Monday morning

Hope everyone enjoyed their spring break. It's back to work, and here's what's up:

1. Barry Bonds' trial starts today. Apparently, jail isn't at stake, but his legacy is: a jury will be asked to decide whether baseball's home run king set his historic mark while using a long list of banned drugs.
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For Bonds, 46, who has not played baseball since he was indicted, the stakes are high - even though most experts doubt he will face prison if convicted.

In 2008, Bonds' trial judge, Susan Illston, sentenced two defendants who were convicted of lying to authorities about steroids in sports to home confinement, not prison. That sets a baseline for sentencing Bonds if he is convicted, experts say.

The trial represents a chance for Bonds to repair a reputation badly tarnished by his association with the BALCO steroid scandal, and, perhaps, to secure a place in baseball history that might otherwise be denied him.

If Bonds is acquitted, his chances of being elected to the Hall of Fame "go way up," said former Major League Baseball Commissioner Fay Vincent. "But if he gets convicted, it's the end of the discussion for at least 30 years."

Roger Clemens, who is on trial next, will be watching this one closely.

2. Interesting case being argued this morning before the Supremes, Davis v. U.S.. The issue: The good-faith exemption to the exclusionary rule allows evidence collected in violation of the Fourth Amendment to be admitted at trial if the police officers conducting the search acted in good faith. Does the good-faith exception to the exclusionary rule apply to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional?

The case came out of the 11th Circuit, and Orin Kerr of the Volokh Conspiracy will be arguing for Mr. Davis. ScotusBlog has great analysis of the case here.

3. You can bet on one thing in Davis -- Justice Alito will vote with the government. From the Sunday NYT: Alito is the least likely justice to show a glimmer of concern for the rights of criminal defendants. He has ruled for the defense in only 17 percent of the criminal cases he has heard since he joined the court, putting him to the right of Roberts, Scalia, Thomas — and every other justice of the past 65 years other than William Rehnquist...

Strangely, the title of the piece is called: "Mysterious Justice." Nothing mysterious about Alito -- he's the most predictably conservative judge on the Court.

4. There's always a lot of talk about how judges should write opinions. Rumpole doesn't like the Judge Selya style of opinion writing (Selya's interview on How Appealing is entertaining). I wonder what he thinks of this.

Feds arrest in case where only .01% chance of getting caught

At least that's what the defendant put the odds at in this UBS case (via the AP):

A former banker at Switzerland's UBS AG has been charged with tax fraud conspiracy for allegedly helping a wealthy U.S. client hide assets from the Internal Revenue Service.

Banker Renzo Gadola was named in the charging document filed Tuesday in Miami federal court. The document claims that Gadola and an unnamed second Swiss banker helped an unidentified Mississippi man hide an account at UBS and open another secret account at a second Swiss bank.

Gadola worked at UBS for 13 years, then in early 2009 began working as an independent investment adviser.

Prosecutors say Gadola and the other banker tried to prevent the client from disclosing his secret accounts to the IRS. During a November meeting at a Miami hotel, according to court documents, Gadola told the client the likelihood that his new accounts would be discovered was "practically zero percent."

"You have no link to UBS whatsoever, so 99.9 percent you have nothing to worry about," Gadola told the client, according to court documents.

Speaking of other things that happen only .01% of the time, a federal appellate court today ruled in favor of a criminal defendant in a Fourth Amendment case. And it was a biggie. Orin Kerr from Volokh has all the details of United States v. Warshak from the 6th Circuit, where the court held that email is protected by the warrant clause of the 4th Amendment. That almost deserves an !. (Hat tip: JK).

Judge Kozinski champions right to privacy in computers

The Fourth Amendment is not dead... at least in the Ninth Circuit. Judge Alex Kozinksi,* writing for an en banc Ninth Circuit, ruled that many additional safeguards must be put in place before a computer search can go forward. See United States v. Comprehensive Drug Testing. Here's the summary of the holding by Kozinski:

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

My former law-school classmate, Professor Orin Kerr, has been railing on the decision over at the Volokh Conspiracy. Professor Kerr calls the opinion "breathtaking"** and says that it is light on citations to authority. He goes so far as to say: "This is the most free-wheeling, 'look ma no hands' legal decision I've read in a long time."

I think Kerr has got it all wrong here and that the en banc 9th Circuit has got it right. Computer searches are inherently different than any other type of search. And by the very nature of the search, a search warrant for any type of digital information -- no matter how discreet -- will lead to a search of the entire computer. Nowadays, there is nothing more private than a computer, not even your home. The old 4th Amendment analysis plainly hasn't been working with searching computers. And finally, one court had the courage to say so.

I know this isn't Scalia-Dershowitz, but I challenge my old friend Orin to a debate on whether this case was correctly decided. We can do it in blog posts or email or whatever. I hope he accepts. My first question to the good professor is whether he would agree that computer searches are inherently different than any other kind of search.

*Isn't it interesting that Kozinski wrote this opinion. Remember that he's the guy who had the contents of his computer publicly disclosed.

**Interestingly, the same word was used to describe the government's position: "Judge Thomas, too, in his panel dissent, expressed frustration withthe government’s conduct and position, calling it a 'breath-taking expansion of the ‘plain view’ doctrine, which clearly has no application to intermingled private electronic data.' Comprehensive Drug Testing, 513 F.3d at 1117."