. Amnesty International, all but recited Mr. Verrilli’s representation.
“If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.” (Again, note the phrase “derived from.”)
What has happened since then in actual criminal prosecutions? The opposite of what Mr. Verrilli told the Supreme Court. Federal prosecutors, apparently unaware of his representations, have refused to make the promised disclosures.
In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.
Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.
In the Fort Lauderdale case, Magistrate Judge John J. O’Sullivan ordered the government to disclose whether it had gathered information for the case under the 2008 law. He relied on Justice Alito’s statement in the Clapper decision. The government has moved for reconsideration.
2. I always like FNU LNU stories:
When the man appeared before a federal judge in Manhattan to be sentenced in a drug case, he had a lawyer by his side, supporters in the courtroom and letters attesting to his character. Only one thing was missing: his true identity.
A program from “Fnu Lnu,” an Off Broadway play inspired by a newspaper correction published after the term was mistaken for an actual name.
Throughout his trial and conviction, the defendant had claimed to be someone he was not, and no one had any idea who he really was.
“I sentence people almost every day,” the judge, Richard J. Sullivan, said, “and I will tell you candidly, I am not aware of anybody who has done what you have done in this case.”
Court records had listed the man as “Fnu Lnu,” shorthand for “First name unknown, Last name unknown.” The acronym is often used in the early stages of a criminal case, when investigators cannot identify a voice on a wiretap, or the identity of someone picked up in an immigration sweep.
“Fnu Lnu is a stand-in; he’s the missing man; he’s the defendant you know exists but cannot name,” said Steven M. Cohen, a former federal gangs prosecutor.
But the designation, at once mysterious and common, has taken on a life of its own in courts around the country, with Fnu Lnus being mistaken for an actual name, confusing judges and lawyers, and in one case spawning a memorable newspaper correction and even an Off Broadway play.
At any given time there can be hundreds of Fnu Lnus in the court system. Such defendants’ identities are usually sorted out quickly, through fingerprints or by other means. But in rare cases where defendants have remained anonymous throughout their entire prosecution, defense lawyers end up making arguments that can border on the surreal.
3. Should the AG be commenting on (some say undermining) a jury verdict? From the Washington Post:
With the acquittal of George Zimmerman continuing to reverberate nationwide, Attorney General Eric H. Holder Jr. said Monday he shares concerns about “the tragic, unnecessary shooting death” of an unarmed black teenager in Florida last year, and he vowed to pursue a federal investigation into the matter.
In a speech at the social action luncheon of the Delta Sigma Theta sorority, Holder pledged that the Justice Department would “continue to act in a manner that is consistent with the facts and the law” and would work to “alleviate tensions, address community concerns and promote healing” in response to the case.
“We are determined to meet division and confusion with understanding and compassion — and also with truth,” he said. “We are resolved, as you are, to combat violence involving or directed at young people, to prevent future tragedies and to deal with the underlying attitudes, mistaken beliefs and stereotypes that serve as the basis for these too common incidents. And we will never stop working to ensure that — in every case, in every circumstance, and in every community — justice must be done.”