Interview With Jon Praed From Internet Law Group

Jon Praed is a total stud!  He spends his time tracking down hard-core spammers.  The kind that run illegal viagra, casino, porn and phishing spam.

A lot of guys have made money in “grey” areas of internet marketing.  Jon explains how gradually people are being forced to choose sides and that all the aggressive stuff is slowly going away.

If you want to get an overall understanding on where the internet is going long term, this is the interview to check out.  It was one of the most powerful and fascinating ones I’ve done.

I think you’ll find this interview worth listening to yourself.

Adrian: I’m here with Jon Praed from the Internet Law Group. Jon is a pretty interesting guy who has spent a lot of years tracking down hard-core Internet spammers and bringing them to justice. He does this on behalf of companies like Verizon and AOL and has won some pretty important lawsuits and decent-sized judgments. Jon, thanks for joining us. Could you start by telling us a bit about who you are?

Jon: Thank you for having me Adrian. I’m a Midwestern boy, born and raised in Indianapolis, Indiana. I now live in the suburbs of Washington, D.C. I went to college at Northwestern with a major in political science and then graduated from Yale Law.

Right out of law school, I clerked for district court judge John Tinder, who’s recently been elevated to the Seventh Circuit, and then for Indiana Supreme Court Chief Justice, Randy Shepard. After my clerkships, I was in private practice as a lawyer with Latham & Watkins in both California and Washington, D.C. I also spent two years working on Capitol Hill as chief council to a House subcommittee dealing with regulatory affairs.

I’ve been doing cyber litigation work for about the past 10 years. I got into it when some ISPs reached out to Latham to take on this newfangled problem called spam. At that time, no one really understood how big it would become and what sort of a precursor it would be into the entire world of cyber crime. I was assigned to the case, quickly fell in love with it and came up with some innovative ways to service the client by marrying our ability to crunch a tremendous amount of data with our ability to bring legal services to bear on the problem.

I left Latham & Watkins to start Internet Law Group where we represent any sort of corporate victim of substantial, systemic, serial cyber fraud whether it’s a counterfeiting problem with drug companies, phishers going after bank customers, or mail companies that are trying to deal with inbound or outbound spam problems. In a nutshell, we look for ways to bring strategic actions against cyber criminals and go after any sort of fraudulent Internet activity.

Cyber crime over the past 10 years has really transformed from petty crime, and largely Americans who were kind of geeks gone bad, into an extremely sophisticated international criminal network. The bad guys we are chasing are extremely talented and go to great lengths to hide their activity.

They also take advantage of the inefficiencies that arise from international boundaries. They’re moving their physical bodies, their computers and their connectivity to places that are difficult for us in the West to touch and extradite from. They are also moving their money to places where it is difficult for us to freeze.

Adrian: What are some of the big cyber crime cases you’ve been involved with?

Jon: We’ve had a number of cases that have been litigated and produced published opinions that have impacted the world of cyber crime. In 2001, we had a published decision in a case we brought for America Online against an Adult Web site called Cyber Entertainment Network in 1999.

AOL had sued Cyber Entertainment Network based on the principle of negligent enablement and negligent hiring and retention. The lawsuit said that they had retained affiliates they either knew or should have known were engaged in spam to advertise their Web sites. On that basis, Cyber Entertainment Network could be held liable.

We used some fairly aggressive technology to grab the data we needed and establish the fact that a large volume of the adult content spam AOL was seeing at the time was attributable to spammers advertising one of a handful of Adult Web sites controlled by Cyber Entertainment Network.

Adrian: There’s been a perception that affiliate marketing isn’t legitimate. I know profoundly that it’s a vital part of Internet commerce. Where do you stand on that issue?

Jon: A properly-run affiliate program can be extremely powerful, but it has to be run effectively. You have to recognise that there are opportunities for abuse and that you are effectively outsourcing your advertising. You have to do so with clear standards in mind, and you have to enforce those standards.

The public injunction that was entered in the AOL versus CEN case remains the best model I’ve ever seen on how an affiliate program needs to be run. That injunction, which is public, lays out the rules that Cyber Entertainment agreed to follow in the course of the outcome of that litigation.

Those simple standards are to get identity from affiliates, establish rules, have a mechanism to receive complaints from the public, investigate those complaints, report back to the public on the outcome of the investigation and terminate when necessary. If you do those things, you will have a clean affiliate program.

Adrian: What’s going on in the area of phishing?

Jon: The phishing problem is really integrated within the overall cyber crime problem. We’re chasing some cyber criminals who are engaged in phishing, cashing out of stolen credit cards and at the same time are merchants that are part of a nationwide and international credit card system.

They’re authorised to take credit cards over the Internet. They are successfully processing cards from consumers, selling them product and getting credit cards. The path that connects their phishing activities with their merchant credit card activities is an extremely long path, and it takes a tremendous amount of data and sophistication to connect the dots.

A number of reporting Web sites take in phishing-type data. We operate reportphish.org where we receive reports primarily about phish but also about spam and other types of fraudulent acts that can be reported to us. You can also register at that Web site and get a unique e-mail address that can then be used to forward your particular reports to us so they are tagged as coming from each registered user.

Adrian: What are your viewpoints on filtering?

Jon: The problem with the block-it, filter-it strategy that we’ve largely adopted today is that the bad guys only have to get through one time in order to win. If you block them 99 times, they’ll do it 100 times. You’re in a constant arms race in the technology space that inevitably we’re going to lose.

We have also been too reliant for too long on the technology without recognising how legal process can reinforce what technology is capable of doing. We may be able to fix one component but three new exploits open up constantly. The overall spam volume on the Internet is still growing, and I don’t see that trend reversing itself for a long time.

It goes well beyond spam. The number of new viruses, exploits, keystroke loggers and whatnot are simply getting larger. The criminal enterprise behind it is getting more sophisticated and adept at finding a way to monetise the data that they’re able to capture through these sorts of exploits.

Adrian: You mentioned the cyber criminals are moving offshore. What are they doing?

Jon: Many of the most sophisticated ones are moving to places where they are physically insulated from law enforcement. They’re looking for places where they can pay off local authorities to provide them protection from criminal enforcers and from extradition.

A lot of our work comes down to tying identity to these Internet data points and then marrying that up against pre-existing laws that make these cyber crimes criminal. They’re all violating tax laws. They’re breaking money laundering laws. They’re breaking all sorts of laws on importation of goods. It’s not hard to find something illegal that they’re doing. The trick is knowing who they are.

In essence, what we’re trying to do as a world view is create borders, whether they’re technical or physical, that allow us an opportunity to inspect, whether its Internet cyber packets or money transactions.

You can tighten up the border and ultimately cut off the border completely. Over the next decade, we’re going to be more frequently facing a real blacklist with certain types of traffic, whether it’s flow of humans, money or information. There are going to be borders that simply aren’t porous and don’t let information through.

Adrian: The concept that a country’s Internet traffic would just be blocked is almost a little bit hard to believe. Do you think it will come to that standpoint where the U.S. says, “Dominican Republic, we are shutting you off the Internet until you make sure your country is completely cleaned up, and as soon as you’re cleaned up then we’ll let you back on.”

Jon: Sure.The binary decision of turning the valve completely off will happen at the margin but in between all open and all closed, you have an entire spectrum of controls that you can put in place. A lot of that is designed to simply put the cost and obligation to fix the problem on those people who are best-positioned to fix the problem.

The post-9/11 world makes everyone as a consumer and as a citizen realise, “I can’t wait for my government to fix all of the problems out there.” As individuals, we have an obligation, a duty, the right and the ability to step up and fix these problems.

I don’t know if it will just be a binary decision out of the cold to either fix it immediately or go dark, but there will be those pressures of isolating the problem and putting responsibility on the people who control those access points to clean up their act. It’s just like cleaning up the affiliate model.

We couldn’t go after Cyber Entertainment Network until we knew that the Web sites ultimately being advertised were all in one way or another controlled by Cyber Entertainment Network. Once you make that connection, it’s relatively easy to find the ultimate owner and say, “You have a problem. You have to fix it.”

Adrian: It’s hard to hear that because these are so many good people here in the Dominican Republic and some of them are just in poverty. This is the kind of stuff that pushes them down even further, but I can see why you do it too.

Jon: You can view it as pushing them down, but you can also view it as empowering them. It gives them the power to control their own destiny and the obligation to do it. What we have to avoid is creating systemic mechanisms that encourage and reward races to the bottom, and I’m a little afraid that the Internet as a whole, given the power of anonymity and the ability to do things in an automated fashion, creates at some level, a race to the bottom.

For example, good companies are dependent on legal mechanisms to give them the ability to invest hundreds of millions of dollars to develop a new drug, but if they can’t recoup that cost, we’re not going to get new drugs developed. Right now, they are being challenged by bad guys who are selling counterfeits, knockoffs or generics made out of countries that don’t recognise patent rights. These counterfeiters, who before had to sell their goods from the back of a truck, now have access through spam and other types of advertising to billions of eyeballs throughout the world.

If you have a systemic problem that is the race to the bottom, you have to find other mechanisms that corkscrew it the other way as races to the top. You have to create jurisdictions that are defined by borders where the borders are defensible and you have to create those jurisdictions with rules that encourage races to the top.

Then we defend those systems that serve as a counterweight against these races to the bottom, segregate those jurisdictions that do suffer from races to the bottom, and isolate their problems within themselves so that they are incentivised to clean themselves up to be able to rejoin the rest of the world.

Adrian: That’s a fascinating idea. That concept of race to the top is one of the most profound ideas I’ve heard. Where can I learn more about that?

Jon: A classmate of mine, Jack Goldsmith, wrote a book called Who Controls the Internet? It provides a refreshing and realistic perspective on how jurisdictions retain power over the dirt they control. It is refreshing to see that even the Internet is subject to those sorts of real politic notions of power and control. There are also some books being written about the economics of cyber security and cyber relationships, such as The Law & Economics of Cyber Security ,Mark Grady ed. 2005. that will drive a lot of this because a lot of these systemic problems are going to be “How can we monetise the value that’s inherent in the Internet?” The Internet may be new, but the concept of trying to build systems that encourage a race to the top and not the bottom is not new.

Adrian: Back to your company, how do you specifically help a company?

Jon: We use our technology to grab the data. We also have feeds from public and private sector clients that tell us about Web sites and ads. Then we spider the Web to grab all the data we need to get identity. We triage that data and look for commonalities. Then through undercover buys, informal investigative efforts and formal discovery efforts, we obtain real identity on the bad guys and those who are enabling them.

It’s designed to work our way towards hard identity on who these bad guys are. We may identify their real names, their real bank accounts, and the real domains they’re using. We identify the merchant accounts that they’re using to process credit cards, and we do that generic triage work on a flat-fee basis for our clients.

For example, for X dollars a month, we will acquire the data about a particular drug being advertised in spam, provide to the client our analysis of the top fingerprints that we see in that mass of data and show them a path they can take to identify the responsible persons. They can then hire us to do the additional work required to chase that to its conclusion.

As part of our standard fee, we also provide access to all the other information we’ve acquired through any other work. Our clients agree that we can share data we acquire about bad guys with all our clients regardless of which client we acquire it on behalf of. Our clients recognise and agree that cyber crime is a common enemy and that they are best protected when they share information about their enemy across the space.

The identity of clients remains sacrosanct. We don’t identify clients publicly except when we’re required to do so in filing lawsuits or through other means. We may tell Client X that Client Y was victimised by the same serial fraudster on the same day and approximately the same time so that Client X and Y can know that there’s someone else interested in catching this person.

They then can each make the decision whether they want to join hands through us and either remain anonymous or actually identify themselves to each other and, by combining resources, come up with a strategic solution to the problem far faster than they could ever do on their own.

Keep Your Kid Safe On The Internet! Law Enforcement Agencies And Citizen Groups

I have already submitted a couple of articles about the dangers the internet holds for children. My next series of articles will be about the various citizen groups and law enforcement agencies that work to deter or stop predators and keep children safe online.

The first group I want to cover is a group called Perverted Justice. Their “nickname”, or what they are also known as is PeeJ. Perverted Justice is a citizen group that was set up for the purpose of identifying adults willing to have chat room sexual encounters with minors. Millions of Americans have seen this group in action during the operation series called “To Catch a Predator” that Dateline NBC carried out on the air.

The people who make up Perverted Justice are volunteers. These volunteers carry out sting operations, using “young” sounding screen names, such as sara_so_bored. They then wait for older men to approach them in chatrooms. The volunteers of PeeJ do not make the first contact with the adults, but instead wait to be approached.

Once the men approach the volunteer (who they think is a young teen girl or boy), the volunteer works to get identifying information from the men; information such as a phone number. This information is usually given during talk about setting up an offline meeting with the perceived minor. The PeeJ volunteer then uses a Reverse Look Up service to find out the name of the person who owns the telephone number, and passes the information on to law enforcement.

Perverted Justice was started in 2002 by Xavier Von Erck of Portland Oregon, who got the idea after watching men attempt to woo young girls in chatrooms in Oregon. Von Erck says that PeeJ is a computer watchdog agency that works closely with law enforcement. During the ‘To Catch a Predator’ stings put on by Dateline NBC, Perverted Justice was actually temporarily deputized by law enforcement, since some of the operation was required by law to have been carried out by members of law enforcement.

Von Erck goes on to say that “The media likes to use the term vigilante because it gets attention, but we don’t consider ourselves vigilantes. We cultivate cooperation with police and work within the law to get justice, not outside of the law.”

Perverted Justice’s volunteers act as bait in chatrooms where children and minors can often be found. The profiles the volunteers set up have youthful sounding nicknames and often pictures of children. The volunteers do not initiate contact with the men, but instead wait for the men to first come to them. They refuse to act on tips from internet users, to avoid the risk that someone might use the website for purposes of revenge.

If a man starts chatting with the volunteer and turns the conversation toward sex, the volunteer attempts to obtain identifying information from the man; information such as a telephone number so that a “meeting can be arranged”.

In years past, the chatlog and details would then be published on Perverted Justice’s website. However, beginning in 2003, the organization began its “Information First” program, in which interested police departments could contact Perverted Justice, and any busts made within the jurisdiction of that department would be sent to them without having been posted to the website.

In the early days, PeeJ did not initiate contact with the police, due to the difficulty of prosecuting online criminals in a court of law. Because the law has evolved in such a way that law enforcement now CAN and regularly DOES prosecute online criminals, PeeJ has switched to a policy of cold calling local police with the information they obtained. If a one of the government agencies is interested (police, FBI, military CID, etc.) then the chatlog and other information is not posted to the site until after a conviction has been reached.

To date, Perverted Justice has been responsible for over 100 convictions of online predators. Some of those convictions were witnessed by television-watching Americans, glued to their T.V. screens during the airing of Dateline NBC’s To Catch a Predator series. One of these “public convictions” was a rabbi, who entered a home with the intention of having sexual relations with a minor boy. The “candid-camera” photograph of this rabbi as he was caught by Dateline NBC is posted on my website, which is dedicated to keeping kids safe online.

My website is interactive and includes a place for parents, educators, and interested parties to post methods of keeping kids safe online, as well as a message board where people can chat about online safety and what can be done. I have a page that shows Internet Safety in the news, as well as a page dedicated to educating parents on what can be done to “keep your kid safe on the internet”. Everyone is welcome.

The “Aggressive Forgiveness” of Grace

What an amazing term it is: grace. Nothing bad, The Message tells us, has any power over it. Even though it appears illogical, “grace… invites us into life.”[1] With this sort of power, and the knowledge of it, it’s only a fool who would pass it up – yet, we often don’t trust its power; we have to experience it first-hand. It’s a “what comes first: the chicken or the egg?” situation. We can’t experience grace until we take a risk with our heart and try it or see someone else give it to us; giving grace in essence is giving someone a chance they don’t deserve. Many people never actually experience this grace in a personally meaningful way, although one could argue that life itself (i.e. the provision of life) is an act of grace.

The supreme example of grace was the Passion of Christ. The power of this salvific act was, is, and will always be, undeniable and irrefutable, as millions upon millions of human beings are given the ‘second chance’ at new life, and we might say, real life. It transformed the meaning to life by making life with God a possibility.

Perhaps one of the better popular songs, When Love Comes to Town, describes best the effects of grace on a life; this ministry of the second chance. The lyrics below summarise what so many have experienced through the loving power and grace of God:

Maybe I was wrong to ever let you down,

But I did what I did before love came to town.

What is actually a gospel song sung by U2 and B.B. King soared through the charts through the world. These lyrics above describe what so many did before coming to know God. Lives punctuated by sin, both covert and overt. These lives were most often useless for anything other than self-gratification, disorder, misery, and the antithesis of real hope, as well as contradiction and hypocrisy. Only rarely did glimpses of the light of grace emanate from within this person. Then a miraculous thing happens. Love comes to the ‘town of the heart’ of that person. Grace is ‘love coming to the town’ of our hearts. It is knowing and accepting our true selves in the light of life. This love came to us; we did not go to it. The love of God that is grace seeks and finds us, and it truly finds us when we turn and look, and then it is there – and it is there to be seen! We are the ones who have to ‘see’ it.

Here are some more lyrics from the above song that feature the theme of this ‘aggressive forgiveness’ we know as grace:

I was there when they crucified my Lord,

I held the scabbard when the soldier drew his sword,

I threw the dice when they pierced his side,

But I’ve seen love conquer the great divide.

Theologically, these are correct statements. In essence, we killed Jesus and he, the resurrected Lord, still forgives us; further, that is precisely why he did it; so we could have a way of being set right with God, and also to facilitate the process to “make us fit for him [i.e. the Father].”[2] It is grace that made the way possible; the undeserved favour of God. It is so we could be saved from our sinful selves.

The Greek word charis means grace. It can mean all manner of things connected with the theme of grace including: matter of approval, benefit, a charitable act, free favour, gracious provision, or simply, grace. The Bible is littered with this term as a response to the fall of humankind in the days of Adam and Eve and the serpent. Even at that point grace was evident. Grace has been and always is evident.[3] People who are grace-filled have charisma, another Greek word for someone with charm, allure, and who is persuasive; a natural and at times divine leader.

Grace is anything that we do that we illogically forgive for. If someone harms us, slanders us or gossips about us, or doesn’t consider us, we normally have the right to defend ourselves and exact revenge – not with grace; we leave any of that justice to God, and he sorts them out, eventually! It simply doesn’t matter to the person who has grace. Grace is finding love in the heart to cover all wrongs; it may lack sense to you but until you try it you won’t know true life. To forgive someone a transgression is also about forgiving yourself, as you release all the pent-up anger in a most beautiful and safe (and graceful) way.

Grace collides with freedom. It challenges incredibly all captivity. It’s fighting courageously for the ethical right. Dr. Martin Luther King Junior’s “I have a dream” speech from the steps of the Lincoln Memorial on August 28, 1963 oozed grace for both his, and inevitably all, people:

“Let freedom ring. And when this happens, and when we allow freedom ring-when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children-black men and white men, Jews and Gentiles, Protestants and Catholics-will be able to join hands and sing in the words of the old Negro spiritual: “Free at last! Free at last! Thank God Almighty, we are free at last!”

Grace is freedom for everyone. It is knowing that wrongly holding something from anyone is a bondage to one’s self too. That’s the power and allure of grace.

Sadly, Rev. Dr. King was shot dead not quite five years later, and this is depicted in another U2 song, Pride (In the Name of Love). The lyrics of the song underscore one man’s pride for his people, and for love to win the day, through the justice and righteousness of God; of action. “Early morning, April 4, shot rings out in the Memphis sky, Free at last, they took your life, they could not take your pride.” Indeed, King’s ‘pride’ lives on! Now, that is descriptive of the provision and justice of grace. As powerful as grace is for the good, it also ushers in the presence of God for justice to pervade situations and groups and individuals. In this way grace is theologically both prevenient and irresistible. It is irrepressible.

Grace is about relationship: between God and humankind. It’s knowing the joy of life. The experience of grace for Jews in Old Testament times brought about joy. Grace is not a New Testament, purely Christian concept though Christ sought to ‘finalise’ the deal by fulfilling the law and the prophets. “The ancient Israelite looked on the law not as a burden, but as a gift of grace, a delight, precisely because of the warm and personal relationship with the LORD that it enabled and expressed.”[4] The law was always a provision of grace. Covenant (the relationship) always came before the law.

In yet another U2 song, One, what sounds like a ballad is actually a painful song of the opposite of grace within the relationship between lead singer Bono and his father. Here are some of the lyrics that allude to this sentiment:

Did I ask too much?

More than a lot.

You gave me nothing,

Now it’s all I got,

We’re one,

But we’re not the same

See we,

Hurt each other,

Then we do it again

You say

Love is a temple,

Love a higher law,

Love is a temple,

Love is a higher law,

You ask me to enter,

But then you make me crawl,

And I can’t keep holding on,

To what you got,

When all you’ve got is hurt.

The italicised portions of the lyrics above highlight the awkwardness seen in relationships lacking grace; for instance, where father will lord it over the child. It acknowledges that genetically for Bono and his father, ‘we’re one’ and at the same time ‘we’re not the same,’ because of this grace that is somehow missing. It highlights the hypocrisy and incongruence of the father preaching ‘love is a temple and higher law,’ and yet the same father who makes his son crawl. We see in the antithesis of grace an absence of beauty, favour and ‘way.’ It is clumsy and inelegant.

The father who experiences no grace can issue only hurt to the life of the son or daughter whom desperately needs the father’s love. I used to know such a man; one who tried so hard to say the right things and do the right things, yet invariably when push came to shove wasn’t able to consistently offer grace. This can be for a range of reasons. For the individual who hasn’t got grace it is frustrating; it’s inexplicable. Something just isn’t right. One thing is for sure, the person who misses out on grace misses the mark in life, and so do those who rely on this person. There we have the recipe for generational cursing.

Grace comes to us. We recognise it and respond. It is beauty and favour. If we respond the right way its beauty and favour become part of us and the way we operate and behave. Then we have ‘charisma.’ This is a spiritual word. Only when we ‘move in time’ with God can we have this charisma, which is an aggressive form of forgiveness. It’s a miraculous gift of God to have this insight and requisite character quality.

© Copyright 2008, Steven John Wickham. All Rights Reserved Worldwide.

REFERENCES:

[1] Romans 5:21 (The Message).

[2] See Romans 5:1-2 (Message).

[3] Even during events like the 6th Century BCE Exile of the Israelites and the great flood (Noah’s Ark) grace was evident.

[4] Christopher J.H. Wright, Old Testament Ethics for the People of God, A fully revised, updated and integrated edition of Living as the People of God and Walking in the Ways of the Lord (Leicester, England: InterVarsity Press, 2004), p. 317.

Environmental Justice Gets Push From White House

Environmental justice.

The term sounds great. The concept, however, has a long way to go.

While poor areas get the brunt of a long list of environmental hazards and toxic sites, bad stuff can be buried or swirling in the air or water in any ZIP code. Progress has a way of getting things done and dealing with consequences later.

But Obama’s taken up the call.

This week, Lisa P. Jackson, U.S. Environmental Protection Agency administrator, and Nancy Sutley, chairwoman of the White House Council on Environmental Quality, resurrected the Interagency Working Group on Environmental Justice.

Big deal, right? Perhaps not. But it’s something and at least a positive move by the Obama administration to push for federal protection from environmental and health hazards for everyone. The language of a press release reminds me of talk in the living room political gatherings I grew up with in Alaska.

I can hear my activist parents, Willie and Mary Ratcliff, publishers of the San Francisco Bayview, saying the same thing 30 years ago.

“Pollution like dirty air and contaminated water can have significant economic impacts on overburdened and low-income communities, driving away investment in new development and new jobs and exposing residents to potentially costly health threats.” I was momentarily taken back in time by the words.

My activist parents continue to fight the battle they began as teenagers in the 1950s, my mother at Oberlin, my father as a black concrete contractor in California and up the coast to the Last Frontier. The best way to describe their message over the years I sum up by quoting Jesse Jackson’s jobs, peace and freedom call for justice.

Environmental justice is a huge part of this, and it’s effects can be seen in any poor community across the globe. Immigrant entry points in big cities are overlooked as are rural areas. Got something toxic? Give it to the poor folks under the auspices of jobs.

Jobs never materialize but the toxics remain.

I generalize, but dig a little and the examples are there.

The EPA’s newfound call for environmental justice is supposed to “guide, support and enhance federal environmental justice and community-based activities.” Officials say the effort will help federal agencies identify projects “where federal collaboration can support the development of healthy and sustainable communities.”

Who knows if it will mean anything beyond more high- and low-level bureaucratic meetings? I’m optimistic. Just talking about it raises the political capital of the environmental movement and the push to generate interest and jobs in a clean energy economy.

Groups like 350.org will gain grassroots members and the 10/10/10 movement may gain a little boost to identify and tackle projects that make the world a better place.

I’m inspired by something U.S. Attorney General Eric Holder said: “In too many areas of our country, the burden of environmental degradation falls disproportionately on low-income and minority communities – and most often, on the children who live in those communities. Our environmental laws and protections must extend to all people, regardless of race, ethnicity, or socioeconomic status.”

Criminal Defendants on Trial – How to Relate to the Courtroom Work Group

Who is the Judge and what is his role?

The Judge is the person who is elevated on the Bench in the front of the courtroom. While the Judge is required by law to rule on the “admissibility” of the evidence as it comes into trial, the jury is empowered by law to rule on the “reliability” or “credibility” of the evidence. The Judge must have no impact on the jury’s verdict. If the ultimate verdict is guilty as charged, the Judge will be the one deciding the sentence. The jury cannot consider what the sentence might be when they deliberate on the facts. The role of the Judge and the role of the jury at the trial are separate and distinct.

If you decide to have your case tried to the Judge alone without a Jury, several factors come into play:

¨ The Judge will decide admissibility AND reliability of the evidence.
¨ The trial will be much shorter. A three day jury trial can be completed in an afternoon by the Judge.
¨ The drama that is seen in jury trials is low-keyed in a trial to the Judge.
¨ The Judge and the prosecutor are both employed by the State but their roles and requirements are

theoretically different.

¨ Certain arguments presented with theatrics that can be favorably made on the jury have no impact on the

Judge sitting alone as decision-maker in the case.

¨ The Judge alone decides on all issues of procedure and law as well as deciding the facts of the case.

There are fewer checks and balances.

Every Judge has their own personality which they bring to their courtroom. This human factor must be taken into consideration just as it is in every other walk of life. Thus we ask, “Is the Judge the enemy with whom we are at war?” Have you played competitive sports? In basketball, for instance, your team is competing against another team. Both want to win! A referee is hired to call the game according to the same rules that everyone applies to every game. The referee is impartial but still has to rule in favor of one team or the other. Yelling and screaming at the referee never persuades a change in ruling but may influence future calls. It is always in your team’s favor to calm down and abide by the referee’s ruling. Play the game hard but you must abide by the rules. To do that it helps to know the rules inside and out.

We can perceive two different pictures of the courtroom. One is where the Judge is very strict and treats everyone the same. The other is where the Judge is overly friendly with one or more of the attorneys and courtroom workers and the atmosphere is very loose.

In the case of the strict Judge, both sides must approach the podium to present their arguments; otherwise, they are not permitted to talk. They must stand to make their objections. When they sit down, they must be quiet while the other party presents their argument. In the other picture with the loose or relaxed atmosphere, familiarity often congeals into a close knit fraternity between the Judge and the prosecutor that is very hard to put aside once a jury trial commences. After all, they spend most of the work week together.

You are never certain into which situation you will step for your trial. Whether the Judge is very strict or overly relaxed cannot be predicted by the defendant. However, an astute Defense lawyer should find out what the tendencies of that particular Judge are before the trial starts. Either way, you will want be respectful to the office of the Judge. If you ever get arrested again in the same jurisdiction you will most likely be assigned to that very same Judge.

Here are some suggestions for your behavior that will help you with the Judge as decision maker.

  • Be polite; stand up and be quiet when the Judge enters and exits the courtroom.
  • Don’t talk when the Judge is talking.
  • If you talk to your lawyer, whisper or, preferably, write him a note.
  • Keep in mind that after the trial should the verdict go against you, the Judge that you have been respectful to at trial will be the one determining your sentence.
  • Listen to the Judge and try to understand the rulings of the Court.

Who are the other people up front in the Courtroom?

The in-court clerk usually is seated in front or just to the side of the Judge, depending upon the layout of the courtroom. This employee works for the Clerk of the Court who is an independently elected official. The in-court clerk takes orders from the Judge but is governed by the procedures delineated by the Clerk’s office. This is not an antagonist to the Defense, so don’t be rude to the in-court clerk. Nothing is ever gained by fighting with this person. You will see during breaks when the jury and Judge leave the courtroom, that the in-court clerk is usually kind, friendly and polite to everyone else in the courtroom environment. Since the in-court clerk does all of the Court notices, makes the entries into the case file and literally “has the Judge’s ear” throughout the case process, you already have an important relationship with that person.

The court reporter takes down everything that is said while Court is in session. The reporter usually uses a machine to record a type of shorthand version of the spoken word exchanged between the various speakers. They are attentive and focused because if they miss anything they may not keep that job for long. The Record of the case is of utmost importance for later appeals, reference by the parties or postconviction Courts and even if the jury wants a read-back of testimony in this trial. The reporter generally doesn’t engage in any conversation with other persons in the courtroom even during breaks.

The bailiffs or in-court deputies are very important persons to the Defense. They have observed hundreds of jury trials and have a good feeling for how your particular trial is going. They are a good source of information and advice that is helpful to those who will listen and heed. For example, in a trial where the defendant had long, wild dreadlocks and the sole issue was an eye-witness identification, the bailiff tried to convince the defendant to shave his head for trial. The bailiff told him to try to look like Michael Jordan and be quiet and respectful during trial. The attorney, the defendant’s family, and all of the courtroom workers gave the same advice but to no avail. Ironically the eye-witness testified that he had not seen the armed robber’s hair because he might have had a cap on. However, the subconscious thinking of the jurors was, “If I didn’t see this man for 10 years and suddenly saw him, I would remember it was him because of that hair!” He was convicted and sentenced to life. Had he listened to everyone’s advice, the outcome might have been different.

In court, during your criminal trial, as in all facets of life, the best advice anyone can give you is to try to live up to some of the points of the Boy-Scout Law, “Be friendly, courteous, kind, obedient, cheerful, and clean.” Put your best foot forward for trial. Respect the Judge, the court process and the court room workers who strive to live up to those standards every day. If you do try your hardest to exemplify these things, some degree of grace and mercy just might come your way when you need it most.