Keith: Obama administration argues for the right to frame innocent suspects
David Harmon
false testimony and withheld exculpatory evidence. The men are suing;
Solicitor General Elena Kagan argues that prosecutors should have
absolute immunity. Supreme court hears oral arguments today.
http://www.csmonitor.com/2009/1103/p02s18-usju.html
GeekGirl
I suspect a Republican administration would be doing the same.
GeekGirl
David Harmon
<just.a...@gmail.com> wrote,
>I suspect a Republican administration would be doing the same.
Well, sure. Kinda puts the lie on "Hope" and "Change" though.
David Friedman
David Harmon <sou...@netcom.com> wrote:
"If the allegations here are true, [the Iowa officials] engaged in
prosecutorial misconduct of an execrable sort, involving a complete
breach of the public trust," Solicitor General Kagan writes in her brief
to the court. "But absolute immunity reflects a policy judgment that
such conduct is properly addressed not through civil liability, but
through a host of other deterrents and punishments."
An argument that would be more convincing if the prosecutors had been
arrested and charged with the appropriate criminal offenses, starting
with perjury. Have they been? Are there any offenses they are guilty
of--assuming the plaintiffs' charges are true--on which the statute of
limitations hasn't run? A quick google suggests that it's only five
years for perjury.
As I've long argued, one problem with criminal law is that, since
prosecution is under the control of the government, it's a poor tool for
preventing misdeeds by government actors.
--
http://www.daviddfriedman.com/ http://daviddfriedman.blogspot.com/
Author of
_Future Imperfect: Technology and Freedom in an Uncertain World_,
Cambridge University Press.
David Friedman
<6d3b22f5-4c56-4e6a...@w19g2000yqk.googlegroups.com>,
GeekGirl <just.a...@gmail.com> wrote:
Almost certainly so. What's interesting, although not, I think, terribly
surprising, is that a Democratic administration is.
cryptoguy
wrote:
> In article <V86dnc0jDMhVJWzXnZ2dnUVZ_hOdn...@earthlink.com>,
> David Harmon <sou...@netcom.com> wrote:
>
> > Two men in prison for 25 years for murder after prosecutors solicited
> > false testimony and withheld exculpatory evidence. The men are suing;
> > Solicitor General Elena Kagan argues that prosecutors should have
> > absolute immunity. Supreme court hears oral arguments today.
> >http://www.csmonitor.com/2009/1103/p02s18-usju.html
>
> "If the allegations here are true, [the Iowa officials] engaged in
> prosecutorial misconduct of an execrable sort, involving a complete
> breach of the public trust," Solicitor General Kagan writes in her brief
> to the court. "But absolute immunity reflects a policy judgment that
> such conduct is properly addressed not through civil liability, but
> through a host of other deterrents and punishments."
>
> An argument that would be more convincing if the prosecutors had been
> arrested and charged with the appropriate criminal offenses, starting
> with perjury. Have they been? Are there any offenses they are guilty
> of--assuming the plaintiffs' charges are true--on which the statute of
> limitations hasn't run? A quick google suggests that it's only five
> years for perjury.
>
> As I've long argued, one problem with criminal law is that, since
> prosecution is under the control of the government, it's a poor tool for
> preventing misdeeds by government actors.
Too true, amongst other problems.
pt
Konrad Gaertner
>
> Solicitor General Kagan writes in her brief
> to the court. "But absolute immunity reflects a policy judgment that
> such conduct is properly addressed not through civil liability, but
> through a host of other deterrents and punishments."
I don't think I've ever seen that definition of "absolute" before.
--
Konrad Gaertner - - - - - - - - - - - - email: kgae...@tx.rr.com
http://kgbooklog.livejournal.com/
"I don't mind hidden depths but I insist that there be a surface."
-- James Nicoll
Keith F. Lynch
> An argument that would be more convincing if the prosecutors had
> been arrested and charged with the appropriate criminal offenses,
> starting with perjury.
Did they say anything under oath? Typically lawyers don't, only
witnesses do.
--
Keith F. Lynch - http://keithlynch.net/
Please see http://keithlynch.net/email.html before emailing me.
Keith F. Lynch
> David Harmon <sou...@netcom.com> wrote:
>> Two men in prison for 25 years for murder after prosecutors
>> solicited false testimony and withheld exculpatory evidence.
>> The men are suing; Solicitor General Elena Kagan argues that
>> prosecutors should have absolute immunity. �Supreme court
>> hears oral arguments today.
>> http://www.csmonitor.com/2009/1103/p02s18-usju.html
Any nation's greatest asset is the loyalty and trust of its people.
For instance the Soviet Union fell apart when people stopped believing
in Communism.
And I've just been reading a non-fiction book about WWII German spies
in the UK -- every one of which was known to, and run by, the UK. How
was that possible? The majority of them didn't believe in the Nazi
ideology, so they turned themselves in. And with the network firmly in
the hands of the UK, any new spy was picked up the moment they landed.
What will happen to the US when everyone fully realizes that "truth,
justice, and the American way" form two mutually incompatible sets?
And that the only reason they aren't serving a life sentence for a
crime they didn't commit is because the local prosecutor didn't feel
like it?
> I suspect a Republican administration would be doing the same.
Has anyone said otherwise? There's negligible difference between the
two major parties. Last year, people voted in the Democrats, thinking
that would make a difference. It didn't. So this year, apparently
having forgotten the Bush administration already, they've voted in the
Republicans, thinking that will make a difference. It won't.
Karl Johanson
news:hct8md$klc$6...@reader1.panix.com...
> David Friedman <dd...@daviddfriedman.nopsam.com> wrote:
>> An argument that would be more convincing if the prosecutors had
>> been arrested and charged with the appropriate criminal offenses,
>> starting with perjury.
>
> Did they say anything under oath? Typically lawyers don't, only
> witnesses do.
Any lies a lawyer says in court should be considered perjury. Judges too.
Karl Johanson
netcat
> GeekGirl <just.a...@gmail.com> wrote:
> > David Harmon <sou...@netcom.com> wrote:
> >> Two men in prison for 25 years for murder after prosecutors
> >> solicited false testimony and withheld exculpatory evidence.
> >> The men are suing; Solicitor General Elena Kagan argues that
> >> prosecutors should have absolute immunity. Supreme court
> >> hears oral arguments today.
> >> http://www.csmonitor.com/2009/1103/p02s18-usju.html
>
> Any nation's greatest asset is the loyalty and trust of its people.
> For instance the Soviet Union fell apart when people stopped believing
> in Communism.
That's not why it fell apart. It fell apart for economic reasons.
rgds,
netcat
>
cryptoguy
> GeekGirl <just.a.new...@gmail.com> wrote:
> > David Harmon <sou...@netcom.com> wrote:
> >> Two men in prison for 25 years for murder after prosecutors
> >> solicited false testimony and withheld exculpatory evidence.
> >> The men are suing; Solicitor General Elena Kagan argues that
> >> prosecutors should have absolute immunity. Supreme court
> >> hears oral arguments today.
> >>http://www.csmonitor.com/2009/1103/p02s18-usju.html
>
> Any nation's greatest asset is the loyalty and trust of its people.
> For instance the Soviet Union fell apart when people stopped believing
> in Communism.
>
> And I've just been reading a non-fiction book about WWII German spies
> in the UK -- every one of which was known to, and run by, the UK. How
> was that possible? The majority of them didn't believe in the Nazi
> ideology, so they turned themselves in. And with the network firmly in
> the hands of the UK, any new spy was picked up the moment they landed.
Cite? My impression was that it was a lot less nice than that; yes,
they were all 'rolled up' as the phrase goes, but it was a combination
of the Enigma crack letting the British know where and when agents
would be dropped, and then 'turning' them by giving them a choice
between cooperation and summary execution (some chose the latter).
It seems unlikely to me that large numbers of secretly disloyal secret
agents would have trouble getting through to an operational situation
without being detected.
pt
David Loewe, Jr.
"They pretend to pay us, we pretend to work."
--
"Socialism is the philosophy of failure, the creed of ignorance
and the gospel of envy."
- Winston Churchill
Tim McDaniel
As to whether they ought to be is one question (though I tend to agree
with you). Nevertheless, in the US, I understand that perjury applies
only to sworn testimony.
--
Tim McDaniel, tm...@panix.com
David V. Loewe, Jr
wrote:
>Karl Johanson <karljo...@shaw.ca> wrote:
>>"Keith F. Lynch" <k...@KeithLynch.net> wrote
>>> David Friedman <dd...@daviddfriedman.nopsam.com> wrote:
>>>> An argument that would be more convincing if the prosecutors had
>>>> been arrested and charged with the appropriate criminal offenses,
>>>> starting with perjury.
>>>
>>> Did they say anything under oath? Typically lawyers don't, only
>>> witnesses do.
>>
>>Any lies a lawyer says in court should be considered perjury. Judges too.
>
>As to whether they ought to be is one question (though I tend to agree
>with you). Nevertheless, in the US, I understand that perjury applies
>only to sworn testimony.
It is my understanding that lawyers and judges are "sworn officers of
the court." Surely part of that is an oath, actual or understood, to
not lie in court.
--
"Doctor, Doctor, help me please, I know you'll understand
There's a time device inside of me, I'm a self-destructin' man."
Raymond Douglas Davies
David Friedman
netcat <net...@devnull.eridani.eol.ee> wrote:
Don't you think it was a combination?
The Soviet Union was doing badly, economically speaking, for a long
time. The explanation offered was that its people were making sacrifices
for the future, catching up with the capitalist states. The present can
be observed, the future can't be, so that was a way of maintaining
support despite the visible evidence of economic failure.
Eventually people stopped believing the explanation.
Mike Benveniste
> It is my understanding that lawyers and judges are "sworn officers of
> the court." Surely part of that is an oath, actual or understood, to
> not lie in court.
Here's the form the oath takes in Iowa:
-- I will support the Constitution of the United States and the
Constitution of the State of Iowa; I will maintain the respect
due to Courts of Justice and Judicial officers;
-- I will counsel or maintain no other actions, proceedings, or
defenses than those which appear to me to be legal and just,
except the defense of a person charged with a public offense;
-- I will employ, for the purpose of maintaining causes confided
to me, such means only as are consistent with truth, and will
never seek to mislead the judges by any artifice or false
statement of fact or law;
-- I will maintain inviolate the confidence, and, at any peril to
myself, will preserve the secret of my client; I will abstain
from all offensive personalities and advance no fact prejudicial
to the honor or reputation of a party or witness, unless
required by the justice of the cause with which I am charged;
-- I will refuse to encourage either the commencement or continuance
of an action or proceeding from any motive of passion or interest;
-- I will never reject from any consideration personal to myself, the
cause of the defenseless or oppressed; and I will faithfully
discharge the duties of an attorney and counselor at law to the
best of my ability and in accordance with the ethics of the
profession,
-- So Help Me God.
As far as I know, there is no legal penalty for violating this oath.
I'll briefly address a couple of other points raised in the thread:
It's far more likely for a lawyer to be charged with suborning
perjury rather than of the offense directly. But the claims made
in this case, if true, would constitute violations of several other
laws. Like most jurisdictions, Iowa has explicit and separate
crimes for obstruction of justice, official misconduct, and
false representation of records.
All of these, including perjury, would have been state charges
and used the state statute of limitations. The federal government
could also indict for criminal civil rights violations, which
would have a 5-year limit. All of the criminal charges would
have had to been proved beyond a reasonable doubt; if SCOTUS
allows the current case to proceed it will be on a civil standard
of proof.
--
Michael Benveniste -- m...@murkyether.com (Clarification required)
I'd met so many of his kind during the war. No wonder we
lost.
Keith F. Lynch
> As far as I know, there is no legal penalty for violating this oath.
It would be interesting if there was. And if congressmen, senators,
and presidents could be imprisoned for oath breaking if a law they
pass is determined to be unconstitutional.
> The federal government could also indict for criminal civil rights
> violations, which would have a 5-year limit.
It seems unfair to run the statute of limitations, not from the time
of the crime, but from the time when the crime was remembered and
reported, in the case of child molestation, but to run it from the
time of the crime itself in cases of false imprisonment *even if the
victim reported the crime immediately*.
> All of the criminal charges would have had to been proved beyond a
> reasonable doubt; if SCOTUS allows the current case to proceed it
> will be on a civil standard of proof.
Some crimes are so shocking to the conscience that no civil verdict,
which could at most drive the perp into bankruptcy, can suffice.
Nobody thinks that O.J. got what he deserved when he was successfully
sued for wrongful death.
The punishment should be commensurate with the crime. If someone put
ten innocent people into prison for ten years each, they should lock
him up and throw away the key. And not in a "white collar" prison
unless that's where his victims were sent.
Keith F. Lynch
>> For instance the Soviet Union fell apart when people stopped
>> believing in Communism.
> That's not why it fell apart. It fell apart for economic reasons.
But its economy was much, much worse in the past. There were
years when millions of people starved to death. Why didn't it
fall apart then?
Daniel R. Reitman
<kgae...@tx.rr.com> wrote:
>David Friedman wrote:
>>
>> Solicitor General Kagan writes in her brief
>> to the court. "But absolute immunity reflects a policy judgment that
>> such conduct is properly addressed not through civil liability, but
>> through a host of other deterrents and punishments."
>
>I don't think I've ever seen that definition of "absolute" before.
In the context, it means immunity from suit. There is precedent for
prosecutorial immunity in civil rights cases (Imbler v. Pachtman), and
I'd be hard pressed to decide whether the investigative stage is
sufficiently distinct from the prosecutorial stage to justify a
distinction.
Dan, ad nauseam
netcat
> netcat <net...@devnull.eridani.eol.ee> wrote:
> > k...@KeithLynch.net says...
> >> Any nation's greatest asset is the loyalty and trust of its people.
> >> For instance the Soviet Union fell apart when people stopped
> >> believing in Communism.
>
> > That's not why it fell apart. It fell apart for economic reasons.
>
> But its economy was much, much worse in the past. There were
> years when millions of people starved to death. Why didn't it
> fall apart then?
Because starving people are easily threatened into submission.
rgds,
netcat
Lowell Gilbert
> It's far more likely for a lawyer to be charged with suborning
> perjury rather than of the offense directly. But the claims made
> in this case, if true, would constitute violations of several other
> laws. Like most jurisdictions, Iowa has explicit and separate
> crimes for obstruction of justice, official misconduct, and false
> representation of records.
>
> All of these, including perjury, would have been state charges
> and used the state statute of limitations. The federal government
> could also indict for criminal civil rights violations, which
> would have a 5-year limit. All of the criminal charges would
> have had to been proved beyond a reasonable doubt; if SCOTUS
> allows the current case to proceed it will be on a civil standard
> of proof.
The coverage of this case has made clear that prosecutors are
essentially immune to any charges for what they say in court.
Mike Benveniste
> It would be interesting if there was. And if congressmen, senators,
> and presidents could be imprisoned for oath breaking if a law they
> pass is determined to be unconstitutional.
Oathbreaking is a matter of intent, so you'd have to prove that
the person knew the law was unconstitutional. And as the
Bush administration justification for torture shows, that's a
very high bar indeed.
Besides, do you really want to be putting people or even
congresscritters into prison based on the after-the-fact opinion
of two political appointees?
> It seems unfair to run the statute of limitations, not from the time
> of the crime, but from the time when the crime was remembered and
> reported, in the case of child molestation, but to run it from the
> time of the crime itself in cases of false imprisonment *even if the
> victim reported the crime immediately*.
Major sex crimes against minors are considered heinous enough that
some states (including Virginia) have no statute of limitations at
all. Iowa does not use the "remembered and reported" rule you cite;
but instead uses a "10 years after the victim turns 18" rule for
such crimes:
http://law.findlaw.com/state-laws/criminal-statute-of-limitations/iowa/
But there's a flip side to extending the statute of limitations.
In the case at hand, for example, had the statute of limitations
for perjury not run, McGhee and Harrington might well be rotting
in prison. The reversals only came after witnesses recanted
their testimony; they might not have done so if they were still
criminally liable for perjury.
> Some crimes are so shocking to the conscience that no civil verdict,
> which could at most drive the perp into bankruptcy, can suffice.
I'll let Dr. Friedman take the response to this one.
> The punishment should be commensurate with the crime. If someone put
> ten innocent people into prison for ten years each, they should lock
> him up and throw away the key. And not in a "white collar" prison
> unless that's where his victims were sent.
With crimes like the ones alleged here, I'll go a step further. They
should be locked up as you describe whether or not the victims were
innocent or guilty.
David Friedman
"Mike Benveniste" <m...@murkyether.com> wrote:
> But there's a flip side to extending the statute of limitations.
> In the case at hand, for example, had the statute of limitations
> for perjury not run, McGhee and Harrington might well be rotting
> in prison. The reversals only came after witnesses recanted
> their testimony; they might not have done so if they were still
> criminally liable for perjury.
That's a special case of a more general problem. The difficulty with
punishing those responsible for the conviction of the innocent is that
it gives those concerned an even greater incentive to make sure that the
innocence is never discovered.
> > Some crimes are so shocking to the conscience that no civil verdict,
> > which could at most drive the perp into bankruptcy, can suffice.
>
> I'll let Dr. Friedman take the response to this one.
The most obvious response is that being convicted of a tort is more
punishment, and more deterrence, than not being convicted of a
crime--and, since criminal prosecution is in the hands of the state,
people who commit crimes while working for the state are quite likely
not to be prosecuted.
David V. Loewe, Jr
<dd...@daviddfriedman.nopsam.com> wrote:
> "Mike Benveniste" <m...@murkyether.com> wrote:
>> > Some crimes are so shocking to the conscience that no civil verdict,
>> > which could at most drive the perp into bankruptcy, can suffice.
>>
>> I'll let Dr. Friedman take the response to this one.
>
>The most obvious response is that being convicted of a tort is more
>punishment, and more deterrence, than not being convicted of a
>crime--and, since criminal prosecution is in the hands of the state,
>people who commit crimes while working for the state are quite likely
>not to be prosecuted.
Then how do bad cops get sent to prison - as happened in the Rampart
case?
--
"I want to know what became of the changes
We waited for love to bring.
Were they only the fitful dreams
Of some greater awakening?"
Clyde J. Browne
David Friedman
"David V. Loewe, Jr" <dave...@charter.net> wrote:
> On Fri, 06 Nov 2009 15:30:32 -0800, David Friedman
> <dd...@daviddfriedman.nopsam.com> wrote:
>
> > "Mike Benveniste" <m...@murkyether.com> wrote:
>
> >> > Some crimes are so shocking to the conscience that no civil verdict,
> >> > which could at most drive the perp into bankruptcy, can suffice.
> >>
> >> I'll let Dr. Friedman take the response to this one.
> >
> >The most obvious response is that being convicted of a tort is more
> >punishment, and more deterrence, than not being convicted of a
> >crime--and, since criminal prosecution is in the hands of the state,
> >people who commit crimes while working for the state are quite likely
> >not to be prosecuted.
>
> Then how do bad cops get sent to prison - as happened in the Rampart
> case?
I said "quite likely" not "certain."
Keith F. Lynch
> k...@KeithLynch.net says...
>> netcat <net...@devnull.eridani.eol.ee> wrote:
>>> k...@KeithLynch.net says...
>>>> Any nation's greatest asset is the loyalty and trust of its
>>>> people. For instance the Soviet Union fell apart when people
>>>> stopped believing in Communism.
>>> That's not why it fell apart. It fell apart for economic reasons.
>> But its economy was much, much worse in the past. There were
>> years when millions of people starved to death. Why didn't it
>> fall apart then?
> Because starving people are easily threatened into submission.
Then why didn't it fall apart when the economy was exactly as bad as
it was when it ultimately did fall apart, but no worse? It must have
passed through that point at least twice: On the way down to mass
starvation and on the way back up from it.
Keith F. Lynch
> "Keith F. Lynch" <k...@KeithLynch.net> wrote:
>> And I've just been reading a non-fiction book about WWII German
>> spies in the UK -- every one of which was known to, and run by, the
>> UK. �How was that possible? �The majority of them didn't believe
>> in the Nazi ideology, so they turned themselves in. �And with the
>> network firmly in the hands of the UK, any new spy was picked up
>> the moment they landed.
> Cite?
_The Double-Cross System_ by John Cecil Masterman. Also,
http://en.wikipedia.org/wiki/Double_Cross_System
Fascinating reading. Especially the parts about how the spies had to
be given *some* correct information to convey, lest the Germans detect
the subterfuge.
There was also one spy in Portugal who just made stuff up, and
successfully convinced the Germans that he was in Britain and had
recruited a network of subagents, despite his ignorance of everything
British -- he didn't even understand British currency. He of course
collected and kept the pay intended for all of them. The British
eventually recruited him. For his D-Day work he got medals from both
Germany and Britain. See
http://en.wikipedia.org/wiki/Juan_Pujol_(alias_Garbo)
> My impression was that it was a lot less nice than that; yes, they
> were all 'rolled up' as the phrase goes, but it was a combination
> of the Enigma crack letting the British know where and when agents
> would be dropped, and then 'turning' them by giving them a choice
> between cooperation and summary execution (some chose the latter).
It was not at all nice. But most turned themselves in. So many, in
fact, that the British executed some of them anyway, simply because
they thought the Germans wouldn't believe that *none* had been caught.
For the same reason the British had one agent try to convince the
Germans that he had been captured and was working under duress.
But the Germans were apparently incapable of skepticism.
Another instance of non-niceness is that the British used deception to
change the targeting of the V-1s and V-2s, which was rather hard on
the innocent civilians living under the new target points.
None of the spies used Enigma, as none of them were equipped with
Enigma machines, presumably because the Germans didn't want to risk
such machines falling into British hands. Mostly they used hidden
writing.
The way the German system was set up, each spymaster would lose
prestige, if not his job, if his spies were captured and turned. So
that gave them a strong incentive to defend their spies against any
claims that they had been captured and turned. That seems to be the
main reason the Germans were so gullible.
Paul Dormer
Lynch) wrote:
>
> Another instance of non-niceness is that the British used deception to
> change the targeting of the V-1s and V-2s, which was rather hard on
> the innocent civilians living under the new target points.
Like my parents, who both lived in SE London. V-1s were targetted by
pointing them in the right direction and when they ran out of fuel, they
crashed. The turned spies reported they were falling far to the
north-west of London, so they kept reducing the amount of fuel.
My father was bombed out by one of the first V-1s, but I'd guess that was
before the reports had started coming back. About a month later, there
was a direct hit on the centre of Lewisham. Before the war, this was the
main shopping centre for the area, but it never regained that position
till the sixties.
And about 160 people were killed in Woolworth's one Saturday morning in
nearby Deptford by a V-2. Apparently, my grandmother had passed the shop
on a bus just minutes before the explosion.
William December Starr
David Friedman <dd...@daviddfriedman.nopsam.com> said:
> netcat <net...@devnull.eridani.eol.ee> wrote:
>> k...@KeithLynch.net says...
>>
>>> Any nation's greatest asset is the loyalty and trust of its
>>> people. For instance the Soviet Union fell apart when people
>>> stopped believing in Communism.
>>
>> That's not why it fell apart. It fell apart for economic reasons.
>
> Don't you think it was a combination?
>
> The Soviet Union was doing badly, economically speaking, for a
> long time. The explanation offered was that its people were
> making sacrifices for the future, catching up with the capitalist
> states. The present can be observed, the future can't be, so that
> was a way of maintaining support despite the visible evidence of
> economic failure.
>
> Eventually people stopped believing the explanation.
Did that really not happen until the 1980s?
-- wds
David Friedman
I don't know. There's a lot of inertia in human societies.
netcat
media.com>, dd...@daviddfriedman.nopsam.com says...
> In article <hefgp7$52t$1...@panix2.panix.com>,
> wds...@panix.com (William December Starr) wrote:
>
> > In article <ddfr-9CEEEC.1...@newsfarm.phx.highwinds-media.com>,
> > David Friedman <dd...@daviddfriedman.nopsam.com> said:
> >
> > > netcat <net...@devnull.eridani.eol.ee> wrote:
> > >> k...@KeithLynch.net says...
> > >>
> > >>> Any nation's greatest asset is the loyalty and trust of its
> > >>> people. For instance the Soviet Union fell apart when people
> > >>> stopped believing in Communism.
> > >>
> > >> That's not why it fell apart. It fell apart for economic reasons.
> > >
> > > Don't you think it was a combination?
> > >
> > > The Soviet Union was doing badly, economically speaking, for a
> > > long time. The explanation offered was that its people were
> > > making sacrifices for the future, catching up with the capitalist
> > > states. The present can be observed, the future can't be, so that
> > > was a way of maintaining support despite the visible evidence of
> > > economic failure.
> > >
> > > Eventually people stopped believing the explanation.
> >
> > Did that really not happen until the 1980s?
>
> I don't know. There's a lot of inertia in human societies.
Doublethink is the key insight.
rgds,
netcat