"DVD-Jon" Faces Retrial 366
An anonymous reader submits: "Norway's special division for white-collar crimes, Økokrim, has decided to appeal the acquittal of 19-year-old Jon Lech Johansen, accused of copyright violation for helping bypass DVD code protection, web site Nettavisen reports."
A bit surprised (Score:5, Informative)
However my concerne now is that if the appeal goes through (I believe that - in Norway - most appeals at this level do) it will be tried in front of a jury, which means this case can be on hold for ever. In the previous instance they had trouble finding only 2 laymen who could understand the technicalities of the case.
Re:Is that even legal? (Score:2, Informative)
In the US, prosecution would have to find new evidence. Also, in the US, someone could get acquitted at the state level, but re-prosecuted at the federal level. For example, the cops who beat up Rodney King were re-tried at the federal courts (and found guilty), after being let loose in CA state courts.
Re:Bizarre (Score:3, Informative)
Re:Is that even legal? (Score:5, Informative)
1) You cannot be tried for the *same* crime twice, however, prosecutors can amend or change the crimes in which you are being tried for ie: you are no longer tried for the murder of Joe, just maybe a nice inditement of manslaughter.
2)Double Jeopardy doesn't count on appeal. Normally the losing side can appeal if there was a trial error or they want to fight a ruling the judge made on a point in the trial (including evidence that shouldn't have been, allowing a surprise witness - a procedural error).
3) Unlike the Movie - you CAN'T be tried and convicted for killing someone (for instance) and then actually kill them. Those are actually TWO separate crimes. Makes for a good movie, but the law isn't paid attention to. That's where you just have to sue the state for negligence, or whatever fancy scheme you can get your lawyer to concoct.
server melting.... melting.... (Score:5, Informative)
Re:NAZIs (Score:3, Informative)
Re:Defendant's rights? (Score:2, Informative)
Re:I guess Double Jepordy exist in Norway (Score:3, Informative)
What happened in LA and elsewhere is that the defendants were charged with a crime in two different jurisdictions. In the US, the state and federal governments are sovereign and each has a fair crack at any defendant. The federal government has not historically performed general police duties outside of military bases and the like (although this is starting to change, a troubling prospect to many people), but it has passed some limited laws to cover those cases where local authorities appear indifferent to Constitutional rights. That's why there were federal laws passed to protect civil rights workers in the 50s, and those same laws were used in the recent cases after, and only after, the defendants were acquitted in state courts.
Re:Is that even legal? (Score:2, Informative)
So no Double Jeopardy.
Re:A bit surprised (Score:5, Informative)
There's only one thing in the verdict that was not completely clear, and that would be the conclusion if the prosecutors had tried to prove that DeCSS had been used for unauthorized copying. They didn't try to prove that, and that was noted in the verdict. That might be one thing they will try to work on I guess.
Right now, there is no news, really, other than "yeah, we'll appeal". They have to come up with the documents by tomorrow, that is when the interesting things happen.
Another thing I can't understand that there are somebody who would want to put their career on the line for this case. The reaction after the acquittal was pretty clear among computer professionals and the press, it was a win for consumers and a big loss for Økokrim.
On one hand, I really hope they get another big loss, OTOH, it is hardly something to cheer for that we do not have a working computer crime unit. If somebody breaks into my box, I want them spanked, but I really can't report any such breakin to a police unit as corrupt as ours, as that would lend their objectionable political agenda some legitimity. I think many if not most of Norway's computer professionals feel the same.
Re:A bit surprised (Score:5, Informative)
The norwegian system is built up by three stages: Tingretten, Lagmansretten and Høyesterett (the supreme court.) In that order. The first instance - where Johansen was acquited - consisted of one professional judge and two laymen. The second instance consists of a jury with where a person must be found guilty by at least half the members (or maybe it was 2/3.) The supreme court is much like the american with 7 (I think) professional judges.
There is no such thing as double jeopardy in Norway, but you don't automatically get a re-trial based on an appeal. Between the first two stages (where the case is now) I believe it's possible to appeal simply because you disagree. This means that if you can argue your appeal well, introduce new evidence or something like that you get a re-trial. However you can only appeal to the supreme court based on wrong utilisation of the law, interpertation of the law or technical errors in which they can either order a re-trial, adjust the sentence or dismiss the case.
Now I've probably missed a great deal of points and said things that aren't correct, but this should enlighten you're view on the Norwegian courts. (Which believe it or not differ from the American.)
Re:Is that even legal? (Score:5, Informative)
As you say, a second sovereign -- e.g., the federal government, after a state trial -- can try you separately, whether or not you are acquited in the first trial, without violating double jeopardy, but many states' laws still would prevent them from being the second trial. In copyright cases, though, this is irrelevant, since states can't enforce copyright laws (as defined in federal law).
Yes, IAAL.
Not quite true.. (Score:2, Informative)
I quote http://www.lectlaw.com/def/d075.htm:
"the courts have decided that since the state and federal governments are separate sovereigns and therefore successive prosecutions based on the same underlying conduct do not violate the Double Jeopardy Clause if the prosecutions are brought by separate sovereigns. See, e.g., U.S. v. Koon, 34 F.3d 1416, 1438 (9th Cir.'94)"
Which is essentially what has happened here. The case is tried at a local level and being appealed to a regional court.
Re:You can appeal an ACQUITTAL in Norway? (Score:5, Informative)
Not sure about the legal system in Norway, but in the U.S. and Canada, appeals must be based on possible mistakes of law or mixed fact/law at the trial level. This can result in a different verdict, or in a trial de novo. The intention, however, is not usually to retry the case. Rulings regarding fact usually remain intact from the trial level, unless there has been some obvious gross error.
Seriously, what's so strange about it? If trial judges can make mistakes of law in favour of the prosecution, they wouldn't occasionally do the same in favour of the accused? And shouldn't the justice system be able to say: hold on! That piece of evidence should have been admitted (or whatever the alleged mistake was)
How appeals work, in general (Score:5, Informative)
I know nothing about non-U.S. legal systems, and hopefully somebody who knows about Norwegian jurisprudence will answer, but the general principle behind appeals in legal systems is this:
The first court that tries you is the finder of fact. Unless that whole trial is thrown out (and you get a new one), the facts determined in that trial are beyond question in the process. However, the court has to apply rules to the process of the trial and to the facts that come out, in order to get an outcome. Those rules can be both formal laws and legal procedures. (In real life, the line between facts and rules gets blurred, which both sides try to use to their advantage, but that's a different topic.)
Appeals apply to these rules, not the facts. So an appeal isn't just a second chance to start over and get a different trial outcome. It is a challenge that the process in the previous trial was in violation of those rules in some very specific way. (Or, many specific ways, since most appeals are a laundry list of possible violations, hoping the appeals court will find at least one they like.)
This is true already in the U.S. when those found guilty appeal their convictions, or when either party in a civil trial appeals the outcome. This is why appeals often force the original trial to be thrown out: they clarify the application of a rule as it applies to this case, then you have to start over and apply that rule correctly this time.
There's no reason in principle that this couldn't be applied to appealing acquitals as well. In principle, if somebody is acquitted because a judge made a mistake in applying a rule about admissibility of evidence or jury instructions, it might be reasonable to say that the acquital was flawed, and is contrary to justice, and shouldn't be honored.
There's a question of rights, which is a big one. There's also a questions of "That's not how we do it in the U.S.!!!!", which, if it isn't backed up with something else, isn't much of an argument. But I'm just speaking to the principle of appeals in general terms.
IANAL, yadda.
Re:Is that even legal? (Score:5, Informative)
1) You cannot be tried for the *same* crime twice, however, prosecutors can amend or change the crimes in which you are being tried for ie: you are no longer tried for the murder of Joe, just maybe a nice inditement of manslaughter.
Wrong. Since the facts needed to prove murder are sufficient to prove manslaughter, this prosecution would indeed violate double jeopardy. The second charge needn't be identical to the first.
2)Double Jeopardy doesn't count on appeal. Normally the losing side can appeal if there was a trial error or they want to fight a ruling the judge made on a point in the trial (including evidence that shouldn't have been, allowing a surprise witness - a procedural error).
Wrong again. Once jeopardy has "attached" -- the swearing of the jury, or of the first witness in a bench trial -- the prosecution cannot appeal. Again, it makes no difference how profound the alleged errors are. In a well-known case, the judge dismissed the charges because he wrongly believed the prosecution had done something unethical, which the judge didn't even have jurisdiction to do; but a retrial was barred nevertheless.
OT, but "allowing a surprise witness" would not typically be reversible error in any case.
Re:A bit surprised (Score:2, Informative)
Re:Is this justified? (Score:5, Informative)
That a product, program, or any tool for that matter, can be used to circumvent the law or do ill, does that mean that the tool is evil? Hardly. A tool is neither good nor bad, so long as it performs the task it was designed for in an adequate manner. Those kind of value judgements must be reserved for the person that employs that tool...
Is a gun inherently evil? Sure, there are many that use it for malicious purposes, but what about when the gun is in the lands of a legitimate authority? What about when it is in the hands of a potential rape victim?
Prosecute the Pirates. Prosecute the thieves. Don't buy materials from questionable sources. I'm not one of those people that thinks the "Industry" has no right to make a dollar. Still, the tool is not the problem. It is the people that choose to misuse it.
I don't think it is the company's right to determine how I use their product. If I have paid the same $22.00 for a DVD as my Windows using counterpart, how am I causing harm to Hollywood by viewing the movie on my own Linux running system? Have I hurt their revenue? Did I steal their intellectual property? Does my use of Linux automatically mean that I will decrypt their DVD, and spread it across the Internet free of charge?
What is the difference?
If anything, the movie industry should be going out of their way to put as many DVD players out there in the world as possible. They should have authored their own Linux DVD software, because it is beneficial to them to do so. The more players in existance, the more movies they are likely to sell. This seems evident to anyone with even a cursory understanding of economics.
Short of producing such a software player themselves, they certainly shouldn't mind that someone else has saved them the trouble.
The piracy issue is a strawman arguement. DeCSS doesn't make a DVD any more "pirateable." You needn't break the encryption in order to take a single DVD, and duplicate it. You can produce duplicates without even attempting to decrypt the software, simply by making a bit-for-bit copy.
What DeCSS does allow for is the conversion from one format to another... It allows you to take a DVD, and from it, procude VCDs, etc. That's hardly a threat though. They are lower density, and lower resolution. Nobody would rather have a VCD than the corresponding DVD. In any event, VCD production poses the most minor of threats to the revenue streams of the movie industry.
In any event, this is definately a new reason not to move to Norway. I had no idea that "Double Jeopardy" protection wasn't commonplace in most of the "Free" world.
Re:Defendant's rights? (Score:2, Informative)
Also, most people think that it's common for the defense to appeal and win. It's not - in California, at least, it's a percent or two of cases at most.
Re:You can appeal an ACQUITTAL in Norway? (Score:3, Informative)
Re:Sigh (Score:3, Informative)
Two other points, as long as I'm writing:
1) Even under US law, double jeopardy only applies to criminal charges, not civic suits. Of course, trying to make that distinction is even tougher than explaing that Johansen isn't being charged with a DMCA violation.
2) If they feel it is fair, legal, whatever, that is their system, their law, their right. -- I'd agree with that more if the Europeans spent less time whining about the death penalty in the US (which their own citizens support with majorities or large minorities, but that's another issue...).
Re:Okay, screw the European critics (Score:1, Informative)
Re:You can appeal an ACQUITTAL in Norway? (Score:3, Informative)
ONE recent case (in the Seventh Circuit) allowed a retrial where the acquital was a result of bribery (!!!) (on the grounds that the tainted trial was no "trial" at all), but the court didn't reach the merits of the issue, and the better rule is to prohibit retrial even in this situation.
Re:You can appeal an ACQUITTAL in Norway? (Score:2, Informative)
Re:You can appeal an ACQUITTAL in Norway? (Score:4, Informative)
In the U.S., Double jeopardy absolutely bars prosecution appeals. Totally and completely. That's why you never hear about them, or see them in movies: they don't exist.
That's right. Even if the judge totally screws up. Whether it's law or fact. (And, for that matter, defendants are free to appeal decisions of fact; they just face a higher burden of persuasion.)
Now, why don't you wait until we're discussing something you know something about for your next post, huh?
Re:Defendant's rights? (Score:2, Informative)
Here we have city courts, 2 country courts (east + west) and the high court. Any pary can appeal. But it usually requires something special about the case before it can be appealed to the high court. And of course you can always take it to the European Union human rights court (Not in Norway since they are not a member).
Just today in Denmark, the prosecutor appealed a case where 5 workers who supposedly raped a girl at a party was found not guilty in rape.
ANother major difference between Europe and the USA is that in the USA the facts are second to the persons rights. In Europe the truth comes before the individual. So if the police gets some evidence in ways not legal, it is still evidence - But the police will be prosecuted for breaking the law in an independent case. I think this is way better than the US way of releasing guilty people because the evidence was discovered based on something not legal.
Once. Not over and over. (Score:3, Informative)
But once the case has gone through that process, you can not be retried for the same crime. So it is still not possible for the gevernment to harass people by retrying them again and again in perpetuity, which was the abuse of power the US constitution "double jeopardy" rule was designed to avoid.
Re:How appeals work, in general (Score:3, Informative)
In the US it's called double jeopardy and is explicitly forbidden by the constitution. If the judge screws up the process and you are aquitted it is final. The government does not get the chance to try try again.
I *think* there is an exeption if you are later convicted of jury tampering, bribing the judge or something similar. I believe in that case they declare that you didn't really get a trial the first time therefor double jeopardy does not apply.
I think another exception is that seperate governments can try you for the same crime - New York State and the the US Federal court for example. But every other state must abide by the New York State verdict (based on the "full faith and credit" clause of the constitution). So California can't try you.
An while we are on the topic of double jeopardy I'd like to vent one of my pet peeves. The movie "Double Jeopardy" was bullshit. If Ashley Judd killed her husband at the end of the movie she would have been tried and convicted - again. It would NOT have been double jeopardy. Breaking the same law on a different date is a completely seperate instance of a crime. If you rob a bank in Janyary and you rob the same bank in June you can be convicted of both robberies - two seperate crimes.
But of course all of this only applies to the United States, and naturally I am not a laywer.
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Re:GREAT news! (Score:3, Informative)
That would be quite an achievement - considering the fact, that Norway isn't a member of the EU.
Rumagent
Re:A bit surprised (Score:1, Informative)
Re:fark linked article says otherwise (Score:3, Informative)
The original 2000 conviction and death sentence were overturned by the Virginia Supreme Court when the justices ruled that the older girl's murder and her sister's rape were not parts of the same crime. Under Virginia law, that is a necessary element for capital punishment. The murder has to be "aggravated" by some other crime, like a rape or a robbery, in order to become a capital murder.
According to the authorities, his motive was the fact that the murder victim had been dating a black guy. (To get a feel for the type of genius we're talking about.) In the letter, he explained how he stabbed and killed the older girl after she resisted his attempts to rape her. Then he drank an iced tea, sat down on the couch, and smoked a cigarette, while he waited for her younger sister to come home from school so he could rape her.
In the earlier trial there had apparently been no physical evidence of any attempted rape of the older girl, and she was dead and not talking. So the capital murder conviction was predicated on the younger girl's rape being part of the same crime. By declaring them as being two separate crimes, the court had decoupled them, rendering the capital murder conviction invalid. But the letter blew this logic out of the water, by establishing that there had been an attempted rape of the older girl (a crime for which the defendant had not been tried) and by providing continuity between the crimes inflicted on each of the two sisters. Since there had never been an acquittal, only an overturned conviction, the prosecution was free to try the case again in light of the new evidence.
What's interesting is the intense personal relationship that seems to have developed on both sides between this guy and the prosecutor. This is what apparently incited the stupid letter in the first place.
"Since
What a dumbass!
Re:Legitimate use (Score:3, Informative)
The warnings on tapes have no legal force whatsoever.
Re:You can appeal an ACQUITTAL in Norway? (Score:2, Informative)
Without protection against n(where n>1)-tuple jeopardy, the bully (state) with (comparitively) infinite resources, gets to keep calling "do-overs" whenever they lose, exhausting the victim's resources. Sure, you can win once, but if you keep having to go back and fight the same fight every time you win, without resting, until you eventually lose, you will eventually reach that end condition.
Can a Norweigian fill in some details here? Is there any provision against "ex post facto" laws? If not, the state can simply adjust the rules until they win.
Sorry for the rant, but even here, we get crap like somebody getting acquitted of a crime, then re-tried for "conspiracy to commit" the crime they were acquitted of, essentially saying "well, maybe he didn't do it, but he wanted to, so let's punish him anyway". I do find intent to be infinitely more significant than the actual offense (Why does a murderer avoid capital punishment because he's incompetent?), and feel that attempted murder(and all other violent crimes - rape, assault) should be a capital offense, once someone is acquitted for an incident, that should be the end.
Anyway, what happenned to the "enlightened" europeans?
Re:You can appeal an ACQUITTAL in Norway? (Score:1, Informative)
First, make no mistake: We are not the barbars you think any longer... =)
But our justice system is OLD - we invented this under the viking age. So our justice system has a long tradition.
Second - our courts are NOT run by jurys. We don't use jurys. The only case a nordic court uses a jury is in cases agins the press. In my opinion this makes our court better than the angloxacian system. That we don't use a jury don't mean that the people don't have a voice since we use a different system - we have selected officials that sits in. These guys are selected by the local politicians. The benifit is that they are actually willing to serve.
In the swedish lowest court there is one judge and (if I remember this correct) three officials. A judge has two votes. Anyway, the point is that the judge can be voted over - the majority of the court rules. In the second court the judges have more votes since they are two and has two votes each. In the supreme court there is only judges.
Third - our prosecutor are not political selected. This mean that the state in a nordic country have a proffesinal workforce that don't have a political mind. We think this is very important since we don't want political motivated trials.
Forth - a prosecutor has to try a case when you break a criminal law.
Fifth - a prosecutor has to be sure to win a case to try it (we don't want unmotivated trials). This means that a case that the prosecutor don't think have enough evidence will not be tried at all.
Sixth - you can apeal any rulings of the first court. All parties can apeal. However, a prosecutor are not supposed to appeal if he don't have more evidence or if the court was divided in their decision (they usually appeal if the judge don't agree with the rest of the court).
Seventh - all apeals have to be made in a limited time.
Eigth - you can ONLY apeal to higher courts.
This means that any party can only appeal once since the supreme court don't have to take the case (they only take case that are important as a guide for the lower courts). As you se this mean that the state can't continue to apeal you until you die.
Ninth - the state pays your legal fees if you are facing criminal charges. In civil cases the losing party pays.
Tenth - the supreme court can rule that your trial have to be remade in the second court if new evidence has emerged that would make you free.
All this sums up to this:
If you win in the first court you will most probaly win in the second court. You can only be tried once for each crime.
The EU have approved our court system. Norway isn't a EU country but follows EU rules since they have an agreement with EU.
Death penalty has no public support in Europe (Score:2, Informative)
Here, sir, you are terribly wrong. Death penalty has had no real support for over a half century in the majority of European countries (i.e. any of the EU members and alike). Otherwise any of the populist governments elected during that time had brought it back ages ago. Death penalty is generally deemed passe. Vulgar. Barbarian. Just as uncivilised and backward as the mutilating of petty thieves in Arab countries.
(And how telling is it that only two "Western" nations, both with a very spotty human rights record, have it implemented anymore.)