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Archive | July, 2015

Live from Phoenix

OK, a little late from Phoenix. From the status conference today in the Melendres case:

  • Larry Klayman did not appear, and Judge Snow did not rule on his pro hac vice application. Klayman is given until the next status conference, August 10, 2015, to answer questions from the Court.
  • The Court Monitors are making arrangements for 20 interviews.
  • One of the hard drives that was supposed to be turned over to the court is in possession of Chief Knight (since last April), who had done some copying from it. The judge ordered that the original hard drive be turned over that in the mean time that it not be connected to anything (where it could be altered).
  • Parties may stipulate that the 50 hard drives are junk to save time.
  • Now we learn there are 3 binders full of something that Detective Mickiewicz gave Chief Knight also.
  • If there is a basis for criminal contempt or criminal referral, it will be made to the U. S. Attorney and the U. S. District Court.
  • ACLU attorney Wang believes that there are new grounds for civil and criminal contempt. A Friday meeting at MCSO a week prior to the IDs and hard drives being seized by U. S. Marshals could be a violation of the Judge’s orders.
  • Former Arpaio attorney Tim Casey will be deposed and prefers that Judge Snow is present.
  • There was a sealed portion of the status conference at the end.
  • Judge Snow ordered a bunch of stuff to be turned over–read his order for details.

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Paul Irey provides proof: He doesn’t know as much about scanners as he thinks he does

When I was in high school my math teacher presented a “mathematical proof” that 1 = 2. The object of the lesson was to demonstrate how errors can be made in a proof, not some profound flaw in arithmetic. By the same token when a birther publishes a “forensic proof” that President Obama’s birth certificate is a forgery (given the many confirmations and certifications of it) the most likely to be fruitful approach is to look for a flaw in the proof. This is the case with the latest from Paul Irey, a man who is no stranger to fallacious proofs that Obama’s birth certificate is a forgery.

We know from the work of NBC, Kevin Vicklund and Reality Check, that President Obama’s published long form birth certificate PDF file has hallmarks of having been scanned to PDF on a Xerox WorkCentre model (probably a 7655) and then rotated and saved using Preview on a Mac computer. The logical approach to determining whether Obama’s birth certificate image is a scan of a real document or a “computer-generated forgery” would be to compare it to a real document scanned on a Xerox machine and rotated and saved on a Mac (or to compare it to a computer-generated forgery) and look for differences. For some reason, birthers prefer not to do either of these. They prefer to compare the PDF to what they imagine a real scanned document would look like and draw conclusions that only a serious expert in the field could do. (They also look at other birth certificate images created at different times, under different conditions, and with different technology.)

Interestingly a birther actually came up with the flaw in Irey’s latest claim (“New Additional Evidence Proving Obama Birth Certificate and PDF Document a Computer Made Forgery – The Smoking Gun – by Paul Irey”) that part of the border edge of Obama’s certificate is missing. The commenter “therak” said at the Las Vegas Guardian web site July 29, 2013:

Give me the recipe. Explain not only the Xerox Workcentre 7655 model… but what software and what SETTINGS to achieve ALL THE NOMALIES (sic)  seen in the birth certificate. I notice the explanation tries to say a feature called “Edge Erase” causes the clipping mask that hides information (to explain that anomalie (sic)). Uh… hate to break it to you… but “Edge Erase” Deletes (OR CROPS) information… not HIDE it… thus that excuse doesn’t work.

Irey removed the clipping mask added to the PDF by the Mac Preview, but as “therak” says, the Xerox “edge erase” feature deletes information, about a tenth of an inch of the border, and that cannot be recovered. So when Irey compares the photograph of the actual birth certificate taken by NBC News’ Savannah Guthrie to the scanned PDF version, indeed part of it around the edge is missing, exactly as it should be. The difference between the scan and the photograph is also evidence that the photograph is not derived from the scan.

Irey also claims that various birth certificates have different printed widths, but I showed long ago that at different times birth certificates were photocopied with different reductions (all modern copy machines reduce images to some extent to prevent photocopying currency).

Irey further says: “… I have taken a top right section of 10 assorted sheets from a ream of the [security] paper to show that the cut is always close to the vertical basked weaves along the right side of the paper.” The first basic question one might ask is, what does “top right” mean on a piece of security paper? I mean, how do you know it’s not the “bottom left”? Of course, there is no way to make such a distinction. I looked at more sheets of the security paper (I have a box of it too) and what Irey says is not actually true in general (it’s not even true for the images Irey shows in his report!).

Some of us were stunned when Paul Irey said on Reality Check Radio that he knew Obama’s birth certificate was a forgery before he even looked at it. All this time he has been trying to prove a false statement, and that is logically impossible. Birthers make the jump from anomaly to forgery, analogous to making the jump from 1 = 2 to “arithmetic is wrong.” They need to first look long and hard at their proofs before jumping to conclusions.


Conflict! Arpaio vs Klayman


What a pretty kettle of fish this is.

Larry Klayman appeared briefly before Judge G. Murray Snow in the Melendres case on July 20 to argue that certain material supplied by  Dennis Montgomery to Sheriff Arpaio should not be shown to the Department of Justice. Klayman has applied for admission pro hac vice to represent Montgomery’s interests in the case, although he is not a party to the litigation.

Speaking to the Court, Klayman said that he did not have a conflict with Sheriff Arpaio but in an Email from Arpaio to Klayman (the email was handled by Amy Lake since Sheriff  Joe himself doesn’t do email) Arpaio does, saying (in a document disclosed today):

Your e-mail indicates that you represent Mike Zullo and Denis Montgomery. That would, and does, create a conflict here in Arizona.

Klayman represents Arpaio in a lawsuit against Barack Obama, a frivolous matter IMO, but Arpaio wants noting to do with him in the Melendres case. Further interest is generated by the mention of Mike Zullo who in prior emails expressed displeasure with the work product produced by Montgomery (as did the Sheriff’s Office).

Arpaio paid Montgomery at least $120,000 for “junk” and Zullo paid him $10,000 or more for software that didn’t work, but  Klayman wants to participate in a case representing Montgomery (and I guess Zullo) where Arpaio is a party, and where Klayman might well be a witness!

This is all hopelessly tangled in conflicts of interest, and I cannot see any way that Judge Snow is going to let Klayman anywhere near the Melendres case.



Every nut-case Obama conspiracy theorist on the planet probably knows Barack Obama’s social-security number. It leaked out through a redaction error when Obama’s income tax filing was published. Remove the little black overlay, and voila, the number in all of its glory. The number was then publicized by Orly Taitz who included it in a court filing, marked out poorly (You can read about that in the article: “Somebody buy Orly a new black marker, please!”) at

Millions of court documents are filed every year, and the federal PACER system makes many of them available to the public. Court rules require redaction of certain information such as social-security numbers and dates of birth, but that doesn’t mean it always happens. Sometimes it’s not redacted at all, and sometimes unredacted through a technical error. I found an unredacted social-security number in a court document once and I notified the clerk of court by email of the violation. The reply I got back was that it wasn’t the court’s problem, that I should contact a party in the case.

It turns out that there are literally thousands of examples of such unredacted private information in the federal court system and this is the subject of an article and study by Timothy B. Lee at the Freedom to Tinker blog: “Studying the Frequency of Redaction Failures in PACER.”

Over the years, I have seen several articles published for the legal community on redaction. (A pet peeve of mine is that one has to buy the Professional edition of Adobe Acrobat to get its redaction feature.) The NSA has tackled the issue in 3 papers included in the reading list that follows.

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County settles other Arpaio lawsuit–mostly

The Department of Justice’s civil rights lawsuit against Sheriff Joe Arpaio, alleging a pattern of behavior including retaliation against the Sheriff’s political enemies, was settled on most counts by Maricopa County this past July 16. A bench trial had been scheduled in United States of America v. Maricopa County of et al (2:2012-cv-00981) to begin in August and to last 15 days. (Joe Arpaio is part of the et al).

Basically, the settlement agreement states that Defendants will put policies and procedures in place so that these abuses won’t happen again and promises to stop doing bad things. Some of the issues had been addressed previously by changes in the Sheriff’s Department, the Melendres lawsuit, and prior lawsuits involving the retaliation issue.

Some have expressed concern over the settlement because it does not bring the retaliation issue to trial. The private lawsuits over this matter were settled and the County paid out millions (about 12 and half); however, there was no admission of guilt and no trier of fact has determined that Sheriff Joe actually used his law enforcement position to retaliate against political opponents.

The original May 2012 complaint contained 6 specific claims for relief:

  1. Defendants’ law enforcement policies and practices violate 42 U.S.C. §14141 and the Fourteenth Amendment
  2. Defendants’ searches, arrests, and detentions violate 42 U.S.C. 14141 and the Fourth Amendment
  3. Defendants’ treatment of Latinos violates Title VI
  4. Defendants’ treatment of Latino LEP (limited English proficient) prisoners violates Title VI
  5. Defendants’ treatment of Latinos violates the Title VI assurances
  6. Defendants’ retaliation against their critics violates 42 U.S.C. § 14141 and the First Amendment

The settlement agreement resolves items 2 and 6, and references a separate agreement on item 4. Judge Silver has ordered parties to provide clarification of the nature of their settlement agreement, whether it is indeed a settlement agreement or a consent decree or consent judgment.

In a subsequent brief (ECF 401), Maricopa County states: “In its Motion for Stay, Plaintiff represents that, if permitted to intervene in the Melendres case, it will pursue no additional remedies in this case.” So there is a motion to stay the proceedings before Judge Silver in the DOJ case until such time as Judge Snow rules on the motion to intervene by the DOJ. Joe Arpaio agrees (ECF 402) to the stay.


The motion to intervene in the Melendres case was granted.

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