Sunday, June 24, 2007

Lies, Damned Lies, and Iraq

If you want to get a clear picture of the war in Iraq, you must read news sources of all political stripes. If you are a liberal and you get your information only from liberal politicians and news sources, you will be missing a vital part of the picture. The same is true if you are a conservative and you get your information only from conservative politicians and news sources.

The purpose of this post is to document the truth of the above. We will do this by examining how both liberal and conservative politicians have chosen to mislead the public about Iraq. Along the way, we will take a look at the different ways in which they have done this, and the degrees of guilt which they have.

First of all, the verb "to lie" is ambiguous. It is simply overbroad to talk about whether a certain statement is or is not a "lie". The law identifies at least five different levels of guilty thought with respect to certain actions, and they will be useful to us here. They are:

1. Intention. For instance, if a person plans to bring marijuana into the US from Mexico, then does.

2. Knowledge. For instance, a driver sees that a passenger has brought a backpack full of marijuana into his car, and then drives the passenger into the US. The law generally treats “willful blindness” at the same level of guilt as knowledge. For instance, if someone hands you a sealed backpack, and says he will pay you $1000 to bring it across the border, and you do so, without looking to notice the cocaine inside, you are complicit in the cocaine smuggling because of your willful blindness.

3. Recklessness. For instance, if you drive drunk at 80 miles an hour along a dark highway, and you crash and kill someone, you are guilty of reckless homicide.

4. Negligence. For instance, if you drive within the speed limit along an unfamiliar road, fail to notice a stop sign, then drive through the stop sign and kill someone, you may be guilty of negligent homicide. Or if you build a car without thinking about the chance that the fuel tank could ignite, and then the fuel tank does ignite and kills someone, you may also be guilty of negligent homicide. In cases like these, you may or may not be criminally charged, depending on how outrageous the prosecutor thinks your actions are or are not. You will, however, almost certainly lose a civil lawsuit.

5. Strict liability. This means that you did something that was wrong and are at fault, regardless of whether you had any idea that what you were doing was wrong or not. For example, in some jurisdictions, statutory rape is a crime of strict liability. It is no defense to say “she told me she was 16” if it later turns out that she was 15. (In other jurisdictions, this is a defense in that case, but not if it later turns out that she was 12.) Strict liability also applies in some civil cases.

The other issue is omissions. Can you be guilty of a crime for failing to do something, or to say something? It depends on the crime. For purposes of our discussion, the most relevant analogous crime is fraud. And you can be guilty of fraud for an omission. For instance, if you sell someone your home without mentioning that it is contaminated with dioxin, you are guilty of fraud. You are guilty even if everything you did say while selling your home was true.

With the above in mind, we will look at the level of guilt of the Bush administration with respect to the question of whether or not Saddam posessed weapons of mass destruction in 2003. Also we will look at the level of guilt of the Democrats and various media with respect to the question of whether or not the US is confronting Al Qaeda in Iraq in 2007.

Bush and Saddam’s alleged weapons of mass destruction:

"Saddam Hussein has chemical weapons."

-- Colin Powell, speech to the United Nations, February 5, 2003.

“Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised.”

-- George Bush, ultimatum to Saddam Hussein, March 18, 2003

Let’s look at different levels of guilty knowledge and see where Bush and Powell fell:

1. Intention. It appears that neither Bush nor Powell intentionally lead the public to believe information which he knew to be false. In other words, it appears that the administration did not have proof that Saddam did not have weapons of mass destruction. So by causing the public to believe that Saddam did have WMD, the Bush administration was not committing an intentional fraud.
5. Strict liability. It is indisputable that under a strict liability standard, both Bush and Powell did mislead the public. Because it caused people to believe that Saddam’s regime did have WMD in 2002-3, when in fact it did not.
2-4. Knowledge, willful blindness, recklessness, and negligence. Here things get interesting.

Both Bush and Powell were relying on intelligence assessments when they made these statements. So the question becomes -- in their respective positions, how much control did they have over these intelligence assessments? And what signals did they send to the intelligence services?

For both of them, the cases will be circumstantial. When dealing with someone's state of mind, that is normal. You can't observe it directly.

Bush: As President, Bush is the Commander in Chief. He has great influence over where the CIA should direct its resources and how it should report its findings. Persistent news reports indicate that people in the CIA knew that Bush wanted to continue to be told that Saddam had WMD. For example, a Newsweek story has this to say about an agent named "Curve Ball" who claimed that Saddam had chemical weapons:

After reading Powell's [as-yet-undelivered UN] speech, the analyst decided he had to speak up . . . . He wrote an urgent e-mail to a top CIA official warning that there were even questions about whether Curve Ball "was who he said he was." Could Powell really rely on such an informant as the "backbone" for the U.S. government's claims that Iraq had a continuing biological-weapons program? The CIA official quickly responded: "Let's keep in mind the fact that this war's going to happen regardless of what Curve Ball said or didn't say," he wrote. "The Powers That Be probably aren't terribly interested in whether Curve Ball knows what he's talking about."

As President, Bush was himself the top person among the Powers That Be, and he chose many of the others. The story does not suggest that Bush himself knew that Curve Ball could not be trusted. What it does suggest is that people under Bush realized that he didn't want to know. This is willful blindness by Bush with respect to the question of whether or not Curveball could be trusted. And it is recklessness with respect to the question of whether or not Saddam had WMD. It was not willful blindness with respect to whether or not Saddam had WMD, because even if Bush had learned the information from Curveball could not be trusted, he still would not have known whether Saddam had WMD or not.

The question then becomes -- how much credence can one put in this news report, and many others like it? After all, news organizations can, and frequently do, write misleading stories? I believe that in this case, the stories can be trusted. The reason is that Bush never made any public postwar statement in which he seemed particularly angry that the CIA mislead him about Saddam's WMD. Since this question was so important to Bush before the war, one would expect that if Bush were angry about being mislead, he would have said so. He didn't.

As for Powell, he was relying on the same CIA agents that Bush was. Unlike Bush, however, Powell has frequently made it clear that he wanted to be told the truth. For example, in his first major interview after he left the Administration, Powell had this to say about his speech:

I'm very sore. I'm the one who made the television moment. I was mightily disappointed when the sourcing of it all became very suspect and everything started to fall apart.

Powell has frequently made similar statements. It all makes it clear that he was a man who wanted to tell the truth. A hallmark of reckless behaviour is not caring what the consequences might be. So Colin Powell was not reckless. However, he was negligent. Because if he had thought about it carefully, he could have realized that Bush wanted the CIA to tell him that those weapons were there.

Al Qaeda, Iraq, and the Democrats

General Petraus talks all the time about the fact that his number one priority in Iraq is to disrupt Al Qaeda. The central fact of this war is that Al Qaeda blew up the Golden Dome of the Shiite Al-Askari Mosque in Samarra in February, 2006, setting off a wave of violence that continues to this day.

Yet when most Democrats talk about Iraq, they manage to ignore this. Here, for instance, is a major speech Hillary Clinton gave on Iraq. Ms. Clinton managed to go on for several pages without even once mentioning Al Qaeda. Here is a speech from Barack Obama in which he mentions the Iraqi "civil war" without mentioning that it is deliberately provoked by Al Qaeda. With a few notable exceptions, when Democrats do mention Al Qaeda in relation to Iraq, it is usually to criticise President Bush for "diverting resources to Iraq, thereby distracting the US from the fight against Al Qaeda".

But Chris Dodd topped them all by saying the following:

Not at all here. Again, this is a civil war going on in Iraq. This is not the United States versus Al Qaida. It's Shia versus Sunnis tearing each other apart. It's gone on for centuries, but particularly here right now.

By pretending that Al Qaeda is not the main enemy in Iraq, these Democrats are misleading the public. Since the evidence of Al Qaeda's involvement in the war is indisputable and plain to see (heck, they even talk about it on the web), these Democrats all are either intentionally misleading the public, or have willful blindness as to what is going on. Their exact degree of guilt depends on what information has been made available to them. For instance, if one of them has been briefed by General Petraus about his efforts to combat Al Qaeda, and then goes on pretending that this is not happening, it is an intentional deception. Otherwise, it is willful blindness.

In general, the higher someone's position is, the greater their degree of guilt is likely to be with regard to a deception. Thus, on the Republican side, Bush is the most responsible for falsely persuading the American public that Saddam had WMDs in 2002-3. On the Democratic side, the three influential Senators mentioned above all have high degrees of guilt for falsely persuading part of the American public that Al Qaeda is not our biggest enemy there today. By contrast, Joe Democrat who is a columnist in the local newspaper may only be guilty of negligence for helping to prepetuate that same deception.

This has been a long post. But the moral of it all is a vital point which bears repeating: if you want to have an accurate picture of a contentious issue, you must read information from people on different sides of that issue. Because all sides will mislead you when it suits their purposes. Remember that the next time you hear someone complain that "the Democrats" or "the Republicans" are misleading the public about something.

Saturday, June 16, 2007

The New York Times still doesn't get it

In its article about Mike Nifong's disbarment, the Times quotes the following statement from Mr. Nifong:

Mr. Nifong said her accusation and identification were the main reasons he filed the case. He said most police officers and the sexual assault nurse believed the woman, but there was no other evidence.

Unsurprisingly, the Times manages not to find room to refute these assertions. Such as that the accuser identified "suspects" only on . . . her seventh try? And only after she was shown a lineup . . . with no fillers? So that all the choices were correct? Or that according to the relevant professional standards, the nurse in question . . . had no business reporting whether she believed the woman or not, and should have limited her report to her medical observations?

It is interesting to contrast this treatment of Mr. Nifong with the Times' recent treatment of a of a prominent Republican who has been in the news because of his legal woes. From a recent article about Lewis Libby:

Mr. Libby’s lawyers made a last-ditch argument today, asserting that the special prosecutor in the case, Patrick J. Fitzgerald, had been given too much independence. The judge dismissed that argument, saying that Mr. Fitzgerald was subservient to the Justice Department and thus could have been dismissed.

One telling moment came as Judge Walton referred to a motion filed by 12 law professors asserting that there were appealable issues in the case. The judge dismissed the motion, remarking acidly that it was “not worthy of a first-year law student.”

While Mr. Libby's credibility is poor in the wake of his convictions for false statements, perjury and obstruction of justice, it remains higher than Mr. Nifong's. Yet the Times reports why arguments by Mr. Libby's lawyers and other supporters should not be believed -- but uncritically reports ludicrous assertions by Mr. Nifong.

Friday, June 15, 2007

Laying the groundwork for a criminal trial

In the cross examination of Mike Nifong, Bar Prosecutor Lane Williamson appears to be laying the groundwork for possible criminal prosecution. On several occasions, he got Nifong to admit that he made a false statement of material fact to the court. Of course, Nifong claimed that the falseness of these statements was "unintentional".

Thursday, June 14, 2007

All the news thats fit to slant

The New York Times did its best to persuade its readers that the Duke 3 might be guilty of the charges against them. Now it seems equally determined to persuade its readers that Mike Nifong might be innocent of the ethics charges against him. Today's article on Mr. Nifong's ethics trial quotes only the apparently=exculpatory (for Mr. Nifong) testimony from the not-at-all-credible Dr. Meehan about why DNA evidence was not turned over to the defense, while studiously avoiding any mention of the fact that Dr. Meehan's testimony stands in direct contradiction to both his own December 15 testimony on the same issue, and to Mr. Nifong's statements in a press conference he gave immediately after the December 15 hearing.

Tuesday, June 12, 2007

Officer Himan's testimony

KC Johnson has written up portions of Officer Himan's testimony in the Nifong ethics trial. If Officer Himan's testimony is to be believed, he was a reluctant participant in the conspiracy to frame the Duke three. For example, when Nifong wanted to in indict, he indicated his skepticism in discussions with Nifong. But, when push came to shove, he went to the Grand Jury and gave the evidence that led to the indictments. So while Officer Himan was a reluctant participant, he was a participant nonetheless.

After Officer Himan's testimony, I don't understand how he can continue to be a police officer. If he ever testifies in court, his testimony today will give the defense attorney plenty of ammunition against him in cross examination. For instance, Officer Himan would have to answer "yes" to questions like these:

"Officer, have you ever participated in a police procedure that was designed to obtain information you felt would be misleading?"

"Did that procedure in fact produce information that you felt was misleading?"

"Did you then use that information to obtain criminal indictments against people you felt were innocent?"

The test of character that Officer Himan was faced with was not an easy one. Superiors wanted him to do things that he knew, or should have known, were wrong. Officer Himan failed to stand up to his superiors. In light of this, the honorable thing for Officer Himan to do now is to resign.

I also felt it would be interesting to look at how the authorities have treated reluctant participants in other criminal conspiracies. I did a google search to try to come up with some examples. WorldCom's controller David Myers was a reluctant participant in that fraud, according to his lawyer. Myers cooperated with prosecutors, and was later sentenced to one year and one day in prison. While this was doubtless unpleasant for Mr. Myers, it was still far better than 5-year sentence given to CFO Scott Sullivan, or the 25-year sentence given to CEO Bernard Ebbers.

I also came across a prostitution conspiracy in which the leader was sentenced to 43 months, and a reluctant particepant apparently was not given any criminal punishment. Also, there was an arson conspiracy in which the leader got 57 months, and an alleged reluctant participant got 40 months.

Strangely, the high-ranking hits did not include any drug conspiracies. Since this is the most commonly prosecuted type of criminal conspiracy, I did some more google searches to find some of those. Strangely, I didn't get any hits. Apparently, the authorities don't give participants in drug conspiracies any breaks if their participation was reluctant. Or if they do, they don't talk about it in those terms.

I hope that someday the conspiracy to frame the Duke 3 is the subject of a criminal prosecution. And I believe that reluctant participants such as Officer Himan should not escape punishment. However, their punishment should be far less than that given to Mike Nifong, who was the leader of the conspiracy.

Unfortunately, I believe it is much more likely that the criminal prosecution, if there is one, will not go that deep. If this happens, it will send a terrible message to police officers everywhere. Effectively, such a decision would tell them that it is OK to help frame someone, as long as your superiors order you to do so.

Outrage in Georgia

Georgia Attorney General Thurbert E. Baker has forgotten about justice. He has chosen to pursue a ludicrous appeal, designed to keep Genarlow Wilson in prison, serving a ten-year sentence for consensual oral sex with a girl, at a time when the girl was 15 years old, and Mr. Wilson was 17.

Kids will be kids. They will do things that kids do. Like it or not, sex is one of those things. If Georgia locked up every kid who did what Mr. Wilson did, I daresay there would be a lot of empty chairs in the Georgia Governor's Office, Legislature, and even the Attorney General's Office.

This is the same Georgia that has Teresa Fargason sitting in prison, framed by the police for the murder of her daughter. The case has been broadcast on Court TV, among other places. Apparently, the state of Georgia has the resources to keep fighting to lock up Mr. Wilson, but it cannot spare the time or money to find out why the police framed Teresa Fargason for a murder that was almost certainly committed by then-police officer James Glover. Perhaps they are waiting for Mr. Glover to murder another six-year-old girl?

Monday, June 11, 2007

Fixing the death penalty system

In this post, I will set forth my views on the appropriateness of capital punishment, the problems it faces, and what should be done.

First of all, there is strong evidence that the death penalty does, in fact, deter murder. A blogger who writes under the name of "Engram" has marshalled this evidence. I have nothing to add to his excellent presentation.

To me, this evidence is reason enough to keep the death penalty. However, our death penalty, as it stands today, has many problems, and these need to be addressed.

It is indisputable that innocent people have been sentenced to death on several occasions since the Supreme court allowed death sentences to resume in 1976. One example is Kirk Bloodsworth. Mr. Bloodsworth was sentenced to death based on eyewitness identification, and was later exonerated by DNA. As a result of this case and others like it, we don't sentence people to death based on eyewitness identification anymore. This is surely a step in the right direction.

The anti-death-penalty people have posted a list of exonerations here. Exonerations come in various levels of certainty. In some cases, such as Mr. Bloodsworth's, it is clear that the exonerated person is completely innocent. In others, it is not clear if the exonerated person is innocent or not. In still others, it looks like the exonerated person is probably guilty -- but not beyond a reasonable doubt, based on admissible evidence. The pro-death penalty people have a list of cases they say are in this category here. In this debate, the claims of both sides should be viewed with caution.

One topic of debate is whether any innocent person has been executed in this country since the Supreme Court decision Gregg v. Georgia (1976) allowed executions to resume. My personal belief is that this has happened. The reason is that several people have been exonerated because of the development of DNA matching technology. And if DNA matching technology had not been developed, many of these people would have had no way to exonerate themselves. I believe the rate of false convictions, pre DNA, should have been the same in cases where DNA evidence was later found to be available as in cases where it was not. Since several of the convictions where DNA was later available proved to be wrongful, it is likely that the same is true in cases without DNA evidence. And, with no DNA, the defendant may have had no way to exonerate themselves later.

There have also been many non-DNA exonerations. But this does not affect the validity of the above argument. The point is that many people who were exonerated by DNA would not have been able to do so without it. Therefore, there are almost certainly innocent people who were convicted in non-DNA cases, and the defendants were simply stuck after that.

To sum up the situation, we have the following:

(1) The death penalty almost certainly does deter murder.
(2) Innocent people have almost certainly been executed.

Note the symmetry of the above. There is evidence both in favor of and against the death penalty. In both cases, a close examination of this evidence shows it is almost certainly correct. Unfortunately, advocates on each side of this debate tend to either ignore or try to negate the opposing point.

In addition, there is the problem of death penalty appeals. These tend to be enormously expensive and time-consuming. It is not unusual for someone to spend 20 years on death row before they are finally executed. It is common for people to leave death row by dying of natural causes. These delays consume enormous resources. They are painful for the families of the victims. And they make a mockery of the death penalty itself. The Department of Justice keeps statistics on the reasons people leave death row. Here are the statistics for 2005 -- the most recent year for which they are available:

Under sentence of death at start of year: 3320
Executed: 60 (1.8%)
Suicide: 3 (0.1%)
Died of other causes: 22 (0.7%)
Left death row for other reasons (i.e, sentence commuted, guilty verdict overturned, death sentence overturned, exonerated): 109 (3.3%)
Sentenced to death during 2005: 128
Under sentence of death at end of year: 3254.

Notice that very few of the people under sentence of death during 2005 were actually executed during that year.

Looking at this another way, here is what happened to people sentenced to death during the three-year period from 1984-86, i.e, approximately 20 years before the 12/31/05 cutoff date for inclusion in the report:

Sentened to death 1984-6: 846*
Left death row:
Executed: 177 (21%)
Other death: 48 (6%)
Other or unknown reason (mostly legal reasons): 401 (47%)
Still under sentence of death as of 12/31/05: 220 (26%)

* Those who were sentenced to death during this time, had their sentences or convictions overturned, and were later resentenced to death are not included.

It is notable that only approximately 21% of those sentenced to death approximately 20 years earlier had been executed during that time. And the ones whose sentence was still under some kind of appeal outnumbered those who had been executed!

The main reason for these endless appeals is that our system does make mistakes. Innocent people do get sentenced to death. The appeals process is society's way to try to make sure those mistakes are rectified before the defendant is executed.

I would like to propose a new way to handle the death penalty. I believe that overall, it would increase the number of death sentences, thereby decreasing the murder rate. I believe it would also make the death penalty less error-prone. It is this:

The primary way to determine in a murder case whether or not the defendant should be sentenced to death should be whether or not there is overwhelming evidence of his or her guilt. Not merely proof beyond a reasonable doubt. But evidence so strong that it admits no other explanation than the defendant's guilt.

For instance, a DNA match alone would not be overwhelming evidence. The DNA analyst could be lying. Or the DNA could come from contamination. But if, for example, you have DNA, and the defendant's fingerprints are all over the gun, and the defendant kept changing his story and later confessed, that would be overwhelming evidence. The above would not, however, be overwhelming evidence if one person testified to all of it. Because that witness could be lying. Ideally, the witnesses should come from seperate organizations -- so that corruption in one organization could not allow someone to be framed.

Another example of overwhelming evidence would be if you have clear surveillance video of the defendant committing the murder. Technology in this area has advanced, but video remains difficult to fake.

Testimony from someone who is receiving a benefit from the criminal justice system (i.e, a reduced sentence for another crime) should never be considered as a part of overwhelming evidence. Because such witnesses are inherently unreliable. The same is true of eyewitness identification by anyone who did not know the defendant prior to the crime.

Additional safeguards should be put in place. In particular, both police work and analysis of forensic evidence should itself be videotaped. And these videotapes should be made available to the defense, or, even better, posted on the web. In this era of inexpensive webcams, and 470GB of CDs retailing for $25, it should be possible to do this without spending a lot of money. Furthermore, any technical work (i.e, fingerprint matches, hair or fiber matches, and DNA matches) that is going to be used in a murder trial should be subject to random, blind audits. That is, the person doing the work does not know if their work is going to be audited, and if so, by whom. The auditing process can be computerized and randomized, so the auditor could be any specialist in the same field in the country.

With all of the above safeguards, and the requirement of overwhelming evidence to sentence a defendant to death, I believe there would be very few wrongful death sentences. The reason can be found on the innocence project's website. There, they list the causes of wrongful convictions

Eyewitness Misidentification

Unreliable or Limited Science
False Confessions
Forensic Science Fraud or Misconduct
Government Misconduct
Informants or Snitches
Bad Lawyering

All of the above causes, except for bad lawyering, would be greatly reduced by the above safeguards. For instance, with police work and lab work being videotaped, government misconduct would become much riskier and more difficult, as would forensic fraud, and so on. And with the additional requirement of overwhelming evidence, it just wouldn't happen often.

But wrongful death sentences would still happen occasionally, due to bad defense lawyering, for instance. And so there should be one final safeguard. Whenever everyone is sentenced to death, there should be one automatic appeal, with a different lawyer if the defendant so chooses. And in this appeal, the lawyer should argue to a panel of three judges why the evidence is not overwhelming. They would be allowed to introduce any new evidence, without limitation. And the judges would have the power to overturn the death sentence. BUT they would be limited to some fixed percentage of their cases where they are allowed to do that. (20%, for instance).

If this appeal fails, the defendant should be allowed to appeal to the United States Supreme Court (skipping all the intermediate steps which exist today). If the Court either rules against the defendant, or decides not to grant cert, the death sentence should be carried out within a few weeks. Appeals that the manner of death would be too painful should not be allowed. This could be accomplished either by the Supreme Court ruling that, under the above system, the death penalty is no longer "unusual", or by a Constitutional amendment if for some reason the Court is unwilling to make that ruling.

I believe that in cases of premeditated murder, where there is overwhelming evidence that the defendant wanted to kill someone and did so (even if the person they killed was not the person they wanted to kill), the death sentence should be the general rule. There could be exceptions in cases where there are extenuating circumstances, such as if the victim was abusive towards the defendant (but not so abusive that the killing could be considered self defense). Other exceptions would be if the defendant was less than 18 years old, or was severely retarded. But if none of the above applies, the jury should routinely be asked to sentence the defendant to death. (And usually, they do so when they are asked). And with the above relatively brief appeals process, the sentence would typically be either overturned or carried out within a year or two.

Under this system, some people who are currently sentenced to death would not be. Scott Peterson, for instance, would likely escape the death sentence, as the case against him, while strong, was not overwhelming. John Couey and Joseph Smith would both likely have been sentenced to death, however, and Smith might well already have been executed. Additionally, may people who today are not under sentence of death would likely face this sentence.

Lastly, government agents who engage in fraud need to be routinely prosecuted. (Currently, they frequently are not.) And the charges should be more serious than they are today. If they try, but fail, to fraudulently give someone the death penalty, the charge should be attempted murder. And if, despite all the safeguards, someone is executed because of their fraud, the charge should be first degree murder.

I believe if the country adopted this system, the following would happen:

* A larger portion of murders would lead to death sentences.
* These death sentences would be less subject to error than they are today.
* Death sentences would be carried out relatively soon after the trial, making them a real deterrent. And as a result,
* The murder rate would drop.

Thursday, June 7, 2007

Improving our justice system

As the Duke case has shown, our justice system frequently is unable to prevent abuses. What if it were law that unless there is a compelling reason not to, every document which is subject to discovery, and every court transcript, must be posted on the web! If this were the law, dishonest lawyers and witnesses would be on notice that anyone in the world could catch them in the act. Because it would all be right out in the open for everyone to see.

Wednesday, June 6, 2007

The Libby defense team's blunder

I think there was an argument Libby defense team would have resulted in a lower sentence. But they failed to make it in the relevant filing. It is this:

The defense should have argued to the judge that, if he should find (contrary to their contention) that Mr. Libby did commit his obstruction in relation to the outing of Ms. Plame, he should then consider just how serious of an outing was this? The guideline for this offense covers a wide spectrum of offenses with different levels of seriousness. Consider the following two situations:

1) A covert agent in Iran has his identity leaked to someone in Iran. The agent is ethnically Persian and can easily blend into that society. The agent does not know that his identity has been compromised.

2) A covert agent in Washington DC has her identity leaked to someone in the USA. This information then appears on the news. The agent realizes that she has been compromised.

Surely, outing #1 is much more serious than outing #2. Outing #1 would put the agent in great physical danger. Outing #2 does no such thing. Furthermore, in situation #1, even if the agent somehow realizes that he has been outed, and successfully escapes, his secret cover and his relationships with people in Iran have been lost. They will be difficult to reclaim. Furthermore, the CIA will have lost most of the value of someone who speaks Persian and can easily fit into Iranian society. The loss of this rare and valuable skill is devestating.

In situation #2, the agent is not put in any personal danger because she was outed. Furthermore, while the loss of a secret agent always hurts, she did not have any particularly rare skills that will be sorely missed.

Because of this contrast, the defense should have argued to the judge that he should adjust Mr. Libby's offense level downwards, to account for the fact that the outing under investigation was far less serious than other possible outings which may have been envisioned by the Sentencing Commission when it promulgated the relevant guideline.

This relative seriousness portion of this argument has the great advantage of being indisputably correct. If the defense had made it, the judge would have certainly agreed with that portion. Whether he would therefore have further agreed to adjust the offense level downwards is open to question.

Even if he had chosen not to, by making the argument, the defense would have preserved the issue for appeal. Appeals courts don't like it when someone raises an argument on appeal, having failed to make it in the district court. For this reason, raising the issue now probably wouldn't do the defense any good.

Tuesday, June 5, 2007

The Libby Trap

Lewis Libby was sentenced today to 30 months in prison. Mr. Libby was trapped by a combination of factors, many of them not of his own making.

1) The Federal sentencing guidelines. These guidelines tell judges how much time they should impose for almost every possible Federal crime. The length of time is determined by a combination of the "offense level" (a measure of the seriousness of the crime) and the defendant's criminal history (in Mr. Libby's case, none). Judges are allowed to sentence outside the guidelines, but if they do they have to give a reason, and they risk being overturned on appeal. Frequently judges choose to sentence within the guidelines. This is what the judge did in Mr. Libby's case.

2) Tough-on-crime politics. For the most part, Americans like to treat criminals harshly. Every politician knows that being seen as soft on crime is a sure way to lose the next election. As a result, the guidelines are very harsh, even for nonviolent, white-collar offenders like Mr. Libby.

3) Politics (again). President Bush could not afford to be seen as stonewalling Patrick Fitzgerald's investigation. So he ordered all of his staff to talk to the prosecutor, which is what got Mr. Libby into trouble.

4) Mr. Libby's loyalty. The Bushes value loyalty extremely highly. So the Bush administration tries to choose highly loyal people to work for it. In Mr. Libby's case, they succeeded beyond their wildest dreams. And Mr. Libby's loyalty worked against him at several stages of the whole affair.

A) It seems that when Dick Cheney saw Joseph Wilson's editorial, he went ballistic, and wanted to punish Mr. Wilson in any way he could. This included outing Mr. Wilson's wife. Even though this may have been a Federal crime (more on the "may have been" later), the loyal Mr. Libby agreed.

B) When Patrick Fitzgerald was picked as special prosecutor to investigate the outing of Ms. Plame, it would have been sensible for Mr. Libby to take the Monica Goodling route. Plead the fifth and resign from his job. Talk if given a favorable deal. But perhaps driven by loyalty, he didn't resign, even though President Bush had ordered all of his staff to cooperate. Which meant Mr. Libby had to talk. Mr. Libby must have known, without being told, that the loyal thing to do was to lie in order to cover up Cheney's involvement. So he did.

C) At the end of Mr. Fitzgerald's investigation, Mr. Libby was indicted because of his lies. At this point, Mr. Libby could still have gotten off relatively lightly. It would have required that he plead guilty and cooperate with the investigation from that point onwards. But this would have been a disloyal thing to do, so Mr. Libby instead went to trial, where he lost. Because of the way the guidelines work, this decision had a major impact on his sentence. For first offenders, the guideline sentences, in months, at various offense levels relevant to this case are as follows:

Offense Level ----- Guideline sentence (in months)
12 -------------------------- 10-16 (usually half prison and half home detention)
14 -------------------------- 15-21 (prison)
16 -------------------------- 21-27 (prison)
19 -------------------------- 30-37 (prison)

Now the base offense level for perjury and obstruction of justice is 14. But if that perjury or obstruction of justice occurs during the investigation of a more serious crime, the offense level is instead 6 less than the level for the crime being investigated, if that is more than 14. This is called a "cross reference". Because outing a covert agent has offense level 25 (or 30 in some cases, but not Mr. Libby's), that meant Mr. Libby's offense level under the cross reference was level 19. And the judge gave him a sentence at the bottom of the guideline range, which is a common choice for Federal judges to make.

If Mr. Libby had chosen to plead guilty, he could have gotten a 2-3 level reduction in his offense level for acceptance of responsibility. Basically, the government feels that people who admit their crimes are less culpable than those who are convicted at trial. The reduction is 2 levels if you started out at level 15 or below, and 3 levels if you started out at level 16 or higher. So if he had plead guilty, Mr. Libby at worst would have been at level 19-3=16, with a likely 21-month sentence.

But probably he could have gotten lower than that. One of the dirty little secrets of the Federal system is that if you plead guilty, often the prosecutor will overlook some of your conduct. In this case, it is entirely possible that by pleading guilty, Mr. Libby could have gotten Mr. Fitzgerald to agree for purposes of sentencing to ignore the fact that Mr. Libby's crime was in relation to the outing of an agent. If this had happened, then Mr. Libby would have started at level 14, gotten 2 levels off for acceptance of responsibility, putting him at level 12, with a probable 10-month split sentence (the same sentence Martha Stewart got).

It gets even better. By pleading guilty, and agreeing to cooperate with Mr. Fitzgerald (who would then have gone after Vice President Cheney), Mr. Libby could have gotten a further reduction for "substantial assistance" to the prosecutor. The size of substantial assistance reductions is difficult to predict. But it is perfectly realistic that this could have gotten Mr. Libby's sentence down to a few months of home dentention, possibly with a month in prison tacked on, or even down to straight probation, probably with some community service. But it would have been a very disloyal thing for Mr. Libby to do.

Some people think Mr. Libby's loyalty is admirable. Others think it is wrong, because he may have been protecting someone who committed a crime. But it is something our criminal justice system treats very harshly.

So why do I keep using the word "may" in relation to a criminal offense for outing Miss Plame? This has to do with a little-known fact about our sentencing system. In order to be convicted of a crime, your guilt has to be proven beyond a reasonable doubt. This is a high standard. Because of it, criminal cases that are only "probable" do not go to trial. But once you are convicted of one crime (with proof beyond a reasonable doubt), the judge can impose a sentence for other crimes, if he believes "by a preponderance of the evidence" that you are guilty. Basically, this means he thinks you are probably guilty of the additional crimes. This is what happened to Mr. Libby. Mr. Fitzgerald maintained during the trial that Mr. Libby was being presecuted for perjury and obstruction of justice, not for outing Ms. Plame. But after the trial, he argued that, for purposes of sentencing, Mr. Libby should be treated as an accessory after the fact to the outing of Ms. Plame. But he never proved, beyond a reasonable doubt, that Ms. Plame was ever intentionally outed! This is not an empty question. For one thing, it has not been proven beyond a reasonable doubt that Ms. Plame's status was in fact covert. But because of the way our sentencing system works, Mr. Libby can be sentenced based on this crime, even though it was never proven beyond a reasonable doubt that the crime ever occurred!

5) The last thing that worked against Mr. Libby was his fame. In a less well-known case, the judge might have been persuaded by the arguments for leniency that were advanced in the letters he received. Or the prosecutor might not have argued as strongly for the cross reference which raised Mr. Libby's offense level from 14 to 19. Or the judge might not have agreed to it. But in famous cases, both prosecutors and judges typically feel they need to be harsh. This is because they feel our society will be more law-abiding if people see famous criminals being treated harshly.

The outcome of all this is that Mr. Libby ended up with a harsh 30 month sentence. One can argue whether or not it is reasonable that someone whose only crime is lying should spend that long in jail. But the combination of our sentencing system, our politics, Vice President Cheney's apparent (though unproven) conduct, and Mr. Libby's loyalty drove the system inexorably towards this outcome.

Incidentally, a 33=month sentence for obstruction of justice is currently on appeal to the Supreme Court The case is United States vs. Rita. The Court is expected to rule soon. And their ruling will probably have an impact on Mr. Libby's appeals.

Sunday, June 3, 2007

Letter to many Durham Police Officers

The names of many important figures within the Durham Police Department can be found here. It is frankly a little late for any of them to start talking honestly about the case. But late, I think, would be better than never. So I'm sending many of them this letter:

William Jockusch
[street address omitted] (without the xxx)
June 3, 2007

Major B. J. Council
Chief of the Patrol Bureau
Durham Police Department
505 West Chapel Hill Street
Durham, NC 27701

Dear Major Council,

The recent report of your Chief on the Duke Lacrosse Case, and the silence of the rest of the Department, have left many Americans asking: is there one officer in the Durham Police Department with the courage to tell the country the truth about what happened?

I realize that speaking the truth could be personally and professionally very painful for you. You would face scorn from many of your colleagues, and you would certainly anger your Chief. You might even have to leave your job. Furthermore, even without these consequences, the truth itself is a painful thing to face, and speaking it would be painful on a personal level.

However, I also believe that, because this case has received so much national attention, the truth will come out eventually. That pain is going to have to be faced, one way or another. And I believe that in the long run, it will be better for everyone if someone inside your Department has the courage to bring it out.

Furthermore, although it would be painful, and could cost you your job, there are benefits that could come to you for speaking out. I would point you to the example of Sherron Watkins of Enron, who spoke the truth to CEO Ken Lay. Afterwards, Ms. Watkins could not find a job at a major corporation. However, she was also later asked to testify to Congress about her experiences, and she received a warm welcome there. She was written up favorably in Time magazine, and was also written about several times in Fortune (though they did criticize her for failing to take her concerns public before the scandal broke). Last year she was interviewed on BBC. She also wrote a book about her experiences, and she now runs a consulting firm. So, although speaking the truth about Enron carried considerable costs for her, it also conferred her great benefits.

You might ask yourself: if I speak the truth and lose my job, will it do any good? Will I no longer be able to fight crime? Will I be giving up everything I have lived for? My answer is: put yourself in the position of an ordinary juror in an ordinary criminal case. You hear testimony from a police officer. Do you believe it? I submit to you that, if that juror has been following this case, as many Americans have, the police officer (and, for that matter, the prosecutor), will have poor credibility. The juror might still believe them, but it will be more difficult to do so. And, if the jurors don’t believe the prosecutor or the police, a criminal could go free.

Speaking out now will not undo the damage that has been done. But if you do so, that juror will remember that there was at least one police officer who was honest. An officer who was unafraid to speak the painful truth, and to take the heat for doing so.


William Jockusch

Saturday, June 2, 2007

A Good Quota

KC Johnson has done us all a great favor by bringing to light the endless deceptions of Mike Nifong, the Durham Police, and many of the Duke Faculty. The Durham City council has now voted to establish a committee to investigate the actions of the police during the affair. They also agreed on a quota system to ensure that the committee has six men and six women, as well as six African Americans and six Caucasians.

Mr. Johnson has complained about the quota system. For once, I think he is wrong. In general I agree with Mr. Johnson that quotas are a bad idea. But what is this committee going to do? If it is honest, it is going to tell Durham, which is half black, and half female, that the police engaged in highly questionable conduct to pander to its black and female voters. I think it is crucial that the committee's report be believed. And judging by the history of this, I think Durham's black population will be much more likely to believe the committee's report if there are a lot of black people on the committee. The same goes for Durham's female population.

Fair minded people can already see perfectly clearly what happened. But the whole case makes it painfully obvious that lots of folks in Durham are not fair minded. Some of them can never be reached. But others can, and for the purpose of reaching these people, the makeup of the committee is brilliant.

I do have one concern with the council's plan. I don't think a committee is the best structure for a group of people to conduct any investigation. I think an investigation should be organized more like a dictatorship than a democracy. That is, an investigation should have one leader, and everyone else should answer to that person. This is the most effective way to conduct an investigation. That said, in this situation, credibility concerns may trump efficiency, and for purposes of credibility, the committee probably is best.