29 June 2011

A Round Tuit (60)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Supreme Court

I'm returning to these Round Tuit posts after a lengthy absence and I've picked a hell of a week to do so. This past week witnessed the customary flurry of decisions from the Supreme Court ahead of the close of its term. All were eagerly-anticipated and ably-dicussed by at least some niche segment of the legal blogosphere and several were noteworthy enough to merit wider discussion — and in some instances heated debate. As is my wont, I'll focus on just a couple of decisions and discussions which particularly appealed to my own idiosyncratic preferences.

First up is the decision in Bullcoming v. New Mexico, issued by the Court last Thursday. Lisa McElroy summarized the ruling in SCOTUSblog's ongoing "Plain English" series of posts:
Over the last few years, the Court has had a series of cases involving the Confrontation Clause, the part of the Sixth Amendment which says that criminal defendants have the right to confront witnesses against them. In these cases, the Court has emphasized that the Clause means what it says: if prosecutors want someone to testify in a criminal case, that person has to appear in court, take the oath, and – if necessary – be cross-examined by the lawyers for the defendant. In Bullcoming v. New Mexico, a divided Court stuck to that interpretation.


[T]he Court was considering a question that logically followed from its decision in Melendez-Diaz [v. Massachusetts]: could another lab analyst testify in place of the lab analyst who actually performed the tests? Perhaps unsurprisingly, the Supreme Court (in an opinion by Justice Ginsburg) said no. Testimony by a substitute analyst does not satisfy the Confrontation Clause, because the lab analyst who performed the test must testify and be cross-examined in court.
Brandon Garrett suggested that while strengthening Confrontation Clause protections against shoddy scientific evidence is a needed and welcome development, those protections are, without more, unequal to the challenge and the Bullcoming decision is thus of limited value:
What the Court did not say, since the issue was not raised, was that those underlying problems of quality control require much more than Confrontation Clause protections at a trial. Indeed, it was Justice Kennedy, in his dissent in Bullcoming, who highlighted how reliability of forensics is better protected by structural reforms such as: “free retesting for defendants; result-blind issuance of reports; testing by an independent agency; routine processes performed en masse, which reduce opportunities for targeted bias; and labs operating pursuant to scientific and professional norms and over-sight.” Even in the cases that do go to a trial, the defense cannot meaningfully question the analyst about the work they did in the lab, unless judges do far more to ensure that the defense has access to underlying bench notes describing the lab work (and not just the final lab report announcing the result). Defense lawyers are routinely denied forensic experts of their own, so they have no way to meaningfully examine the work that the prosecution analyst did or offer a second opinion.


Outside intervention is needed, since it appears as if our criminal justice system has an ingrained junk science habit that it cannot break. Melendez-Diaz was not the only crucial development in forensics in 2009. Earlier that year, the landmark National Academy of Sciences report, "Strengthening Forensic Science in the United States: A Path Forward," explained how the bulk of forensic techniques in wide use today, with the exception of nuclear DNA testing, cannot consistently and validly be used to link evidence with a particular defendant. The report called for a nationwide overhaul of forensics due to endemic scientific, methodological, and quality control deficiencies. So far, Congress has not had the appetite to tackle structural problems with much needed federal legislation, although judges have begun to more carefully scrutinize forensics in their courtrooms and scientists have begun the work of reassessing methods and standards. Progress is being made, perhaps too slowly, but one thing is for sure: it will take much more than one criminal procedure ruling to solve those underlying structural problems.
Many times, Scott Greenfield has discussed how frequently and destructively both shoddy scientific evidence and baseless pseudo-scientific results are used to bolster weak prosecutions. Concerning the Bullcoming decision, he touched again on these issues, as well as the unchallengeable faith with which jurors and judges have come to regard "science" in court. On a more hopeful note, however, he discussed the value even a limited confrontation opportunity might offer defendants:
The majority upholds the confrontation clause as a matter of constitutional principle, despite the inconvenience it causes in convicting a defendant. The Constitution says that a defendant is entitled to confront a witness against him, and so it must be.

The dissent sees it as a waste of time and resources, one less technician running tests to be used to prosecute criminals and one more witness on the stand who will recite the liturgy of courtroom conviction science. Do we really need to waste a state employee's time this way?


In a sense, the dissent makes an excellent point when it speaks to the formalistic approach taken by the majority, giving the appearance of fairness by virtue of confrontation when the fact remains that, aside from the outlier case where the tech completely blows his testimony and gets caught red handed falsifying the test, the testimony is so utterly routine and banal as to be hardly worth the time to listen to it.

If the cross-examination of the testing technician, or perhaps his supervisor if it turns out over time that a few steps away from the machine is close enough for testimony, accomplishes nothing, then what the heck are we doing it for?

There are two reasons. First, because there are those outlier cases where a technician's testimony goes south, and somehow he admits under oath that knows nothing about how to handle, calibrate, work the magical box. Every once in a while, a witness from the lab tells the truth. It may not offer much systemic comfort, but it means an awful lot to the guy in the dock at that moment. The Constitution protects his rights, not just those of some amorphous majority of defendants.

The second reason is that lines must be drawn when it comes to confrontation, as is expressly protected by the Sixth Amendment. As the rules of evidence demonstrated over the years, when step by step testimonial evidence was taken off the list requiring a live witness because courts found it needlessly inconvenient and sufficiently reliable through rhetorical argument to just get it in and done, it was all too easy to go with the flow when it came to the admission of evidence. Evidence grows increasingly routine as it's admitted in case after case, until we forget all the reasons why it may be less than accurate, or maybe even deliberately false. It's probably fine. It's probably valid. And that's good enough not to be bothered challenging it anymore.

This cannot happen, and the majority, by drawing a somewhat bright line despite the very practical arguments of the dissent, seeks to hold the line.
Though I'm very likely overestimating his degree of optimism, Walter Reaves seemed at least somewhat hopeful that, whatever its limitations, Bullcoming is a recognition by the Court that science is all-too-falliable in the courtroom; he suggested that it might be a message to lower courts that justice may be blind, but her faith in "scientific" testimony should not be:
The court definitely got this one right. If the results of a scientific test are going to be used to take away someone's freedom, they need to be scrutinized. That can only be done by competent counsel, who knows the questions to ask and what to look for. A supervisor cannot answer those questions, and cannot ferret out problems simply by looking at the results.

Perhaps the court's decision is based on a recognition that forensic science is not as infallible as the scientists would like to believe. There certainly has been increasing recognition of the problems in this area. As long as forensic science is used in criminal trials it must be subjected to strict scrutiny. This opinion is good step toward that.
Daniel Blinka pointed-out a couple of aspects of the Bullcoming decision which keep law in this area still a bit unsettled:
In dicta the Court adverted to a troubling limitation of the Crawford rule [discussed in the Melendez-Diaz decision]: so long as the declarant testifies as a witness, the quality of his or her testimony seems to be of no constitutional moment. Thus a forgetful witness who asserts, sincerely or deceitfully, to have no recollection of underlying events satisfies the confrontation right, thereby permitting the State to introduce her hearsay statements for their truth under any one of more than three-dozen hearsay exceptions.

Finally, the Court may be hedging somewhat on the notice-and-demand statutes that it had extolled in Melendez-Diaz. Such statutes permits prosecutors to provide pre-trial notice of an intent to rely on lab reports, for example, thereby compelling the defense to “demand” that the analyst testify at trial or waive the right. Justices Thomas, Sotomayor, and Kagan refused to joint Part IV of the Bullcoming opinion, which addresses retesting as well as notice-and-demand statutes. (This left just three justices in support of Part IV.)
As we were reacquainting ourselves with the Confrontation Clause this week, our English cousins were focused as well on confrontation of witnesses, in this instance during a celebrated murder trial. Blogger ObiterJ provided the background for those of us on this side of the pond:
The trial of Levi Bellfield for the murder of Milly Dowler resulted in his conviction. During the trial, Milly's parents were subjected to cross-examination by Bellfield's counsel - Jeffrey Samuels QC. The nature of this examination has been criticised and described as "cruel and inhuman".... The Director of Public Prosecutions has said that the experience of the Dowler family has raised "fundamental questions" about the treatment of victims and witnesses - see Channel 4 News 25th June. Lousie Casey, the Victim's Commissioner,said the it was appalling that they had to go through a court process where it must have seemed that they themselves were on trial....


The Victims' Commissioner is to present a report in the near future to the Ministry of Justice which will contain examples of how victims and witnesses have been treated in recent times and will call for changes.
While I would advocate giving any attorney named "Samuels" a free pass for any and all conduct, lawful or otherwise, David Allen Green formulated the questions many in Britain were asking after the Bellfield trial concerning Barrister Samuels' cross-examinations:
Can a barrister be fairly blamed for such a cross-examination? Surely a victim's family have suffered enough without being put through this sort of ordeal? And what about the privacy rights of the witnesses?


As regards the privacy rights of witnesses, the assumption behind the Code of Conduct appears to be that if there is a good basis for the question, then any interference with personal privacy would be legitimate and proportional in the interests of ensuring that there is a fair trial.

All that said, however, the experience of many witnesses of the criminal court system is often unpleasant.

It is all very well ensuring that the defendant has a fair trial, and is able to put their case to witnesses and to the judge and jury; but does that really mean witnesses should have no rights at all?


The problem is in converting such sentiments into concrete policy.

In particular, in what circumstances should a barrister not follow a line of questioning which otherwise would be allowed under the Code of Conduct and be permitted by the trial judge? This is an extremely difficult question to answer.


[T]here may be a problem here without any easy solution.
Blogger Milly offered an unreserved defense of Bellfield's defense counsel, words which I think are valid for Americans as well:
[W]hat we cannot afford to do, in our desire to demonstrate compassion and empathy to the parents, is sanctify them to the extent that the trial process is compromised....


I am terribly sorry that the Dowler family were not prepared for trial by Victim Support. I am very sorry that they were not prepared for trial by the police, and I am very sorry they were not prepared for trial by the Crown Prosecutor, who, while not able to coach his witnesses will have been absolutely and completely aware of the line the defence was likely to take.

What I am not sorry for is the line of questioning they faced. That very line of questioning demonstrates that our justice system works. That a defendant will receive a robust, thorough and proper defence on the evidence available to his representative, no matter how distressing, or distasteful, or painful to the witnesses that may be, makes me proud of our justice system.


The press want the trial system changed. The Victims’ Commissioner wants to look at making changes, and the Director of Public Prosecutions has come out saying he wants to ensure that the same does not happen again.

We are running the risk of being governed by knee-jerk tabloid reaction. Imagine you were accused of a crime. Wouldn’t you want a proper defence, a thorough defence, a fearless defence? Or would you want a barrister who visits you in your cell and says ‘I’m sorry, I can’t ask that question. Someone might get upset’.
The right — the necessity — for an accused to be able to confront those offering evidence against him is enshrined in English and American law for a reason. That it makes the prosecution's job more difficult is fortunate; that it makes innocent witnesses' lives more difficult is unfortunate. This past week, in both America and England, courts struck the proper balance, supporting the right to confront above competing concerns. The struggle will no doubt continue next week and beyond.


As the youngest member of the Supreme Court, Justice Kagan, was already into junior high school when Pong was first played, it seemed something of a stretch for the Court to understand the strange world of modern video games in deciding Monday's Brown v. EMA. At issue was a 2005 California law which restricted the sale to minors of video games with violent content. The law was challenged by video game publishers and, in a ringing victory for free speech, was declared unconstitutional this week by the high court. Lyle Denniston wrote that the Court's video games decision "[b]oldly proclaim[s] that old constitutional principles do not yield to new waves of technology":
It is clearly a feature of modern life that teens — and sub-teens — spend hours and hours playing electronic games, for better or for worse. In a vivid response Monday, the Court’s majority made very clear that that was none of the government’s business (at least when violence, not obscenity, is what the children observe on their computers or electronic display modules). The Court used the broadest constitutional language open to it to accomplish that result, apparently leaving no room for government to try different approaches.


The Scalia opinion drew an exceedingly bright constitutional line between obscenity and violence, with obscenity outside the First Amendment and violent expression within it.


While the majority made a fervent argument that it was up to parents, not the government, to determine what their minor children may watch on a video device, the main opinion also strongly upheld an independent right of minors to access to information, based on an independent right to “be spoken to without their parents’ consent.”
Greg Lastowka offered a good early take on the majority decision and the various dissents and concurrences:
I think Scalia, writing for the majority, gets the doctrine quite right. You can’t just add videogame violence as a new carve-out from the realm of protected speech. Scalia also writes at length echoing EMA’s main point: that there is a history of legislative reaction against new forms of media and videogames are just the latest target.


I found Justice Alito’s concurrence more interesting, though. Justice Alito (joined by C.J. Roberts) disagrees with Scalia not so much based on the rationale for the ruling (there is some of that), but based on his conviction that videogames are a truly unique genre with different properties and therefore deserving of different regulatory policies. I was sort of entertained and dismayed by what Alito’s was reading to come to that conclusion: Popular Mechanics? Engadget? People? GameTrailers.com? Hmm. Evidently, ludology is still not part of the popular consciousness.

Justice Thomas has a pretty remarkable (for the lack of a better word) dissent based upon the law, culture, and political philosophy surrounding the parent-child relationship during our agrarian society of two centuries ago.
Nate Anderson characterized Thomas' dissent as the "Puritan" approach whereas Justice Breyer's dissent pointing out a double-standard in the Court's treatment of nudity in popular culture represented the "Lady Godiva" approach. He suggested that "their dissents illustrate just how differently top legal minds can examine the same topic and reach opposing conclusions." Justice Thomas' comment that he "[doesn't] think the First Amendment stretches that far" had some at Reason magazine wondering about their earlier praise for him. Damon Root wrote:
In 2003, Reason named Supreme Court Justice Clarence Thomas one of our “35 Heroes of Freedom” due to his support for federalism and limited constitutional government and because he was “a reliable defender of freedom of speech in such diverse contexts as advertising, broadcasting, and campaign contributions.” That judgement still holds up, but today’s dissenting vote by Thomas in Brown v. Entertainment Merchants Association doesn't do it any favors.
Thomas' and Breyer's misgivings aside, video game developers now find themselves with the same degree of Constitutional protection enjoyed by the most-highly-regarded authors. Writing at the video gaming site Kotaku, Brian Crecente asked those developers what good they plan to do with it:
"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat," Scalia wrote. "But these cultural and intellectual differences are not constitutional."

It raises the question, what video games live up to that legacy of great literary works? And why aren't there more of them?


Video game makers have an opportunity in this decision to prove the value and worth of their medium in the face of acceptance at a level that perhaps few game makers ever thought would occur.


Ken Levine, the man behind Bioshock, points out that all of our freedoms derive from the right to express ourselves.

"Today, the Court brought the medium we love fully into that circle of freedom," he said. "And we move forward empowered, but also with a sense of responsibility that words have meaning. So we as creators will choose our words with respect, understanding their power. But no law will have the authority to choose them for us."
When Scott Greenfield was a boy, he walked uphill both ways in the snow to get to school and when he walked uphill both ways in the snow to get home again, there was no Atari waiting for him. (Now, now, I kid because I care.) Greenfield readily admitted his lack of personal experience with video games generally, let alone violent ones, and discussed his unease with the Court's broad position concerning children's speech rights:
There are a number of niches of expression that don't sit well with me, so I don't watch or listen to them. That doesn't mean that you can't, or shouldn't. To each his own.

Kids, however, aren't just short grown ups, but developing minds and hearts. That's why parents can screw them up so easily, and why they shouldn't be treated like adults in the legal system when the do something bone-headed. Children do childish things. We measure their conduct as children, recognizing that they make mistakes, sometimes mistakes that cause others significant harm, in the process of maturing.

And therein lies the problem with the 7-2 decision. As a strong free speech advocate, disinclined to agree that the government should wipe away entire categories of communication that are otherwise permissible because some legislators' nose tells them they smell bad is the sort of destructive overbreadth that emasculates the First Amendment.

Yet I frequently argue that the law must treat children differently than adults. Kids must not be subject to the death penalty, or life without possibility of parole. Kids should not be tried and punished as grownups. I've railed against the manufactured claim that kids turn into a marauding pack violent predators, as in wilding. And I agree that the sexual molestation of children by adults is one of the sickest, most horrific crimes around, deserving of a special place in Hell.

Squaring up these conflicts isn't any easier than raising children. How can I strongly contend that the police should not be permitted to interrogate children without their parents knowledge and presence (and hopefully the presence of mind to refuse to allow questioning and have a lawyer close at hand), and yet attribute sufficient sophistication to children to allow them unfettered access to violent communication?
Popehat's Patrick focused on Justice Alito's part in the decision; he wrote that:
Justice Alito, whose literary tastes happily coincide with my own, concedes that Crime and Punishment is a great novel, even though it includes a graphic description of a double axe murder. Where Justice Alito and I differ is in his opinion that under no circumstances could the depiction of a double axe murder, translated through the medium of a monitor and microprocessors, qualify as great art. Or at least, Justice Alito believes that even if one could make an interactive artistic depiction of a double axe murder, the State would be justified in prohibiting minors from experiencing it.
He continued, noting that film critic Roger Ebert has contended that video games can never be art, whereas a few decades ago, a younger Ebert defended the artistic value of Night of the Living Dead against the disparagement of older film critics:
The Ebert of 1968 was writing in response to critics of an earlier generation, who felt that Night of the Living Dead, with its graphic cinematic violence, was an obscenity which should be banned to protect children and others who might be harmed by its sheer horror.


Yet the Ebert of 1968 conceded, wisely, that censorship is not the answer. That the answer to parents who drop pre-teen kids off at a matinee of Night of the Living Dead is to ask them this simple question: What the hell were you thinking?

No doubt in twenty years, when I’m an old man like the Eberts and Alitos of today, my opinions will change. Which is another way of saying that they’ll stay exactly the same. I’ll demand censorship against the purveyors of “Neuro-Sims” like Auschwitz: The Reality, where players commit atrocities against one another in the privacy of their own nervous systems, while insisting that these could never be compared to recognized artistic classics like Left 4 Dead 2.

When that day comes, I’ll have three things in common with Roger Ebert and Samuel Alito: I’ll be wrong, I’ll be old, and I’ll be trying to impose my artistic tastes on a world that’s passing me by.
Thus another Supreme Court term ended and many bloggers turned their eyes toward the next one. Lyle Denniston offered capsule summaries of many of the cases which the Court will hear next term. Amongst those cases is United States v. Jones, which will decide whether the warantless installation and use of a GPS tracking device by police is Constitutional. As Marcia Hoffmann explained:
In Jones, the Supreme Court will review two specific questions:
  1. Whether the warrantless use of a tracking device on Jones' vehicle to monitor its movements on public streets violated the Fourth Amendment, and
  2. Whether the government violated Jones' Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
Paul Ohm noted the potential importance of this new Fourth Amendment case:
This case gives the Court the opportunity to speak generally about the Fourth Amendment and location privacy. Depending on what it says, it may provide hints for lower courts struggling with the government's use of cell phone location information, for example.


The Court, of course, may choose a narrow route for affirming or reversing the D.C. Circuit. But if it instead speaks broadly or categorically about the viability of practical obscurity as a legal theory, this case might set a standard that we will be debating for years to come.
Orin Kerr also discussed the prospects for the case:
I’m glad the Court granted in this case, and I’m also also glad they added the question on installing the device. The installation question was the piece of the puzzle that was strangely left out of the Knotts case thirty years ago....


The fact that the Court added the question about installing the device adds a really interesting wrinkle to the Jones. case. Let’s simplify a tad and assume that the only issue is whether the installation and/or use of the GPS is a search or seizure — that is, let’s assume that if there is a search or seizure, then it’s unreasonable because there was no valid warrant. If that’s the case, then the government needs five votes agreeing with it on three different issues: (1) Installation of the GPS is not a search or seizure; (2) Initial use is not a search or seizure, and (3) Long-term use is not a search or seizure.


With the current Court, the better bet in any Fourth Amendment case is that the Government will win. But the added question makes this a particularly fascinating case to watch.
Is it too much to hope that the Founders' centuries-old words can retain their meaning despite technological advancement? In Brown v. EMA, the First Amendment and video games found a happy coexistence; we'll dare to dream that the Fourth Amendment and GPS technology can manage likewise.

Odds n Ends Shop

Though I don't usually visit the Huffington Post site, I've added one of their new writers to my reading list; Radley Balko, whose outstanding work we've read at Reason and on his own blog, has joined the Post's new "Crime" desk. He started them off in high style with a three-parts feature on "Myths of the Criminal Justice System" (Part One, Part Two, and Part Three). Amongst these myths, he cited "Ignorance of the Law is no Defense"; he noted that it often is — so long as you're a cop or prosecutor:
[T]here is one exception to this rule: If you work for the government, particularly in law enforcement, you can be forgiven for not knowing the law.

Last year, Maryland motorcyclist Anthony Graber was stopped by a state trooper for speeding and reckless driving. The confrontational stop was recorded by Graber's helmet camera, and Graber later posted the audio and video to YouTube. Graber was later raided, arrested, jailed and charged with two felonies for recording his conversation with the state trooper.

Had Graber lived in Illinois, he would have broken the law, and he would be looking at up to 15 years in prison. Several people in Illinois are facing similar charges, and none of them will be permitted to defend themselves by saying they didn't know what they were doing was illegal.

But it turns out that is perfectly legal to record on-duty police officers in Maryland. A state judge later dismissed the charges against Graber in a strongly-worded opinion, stating in no uncertain terms that the cops who raided Graber's home and the prosecutor who charged him were wrong about the law.

But despite the fact that these law enforcement officials wrongly raided, arrested, jailed and charged Graber based on a mistaken understanding of the law, they face no repercussions. It's unlikely Graber will even be able to sue. Prosecutors have absolute immunity from lawsuits related to the decisions they make about whether or not to charge someone with a crime, even when they are clearly wrong about the law.
Another post well worth your time this week is one from Antonin Pribetic, who wrote that the "Brave New World" he joined as a young attorney is more hollow now, a result of social media opportunism within the profession:
Eighteen years ago I became a lawyer.


[T]oday, I feel old. Not chronologically, just existentially old. As though all the years I have spent learning, listening, working, trying to become a better lawyer, and thus, a better human being, have sped by like a freight train—the days, the months, the years—clipping past like dilapidated railway cars, quickly fading into the distance.

What is the point of writing about the Law, practicing the Law, living and breathing the Law, when all that was noble in our profession has been compromised, commodified, compartmentalized? What is the point?

Of course, lawyers need and want clients. Clients need and want lawyers. It is a symbiotic relationship, but a relationship where the client’s needs always must come first. We all need and want to be respected by our peers. Few of us are independently wealthy. We pay our bills and taxes. We deserve to make a living. Yet, is everything fungible, even your ethics? Are you willing to do anything to get a high Klout or Peer Index score, amass Twitter followers and Facebook friends? All at the expense of your clients and your profession?


What is the point in exposing the hypocrites; the liars; the egregiously incompetent; the unintegrious? Have you even asked yourself these questions? Do you care, or are you surfeit with the soma of self-promotion and self-congratulation, masquerading as self-actualization?

Where are all the lawyers? Where are the next Scott Greenfields, the Brian Tannebaums, the Mark Bennetts to take up the fight against the banality of it all?
Young lawyers, here's a recent video of Brian Tannebaum fighting the good fight. Watch it and if you don't understand and appreciate what he's saying, watch it again until you do. The profession deserves more who get this and fewer like Joseph Rakofsky.

Ah yes, Joseph Rakofsky. Since I last posted one of these Round Tuits, I and dozens of my fellow legal bloggers have been sued by an incompetent attorney for noting his incompetence, as did the judge who witnessed his appalling performance at trial, and reporters from the Washington Post, the Washington City Paper, the ABA Journal, and Reuters, not to mention his client and the poor old woman who naïvely hired Rakofsky to defend him. As my fellow defendant, Crime and Federalism's John Doe #1, put it this week, Rakofsky's becoming a self-parody. He's filed (pro se, as his lawyer's already abandoned this sinking ship) an opposition to the pro hac vice application submitted by our counsel, Marc Randazza; John Doe #1 for one is pleased that Rakofsky's given us such a gift:
How does a person defending himself from a defamation claim prove that a lawyer is incompetent? Perhaps the best way is to have that lawyer submit a moving paper and res ipsa loquitur.


This is an amazing piece of work, and a lot of people are starting to eye Rakofsky's trust funds and real property.

According to his motion, Rakofsky made a settlement offer. He demanded that everyone erase any negative reference to him, and pay him cash. There will be no settlement.
For ongoing coverage of the "Rakofskylypse", you should bookmark Mark Bennett's compendium of blog posts concerning Rakofsky and his former attorney/enabler Richard Borzouye; follow also Eric Turkewitz' continuing collection of the documents filed by both sides in the case.

For so long as Joseph's Adventures in Grouchland continue, you can enjoy George Wallace's weekly summaries of the action; the latest of these covers week seven of Rakofsky v. Internet. Highlights include our co-defendant Reuters' "brutal" motion to dismiss and the tragic plight of attorney Michael Doudna, who outsourced "his" short-lived blogging effort to a marketeer and has now been sued for a Rakofsky-related post she wrote.

Finally, thank you to those of you who've returned after A Round Tuit's lengthy absence. Having promised that it'd be back in late June, I had to make this happen, lest I be obliged to refund all of my subscribers' money. Now that a particularly busy period has passed, I hope that I'll be able to find the time to continue these on a regular basis. You, no doubt, hope for the opposite to occur. Thank you all nonetheless.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Wikipedia, BoingBoing.net, and Paris Odds n Ends Thrift Store.

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