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I knew that arming teenagers with the ability to understand the difference between hearsay exemptions and exceptions would boomerang on me as a parent already locked in daily arguments about truth-telling. And yet, thats what my husband and I did once our children were old enough to participate in high school mock trial competitions.

Our past lives as prosecutors and civil defense attorneys gave us some measure of cool with our children, who were already dispensing advice to middle school classmates about the constitutionality of school disciplinary measures.

But my transition to corporate work and my husbands later focus on municipal law eventually made our careers too abstract for them. Mock trial gave the four of us a common language, which my husband and I were desperate to rediscover with two teenagers who were busy figuring out how to carve out a distinct space for themselves outside their parents world. I originally thought wed find that connection through music, but we are never going to convince our children of the objective superiority of 90s hip-hop and R&Band attempts to do so only made us feel old. (We did gain some credibility with them by pointing out the direct connections between rap lyrics and the quest for racial justice.)

My husband and I both speak courtroom, but adding angsty, awkward and unintentionally hilarious teenagers to our world enhanced our appreciation for the industry and our children. Our son was clinical in his approachhe wanted to understand the rules of the game and then happily went off to play it. Our daughter was initially much more wary about getting involved in the family business, even though she is instinctively prone to passionate argument, if life experience was any guide. Given her enthusiasm for writing and her gift for satire, she poked fun at and reveled in the geekiness and the hyperspecificity of the mock trial universe, to the point where she is now writing a screenplay about the experience.

So, while our childrens interest in participating in this sport (my word) was not a surprise, I was somewhat self-aware that this would awaken the stage mother in methey had to win, given their parents backgrounds, right?

Having competed in, coached and judged mock trial and moot court competitions throughout high school and law school, I appointed myself lead counsel for the childrens legal education. We explored the hypothetical contours of the rules of civil and criminal procedure and walked through scenarios that compelled the introduction of character evidence. We distinguished a defendants traits that are pertinent to an alleged crime from other crimes, wrongs and acts that are admissible to prove motive, opportunity and other limited issues.

The sessions backfired immediately. Our children quickly pointed out that leading questions on cross-examinations echoed the way we questioned them, and they challenged that we were improperly using their prior bad acts against them. I received my comeuppance as a working mother when our son told me he wasnt available for a call because he was in trial.

During the pandemic, we found ourselves dressed similarly in suit jackets, dress shirts and pajama bottoms as we argued about who would get the good room for oral argument. (Our children were not persuaded that real cases and actual adversarial proceedings should be given priority.) Opening statements echoed throughout the house.

But life lessons quickly surfaced too. Practicing lawyers and judges presided over rounds, and our children learned that a sustained objection may mean that while the objection was technically correct, the judge may still disagree on the objecting partys interpretation of the rule or argument. Being right on the law did not equate with winning the case; there are no appealsonly pivots in the theory of ones case.

It was undeniably gratifying that the children would seek our counsel on at least some things. Because of her newfound interest, our daughter even decided to clerk for me when I judged one round in a law school classroom outfitted as a courtroom. She was pleased to sit next to me on the bench to track evidentiary objections and exhibit admissions. I leaned into the opportunity to require her to call me Your Honor, even if it was only for several hours.

I learned to cheer them on as an actual parent and not rise from my seat in the audience to address an objection they missed. I was nervous before each fictional murder or negligence case, and I celebrated and mourned outcomes as if actual criminal convictions and liability findings were at stake.

Losses stayed with us for weeks, and we talked about alternative ways to approach the trials well past competitions. Our children shocked and amused us by seeking our unsolicited advice and, in the same breath, schooling us on trial strategy. It was admittedly eye-opening to hear about how they leverage emojis and social media posts as evidence.

I expected that our childrens appreciation for moot court to lag behind mock trial, which often had the guilty-pleasure appeal of a scripted reality television show. In contrast, moot court simulates formal appellate argument and can feel like an often-interrupted soliloquy in a play. Lawyers present legal arguments to a panel of judges with no witness testimony.

There isnt another high school extracurricular activity that tests a teens simultaneous ability to speak extemporaneously, to weather frequent interruptions from judges, to gauge from verbal queues and body language when a line of inquiry had ended, and to pick up where they left off in their argument.

Teens unsurprisingly feel strongly about the lyrical way the Supreme Court describes which First and Fourth Amendment rights teenagers shed when they arrive at the schoolhouse gate. The exercise of having teenagers defend their rights to adultswhile pretending to be experienced appellate lawyersmade for even more passionate and sometimes comical arguments as they tried to distance themselves from the teens and children they are.

Moot court personalized their understanding of the Constitution better than any civics lesson, as they argued about the intersection and divergence of constitutionality, fairness and justice.

These experiences brought me and my husband back to the early years of our practicewe fell in love with the courtroom and with each other at around the same time, and sharing our affinity for our work with our children felt like the logical next chapter of our own narrative.

Perhaps we should not have been surprised that the best way for our children to get better acquainted with who we are aside from being their parents was to enable them to understand our own approach to litigation. Some families play tennis together; we apparently get revved up by arguing about who has met their burden of proof.

Although we have enough jokes about the world having too many lawyers, one could argue that the world can never have enough good advocates. As I watch our children argue a pretrial motion or deliver a closing argument, I am filled with optimism for the future of the profession.

Anna Newsom is executive vice president and chief legal officer for Providence St. Joseph Health, a Catholic, nonprofit health system serving the Western United States. She previously held several leadership roles at the Travelers Companies and was a partner at the law firm Mendes & Mount. She started her legal career as a prosecutor in the Bronx district attorneys office in New York.

ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at Your Submissions, Your Voice.

This column reflects the opinions of the author and not necessarily the views of the ABA Journalor the American Bar Association.

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A real defense of fake trials and a love letter to my family - ABA Journal

The House of Delegates on Saturday passed legislation that would bar police from detaining individuals simply because they smelled of marijuana.

With the Houses 98-34 vote, attention shifts to the Senate Judicial Proceedings Committee, which is expected to consider the legislation in the next two weeks.

House Bill 1071 states that marijuanas odor alone gives police neither reasonable suspicion nor probable cause to suspect someone of criminal activity. The smell, however, could still be a factor in an officers reasonable suspicion during a traffic stop that a person was driving while impaired by marijuana.

The General Assemblys consideration of HB 1071 arises amid the coming legalization of possession of up to 12 grams of marijuana. Maryland voters approved the possession of a personal amount of the drug by individuals age 21 and above in a referendum last November.

Under the approved referendum and related law, which take effect July 1, possession of between 12 and 20 grams of marijuana will be punishable by a $250 civil fine. Possession of more than 20 grams will be a criminal misdemeanor punishable by up to six months in prison and a $1,000 fine.

Currently, possession of less than 10 grams of marijuana is a civil offense punishable by a $100 fine unless the drug is being used for legal medicinal purposes.

House consideration of HB 1071 also follows a pre-referendum Maryland Supreme Court decision last year that upheld the authority of police to briefly detain and question people smelling of marijuana without violating their constitutional right against unreasonable search and seizure, though possession of less than 10 grams of the drug is not a crime.

Assistant Maryland Public Defender Michele Hall cited the courts decision in In Re: D.D. in telling legislators that HB 1071 is needed because marijuana will still be illegal if possessed in large quantities and thus its smell could still enable police to detain and question individuals.

Legalization alone did not fix this problem, Hall told the House Judiciary Committee this month.

As long as odor supports Fourth Amendment intrusion, Marylanders legally engaging in the cannabis market are at risk, added Hall, who argued in vain for D.D. before the high court.

Alleging odor of cannabis alone is nothing more than a blank check for police to intrude upon a persons right to privacy in the hopes of finding something criminal, and the Fourth Amendment requires more.

HB 1071 has also drawn strong support from the American Civil Liberties Unions Maryland chapter.

Marijuana odor stops and searches not only pose serious risk to peoples Fourth Amendment rights, they enable racial profiling and dangerous and unnecessary police interactions, Yanet Amanuel, the chapters public policy director, told the Judiciary Committee this month.

This is why it is critical that the legislature must step up and ensure that the law and police practices are consistent with the reason you all said you support legalization of marijuana and, most importantly, the law reflects the will of the people, Amanuel added. Marylanders should not fear police interactions because of a lingering odor of a now legal substance.

But William Katcef of the Maryland States Attorneys Association said the constitutional issues of probable cause and reasonable suspicion should be left to judges to determine, not legislators.

I dont think that we should have the General Assembly make the determination as to what constitutes reasonable suspicion or what constitutes probable cause, Katcef told the Judiciary Committee. I think the courts should decide.

The Judiciary Committee sent the bill to the House floor on a 15-6 vote Wednesday.

Del. Charlotte Crutchfield, D-Montgomery, is chief sponsor of HB 1071, which would go into effect July 1. The bill was not cross-filed in the Senate.

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MD politics: House passes bill removing marijuana smell as ... - Maryland Daily Record

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WASHINGTON U.S. Sen. John Thune (R-S.D.) today spoke on the Senate floor about the Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act, his new bipartisan bill that would establish a risk-based process to identify and mitigate foreign-adversary threats to American information and communications technology. Thune noted that its time to update our laws to ensure that we are able to confront the national security threats posed by foreign-adversary technology, such as TikTok.

Thune today penned an op-ed with Sen. Mark Warner (D-Va.) in FoxNews.com about the RESTRICT Act.

Thunes remarks below (as prepared for delivery):

Mr. President, theres been a lot of talk about TikTok in the halls of Congress lately, and with good reason.

Because its become increasingly clear that TikTok poses serious national security concerns.

TikTok and its parent company, ByteDance, are Chinese-owned entities with ties to the Chinese Communist Party.

And after a Chinese spy balloon floated over our country a few weeks ago, I think its obvious to everyone that the Chinese Communist Party is hostile to the interests of the United States and spies on American citizens.

And I can think of few better or easier ways to spy on American citizens or manipulate American public opinion than to make use of a popular app that is used by over 100 million Americans.

In the United States, of course, we have the Fourth Amendment to the Constitution to protect the data Americans provide to apps from being seized by the government.

But the Chinese Communist Party has no such restraints.

In fact, Chinese law requires social media and technology companies to provide information including individually identifiable personal information to the Chinese government when asked.

So there is no legal framework in China to effectively protect TikTok users or users of any China-based app from having their personal information turned over to the Chinese Communist Party.

And there are already concerning signs that TikTok users personal information is not secure.

It was reported last year that China-based employees of ByteDance had repeatedly accessed private data from TikTok users in the U.S., despite TikToks claim to the contrary.

And in December 2022, it was found that ByteDance employees inside China used the app to obtain the locations of journalists who worked on stories highlighting TikToks national security risks.

This obviously has implications for Americans personal security and privacy.

And it raises troubling questions about how the Chinese Communist Party could use TikTok for its own ends, whether thats using personal data to develop sources for espionage or manipulating content to advance the Communist Partys agenda.

Mr. President, TikTok is not the first time technology from a hostile nation has posed a serious security concern.

Before there was TikTok, we had to engage in a protracted effort to remove technology from Chinese companies Huawei and ZTE from our telecommunications networks after U.S. security officials raised concerns that much of Huaweis and ZTEs equipment was built with backdoors giving the Chinese Communist Party access to global communications networks.

The digital age has come with enormous benefits, but it also comes with substantial new threats not least the threat of a hostile foreign government exploiting communications technology for nefarious purposes.

And that threat increases substantially when were talking about technology from hardware to social media apps produced by companies in hostile nations and affiliated with hostile governments.

In recent years, a number of foreign companies in the information and communications technology space many of them subject to the control of hostile governments have gained significant market share.

Current law provides some remedies for confronting the dangers these companies present.

For example, the Committee on Foreign Investment in the United States, or CFIUS, can block attempted investments from foreign companies if these investments are determined to present a national security risk.

But the authorities the federal government currently has were fashioned in a pre-digital age, and therefore not designed for the specific threats posed by digital technology controlled by foreign-adversary nations.

And as a result the federal government is limited in what it can do in situations like the one we currently face with TikTok.

What is needed is a comprehensive framework for responding to national security risks posed by foreign-adversary-owned digital technology whether thats TikTok, or some other app, or mobile phone technology, or internet hardware.

While CFIUS has the ability to address some risks, the reality is that the mere presence of a technology from a foreign adversary in the United States does not trigger CFIUS review.

For a tech platform that does not acquire, merge with, or invest in a U.S. company, CFIUS review does not apply.

So, for example, WeChat, the other Chinese-controlled app that President Trump sought to ban back in 2020, is apparently not subject to CFIUS review.

Legislation is necessary to fill this important gap in authority.

Thats why earlier this month Democrat Senator Mark Warner chairman of the Senate Intelligence Committee and I introduced the Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act, or the RESTRICT Act which now has the support of 18 senators from both parties.

Our legislation would create a comprehensive process based at the U.S. Department of Commerce for identifying and mitigating foreign threats to information and communications technology products and services.

I want to emphasize that the authorities of the RESTRICT Act only apply to six foreign-adversary countries: China, Russia, North Korea, Iran, Venezuela, and Cuba.

Under our bill, the Department of Commerce would review any information and communications technology product from these countries that is deemed to present a possible security threat, with an emphasis on products used in critical telecommunications infrastructure or with serious national security implications.

And the secretary of commerce would be required to develop a range of measures to mitigate the danger posed by these products, up to and including a complete ban on the product in question.

The bill would also ensure transparency by requiring the commerce secretary to coordinate with the director of national intelligence to provide declassified information on why any measures taken against foreign-adversary-owned technology products were necessary.

Importantly, the RESTRICT Act also requires the secretary of commerce to act within 180 days after initiating a review.

A common complaint about the ongoing CFIUS review of TikTok is that it has been open-ended and taken years to complete.

By comparison, the RESTRICT Act requires quick action to take the necessary steps to mitigate an undue risk from technology of a foreign-adversary nation.

Mr. President, there is bipartisan acknowledgment that TikTok poses a national security risk.

And the RESTRICT Act provides a framework for confronting both current and future risks.

Im grateful to both Republican and Democrat colleagues for joining Senator Warner and me to introduce this bill.

Its time to update our laws to ensure that we are able to confront the national security threats posed by foreign-adversary technology.

And I look forward to working with colleagues from both parties, in both chambers, to advance the RESTRICT Act and get it to the presidents desk.

Mr. President, I yield the floor.

See more here:
Thune Discusses Bill to Combat National Security Risks From ... - Senator John Thune

What if a constitutional right meant to guarantee your security was actually a license to harm or even kill you?

Thats the premise for the James McCormick Mitchell Lecture, the School of Laws signature lecture series, to be held April 7. The address is titled Race, the Supreme Court, and Police Power.

The speaker, UCLA School of Law Professor Devon W. Carbado, is a renowned scholar of constitutional law, criminal procedure and critical race theory. His widely acclaimed book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, published last year, argues that the U.S. Supreme Courts decision to treat unreasonable police tactics as reasonable under the Fourth Amendment has shortened the distance between life and death for Black people.

Many forms of policing that people find troubling are perfectly legal under a particular body of constitutional law Fourth Amendment doctrine, Carbado writes. Over the past five decades, the Supreme Court has interpreted the Fourth Amendment to allocate enormous power to the police: to surveil, to racially profile, to stop-and-frisk, and to kill.

Carbado will develop those themes in his April 7 appearance in the Charles B. Sears Law Library in OBrian Hall, North Campus. The event, from noon to 2 p.m., includes a discussion with UB Law faculty members Alexandra Harrington, associate professor, and Athena Mutua, professor and Floyd H. & Hilda L. Hurst Faculty Scholar. A reception will follow.

Police victimization of people of color is an obvious moral scandal., says Michael Boucai, professor of law and chair of the schools Mitchell Lecture Steering Committee. Far less evident are the legal mechanisms enabling it. Thats what makes Professor Carbados recent work so necessary. His description of the problems constitutional architecture is unmatched in acumen and accessibility.

A 1994 graduate of Harvard Law School, Carbado holds the Hon. Harry Pregerson Professor of Law chair at UCLA School of Law; he joined the faculty in 1997.

The event is free and open to the public. Registration is available online.

The Mitchell Lecture series was endowed in 1950 by a gift from Lavinia A. Mitchell in memory of her husband, James McCormick Mitchell. An 1897 graduate of the Buffalo Law School, Mitchell later served as chairman of the Council of the University of Buffalo, which was then a private university.

Justice Robert H. Jackson delivered the first Mitchell Lecture in 1951, titled Wartime Security and Liberty Under Law. The lecture was published that year in the first issue of the Buffalo Law Review.

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Mitchell lecture to address race, the Supreme Court and police power - University at Buffalo

STAMFORD A U.S. Court of Appeals has ruled that police violated the free-speech rights of Stamford resident Michael Friend, who was arrested in 2018 for holding up a sign saying Cops Ahead near where city police were conducting a distracted-driving operation.

"This decision is a solid affirmation of the fact that people have the right to protest the police," said Elana Bildner, senior staff attorney for the ACLU Foundation of Connecticut and an attorney on the case. "When Michael Friend held up a sign on a Stamford sidewalk to alert people to police activity, he was well within his First Amendment rights, and Stamford police never should have arrested him. This decision is good news for protesters rights and should serve as a reminder to all police in Connecticut that they cannot and should not silence speech like Mr. Friends."

But attorney Elliot Spector, who represents Lt. Richard Gasparino, the officer who arrested Friend, maintains that his client was just doing his job and said he plans to file a motion for summary judgement, claiming Gasparino had "qualified immunity."

"An officer in (Gasparino's) position at the time would believe that he is acting in good faith," Spector said. "There is no clearly established lawthat would inform him that his actions are unconstitutional."

Spector also cited cases from the United States Supreme Court and lower courts that "would inform officers under similar circumstances that (Gasparino's) actions were constitutional."

The legal dust-up stems fromApril 2018 when Gasparino then a sergeant arrested Friend and charged him with interfering with police.

According to a lawsuit filed by Friend shortly after his arrest, Friendcreated a sign reading Cops Ahead, after he saw Gasparino standing near where police were conducting the distracted driving detail and alerting other officers to motorists allegedly violating the states distracted driving law.

Gasparino reportedly approached Friend, told him to stop and took the sign away. Gasparino threatened to arrest Friend when he started recording the officer with his phone, according to the suit.

Friend then made a bigger sign reading "Cops Ahead" and moved to another location. Friend was arrested after he recorded Gasparino when he approached again, the suit states.

After his arrest, Friend was held on $25,000 bond until a bail commissioner released him on a promise to appear in court. A Stamford judge dismissed the charge on May 7, 2018.

In his lawsuit, Friend alleged that Gasparino violated his First Amendment right to freedom of speech and his Fourth Amendment right againstmalicious prosecution. Friend also claimed the City of Stamford violated his 14th Amendment rights to due process and equal protection.

In 2020, a federal judge threw out Friend's suit, claiming that it was "questionable" whether Friend's actions rose to "the level ofexpression of an opinion related to a matter of public significance." Even if Friend's actions constituted an exercise of free speech, that court claimed that Gasparino's actions were acceptable because he and his fellow officers were "saving lives by stopping distracted driversand issuing citations for their behavior."

But the Court of Appeals disagreed.

In a decision issued Feb. 27, 2023, the U.S. Court of Appeals vacated the earlier findings that Gasparino violated Friend's rights to free speech and freedom from malicious prosecution.

"The district court erred when it held that Friends arrest was supported by probable cause and that Gasparinos actions did notviolate Friends First Amendment right to freedom of speech," the findings read.

The 29-page decision said, among other things, that "The district courts suggestion that only 'expression(s)of an opinion related to a matter of public significance' merit First Amendment protection is unsupported in our case law."

However, the Court of Appeals did uphold the district court's ruling showing that the City of Stamford didn't violate Friend's Fourteenth Amendment rights to due process and equal protection.

"The City is pleased the Second Circuit upheld the District Courts grant of summary judgment in its favor," said Barbara L. Coughlan, Assistant Corporation Counsel, City of Stamford.

Excerpt from:
Court supports suit of Stamford man with 'cops ahead' sign - Torrington Register Citizen