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May 28, 2006

Prosecuting Journalists: An Opening Salvo

Unfortunately for the readership (who we see have been enjoying the fine work of TigerHawk and Fuzzybear Lioness with occasional drive-by snark from Mr. On) the half-vast editorial staff have returned from Paradise. We'd like to thank both our esteemed guest-bloggers for their wonderful work. We look forward to reading their posts over the next few days as we try to salvage what's left of our liver which, last time we saw it, was doing the backstroke across a rather large marguerita glass.

As our First Official Act, we reflect that picking fights with Grim, while always a bit chancy, is usually highly entertaining. He writes:

Attorney General Gonzales says that we may soon begin prosecuting journalists for revealing classified material. The vehicle is the Espionage Act of 1917, says the article, although in fact that law no longer exists as such, having undergone major revisions -- an oddly sloppy bit of writing. I wonder if it is intended to elide the laws which do exist today (18 USC 793 and 794) with the disreputable history of the actual Espionage Act, in order to color the debate about this.

That tendency to "color debate" through selective reporting and releases of secret information is, of course, the reason we've come to the point of considering prosecutions. The government has long winked at this sort of thing, recognizing that the American people are suspicious of attempts to crack down on the free press. Yet the tendentious reporting on GWOT efforts since 9/11, particularly in Iraq, has worn out the patience of many Americans. It appears that many journalists are willing to print anything that will help them color the debate to their desired shade, without regard for the damage to our national interest or the number of our fighting men who might be killed over it.

Now at this point, friend Grim says a few things which begin to give me a bit of heartburn:

That said, I'm against these prosecutions, and won't -- should I be called to serve on a jury, which of course I shall not be -- agree to convict any journalist on these sections of the USC. I agree that we need to be cracking down on this business, but we need to be cracking down on those doing the leaks, not those doing the reporting.

First of all, I have little patience with jury nullification. In a criminal trial, it is the jury's job to consider the law carefully, then to review the facts presented to it by both the prosecution and defense. Their task is to decide whether the defendant's guilt has been established beyond a reasonable doubt. Later, if involved in the sentencing phase, they may consider evidence in mitigation. But guilt and mitigation are two separate issues **. One goes to the burden of proof and the other to the severity of the sentence once guilt has been established.

The wisdom or unwisdom of a law ought not to be a matter for the jury to ponder; otherwise anyone who doesn't think jail is "fair" or murder is "wrong" could simply set guilty defendants free. Juries are not elected representatives. They do not make law, nor are they empowered to selectively interpret law for us. They are empanelled to decide relatively narrow questions of fact on our behalf and ought to confine their activities to the charge given them.

Grim makes a good point, if the law indeed says this (I don't doubt him - I simply have not read it), about the capital penalty for reporting troop movements. However, the very severity of that penalty is a better argument for changing the law than a reason to enforce the law against one group and let another off scot-free. Moreover, when statutory penalties are excessive prosecutors generally shrink from using them for precisely the reasons Grim has already cited.

The press are the most obvious and flagrant violators of espionage laws: the leakers, on the other hand, remain hidden. Without the threat of prosecution, how does he imagine we will discover them? A look at the past few decades' worth of leaks is hardly encouraging in this regard. The problem is getting worse instead of better. Grim says something else here which completely mystifies me:

If the free exercise of the press is a Constitutional right, then that exercise can't be criminal activity. It can be immoral, destructive, wasteful, hurtful, and bad, but it can't be against the law.

Freedom of speech is also a Constitutional right but there are all sorts of limitations, both statutory and judge-made, on our right to speak our minds. Hate speech, for instance, is illegal in many jurisdictions: show me the Constitutional basis for that prohibition?

The fact of the matter is that, according to longstanding precedent and practice, not only is some speech subject to limits that have withstood Constitutional challenge, but the Supreme Court has ruled that journalists are owed no more protection than ordinary citizens.

Grim finishes with yet another statement I cannot agree with. Regarding the NSA leak, he appears to buy into the media's ridiculous excuse for it's own criminally irresponsible behavior:

Why would they do this? They do it to show us that there's a problem that needs attention. That there is a problem the government won't tell you about. A serious problem.

That's what the First Amendment is for.

This would all be a lovely excuse if there weren't an oversight committee already in existence for precisely this type of situation, making publishing classified information in the NY Times a completely unnecessary exercise... unless of course one had other motives for leaking the story. Which rather begs the question: why did James Risen publish that information? Why not simply turn it over to the oversight committee, knowing he now had an inside track on the developing story (because we all know something would have come out, though very likely not as sensational - and not as damaging - a story because Risen would have had to substitute Congress' judgment for his own when deciding what to publish).

Oh. That's why. The First Amendment does not exist to allow anyone and everyone with a grudge against the administration or a really, really burning political agenda to circumvent the law, nor to allow unelected and untrained journalists to substitute their "judgment" about what endangers the rest of us for that of our elected officials. If we want federal laws protecting journalists, we can ask our Congressional representatives to pass them. The fact is, the American people haven't done so and it is no more the job of some unelected jurist than some unelected journalist to right that wrong. He doesn't represent me, he has no legal authority, and no mandate. Grim continues:

Go after the leakers. The press is free. It needs to do its job better, but it isn't the function of the prison system to make it do so. You'll have to wait on the market.

Again, we allow the prosecution of both those who steal and those who receive stolen property; of both those who actively commit murders and those who plan them and help the killers avoid capture. Why do we do these things? Because we want to make people stop and think before they aid in the commission of a crime. Knowing this, it makes even less sense from a public policy perspective to exempt those who have the most to gain (both financially and professionally) from the commission of a serious crime while allowing them to shield the leakers.

Not only are journalists who publish leaks consumers of stolen property but by their acts they actively encourage the commission of a serious crime. Discouraging their acts discourages the crime itself, which in my book is a legitimate aim of law enforcement. Tolerating their actions, on the other hand, creates a culture of contempt for the law.

We are all responsible for our actions, and as professionals journalists should be held accountable for their acts. Furthermore, the proper standard is not that of an ordinary citizen but that of a reasonably prudent professional who should be presumed to have some knowledge of the proper way to handle this type of situation. Creating blanket exceptions for an unelected and unaccountable "loose cannon" class who then become above the law serves neither the press nor the American public well. This is a case where no one involved even bothered to go through the motions of reporting this "problem" up the chain.

As Michael Kinsley said rather trenchantly a few weeks ago,

If there is anything scarier than a president who thinks he is above the law, it is a president who thinks that journalists aren't.

Kinsley further notes the convenient inconsistencies in the media's newfound reverence for the adhering to whatever version of The Law or The Constitution they are selling this week:

It's wrong especially when contrasted with another current fever running through the nation's editorial pages: the ongoing issue of leaks and anonymous sources. Many in the media believe that the Constitution contains a "reporter's privilege" to protect the identity of sources in circumstances, like a criminal trial, in which citizens ordinarily can be compelled to produce information or go to jail. The Supreme Court and lower courts have ruled and ruled again that there is no such privilege. And it certainly is not obvious that the First Amendment, which seems to be about the right to speak, actually protects a right not to speak. Yet many in the media not only believe that it does. They believe passionately that it is not merely OK but profoundly noble to follow their own interpretation and ignore the Supreme Court's.

There is one huge, gaping hole in the media's stance. The Constitution lays out three co-equal branches of government, each of which can exercise checks and balances on the other and each of which not only has a duty to uphold the Constitution but the ability to interpret that document. The Supreme Court merely has the last word in that argument, but even on that score there is some disagreement on the recourse left to the other two branches. Mysteriously absent, of course, in all of this is any mention of our Fourth, self-elected and self-appointed branch of government which demands for itself the right to invent non-existent federal shield laws, overrule the Supreme Court, breach our national security at will, and wield the First Amendment as some sort of virtual trump card that allows it to break any law it finds inconvenient.

But where do they get this power?

It's quite simple. We give it to them. We the People.

We give it to them every time we make excuses for them. Every time we hold them to a different standard than any other professional. Every time we hold them to a lesser standard than our military or our other public servants.

No wonder they think they can do as they please. Who is going to hold them accountable? The simple answer is, we should. We should be pressing our representatives to pass sensible laws that will protect classified information and stand up in court, and we should hold our elected leaders accountable if they fail to enforce them.

And we should begin letting the media know that we do not appreciate their taking the law into their own hands.

** I'm going to correct myself here before someone else does it. This is a bit of an oversimplification. I'm talking about mitigating factors in the more general category of extreme youth or simple-mindedness (things that might cause a jury to be lenient even when the defendant is guilty), and not of issues which would legitimately be raised as defenses to a criminal charge. Now you can go ahead and point out the other flaw in my analogy while I get another cup of coffee... :)

Posted by Cassandra at May 28, 2006 08:04 AM

Comments

I respectfully disagree. My reasoning begins with the fact that it was the MSM calling for an independent council to find out who from this administration leaked the name Valerie Plame and to whom. Well they got what they wanted. And the only person so far to go to jail was Judith Miller, a reporter, and then she lost her job! And Valerie wasn't even covert. This case is completely different. The MSM published classified information that was leaked to them, and the only way to try to find the leaker is to call the reporter/reporters before a Grand Jury. Prosecute is a harsh word however leaking classified information on how we are trying to track down our enemies is close to treasonous, not just "gossip". And to publish such information is being an accomplice to that treason. The more these cases get unravelled the more complex with culprits, dupes, spitefull and malevolent "creatures" it becomes.

Posted by: Sam at May 28, 2006 11:11 AM

Sam, I'm a bit confused about who you're disagreeing with? The MSM called for an independent counsel to investigate the Plame "leak" (which, by the way, still has not been established after two years of investigation) then blocked the investigation they themselves had asked for!

And you think it's wrong for Judy Miller to go to jail for refusing to cooperate? The fact is, she never DID fully cooperate and yet she was allowed to leave jail. She also lied to the prosecutor (or at the very least suffered from the very same "faulty memory" as Scooter Libby, since she made false and misleading statements regarding her actions, yet she was never indicted). This would seem like a double standard.

Libby, on the other hand, doesn't get sent to jail until he is convicted in a court of law. He didn't refuse to answer - he is accused of lying. Different offense and you can't conflate the two.

Posted by: Cassandra at May 28, 2006 11:20 AM

Welcome back. I think. :)

Having just had my dinner, and the blood in my body therefore being preoccupied with something other than thought, I'd like to just say one thing to open with. I promise a more in-depth response when the blood returns and I've had time to digest my dinner, and your argument, as well as each merits.

The literature on jury nullification is vast. I don't expect to come to a point of agreement on it here. I'm from a school that endorses it wholeheartedly. There are relatively few lawyers and judges in this school -- for the simple reason that judges and lawyers hate having to deal with juries at all.

Nevertheless, according to my school of thought, it is wrong to say that the jury isn't empowered to ponder the wisdom or unwisdom of a law. What they are not empowered to do is set aside laws. They are absolutely empowered to set aside the application of a law in the specific case before them. That is a major reason why, in any criminal case and in any civil case where $20 or more is at stake, you are guaranteed the right of trial by jury.

The fact is that justice is not as simple as applying the rules. In an unpredictable world, there will indeed be exceptions. The adversarial court system doesn't give to the defense the right to "make exceptions." The prosecutor is not meant to consider the interest of the individual charged at all. The two remaining parties to the decision are the judge and the jury; and while the judge can throw out the charges, he has to have a reason that will stand up to the scrutiny of the rest of the government. The judge can acquit, if and only if the right to a jury trial was waived; but otherwise, it is only the jury that can make an accused man into a free man who cannot again be tried for the crime of which he was accused.

The jury is the only party to the justice system, in other words, that has the power to set a man free when the government is unjustly against him. I'm not, here, trying to suggest that such corruption is commonplace. I'm only suggesting that it does exist and has existed; that it was absolutely on the minds of the Founding Fathers, who had so often faced it firsthand; and it is a major reason they empowered juries as they did.

That's one good reason for jury nullification.

Another is demonstrated by the case of activist judges. (DAs can also be guilty of this). We frequently have cases where the judge refuses to abide by the plain meaning of the law. We know what the law says; we know what it meant; in many cases, we remember the debate about why it was passed in the first place. As citizens, we are part of the process of making sure that the Constitution and the laws are not walked-off with by a class of mandarins.

You worry about juries redefining the law, and certainly that can be a concern -- I remember that the Stone Mountain District in Georgia couldn't get a conviction on any offense for several months after the Rodney King case let the policemen walk. Like many powers, however, the existence of power in one place is balanced, and in turn serves to counterbalance, power in another place. Judges and lawyers do not own the law. They may not redefine it at will, and then insist that we apply their version. We have the perfect right to hold them to the real version, and refuse to send a man to prison over an offense invented by a jurist instead of a legislature. The People, as Jefferson said in his objection to Marbury, remain the final word on the law.

You say we are not empowered to do so, but in fact we are directly empowered to do so -- Constitutionally empowered. The Constitution requires the right to jury trials, and it forbids the government from re-trying a man set free by his peers. It does not set any other limitations on the jury, as it does on the other branches of government.

In the juror, as in the voter, the Republic finds the citizenry executing its power directly. The Founders worried about the tyranny of democracy -- but they worried at least as much about real tyranny. Just as they balanced the three branches of government between each other, so too did they balance the government with the People. We may replace our leaders at regular intervals if they do not keep the faith; and they may not banish even one of us to prison without the consent of his fellows.

That's "jury nullification" in a nutshell. Properly considered and applied, it's a necessary part of our Constitutional system.

Posted by: Grim at May 28, 2006 07:12 PM

Perhaps an illustration from other political systems would be useful. The ruling party in Mexico, for many years, was the PRI -- the "Party of the Institutional Revolution." Chairman Mao, likewise, often spoke of the need for a continuing revolution in politics, if socialism was not to solidify into some corrupt system, instead of proceeding (as he thought it would) into pure Communism.

Neither system, democratic socialism nor any Communist idea, managed to make that work. Both tried to institutionalize revolution, but both did so by vesting revolutionary powers in the government. That is bound to failure: the government becomes a tyranny.

The Founders succeeded where these others failed. They institutionalized the revolution: our system works, over the long haul, because it enables a continual series of revolutions against the accumulated powers in government. The balance between the branches is part of that, but at least as important is the balance between the government and the people.

Every citizen is authorized, by the Constitution itself, to be both a revolutionary and an outlaw. He is a revolutionary, if he chooses to be, every time he enters the voting booth -- for there he can cast out the government if he pleases. He is an outlaw, every time he sits on a jury -- for there he can cast off the law, and let men live in open defiance of the powers that be, if he pleases.

In all other places and in all other times, he is a loyal citizen and a law-abiding man; yet in those places, at those times, he is not only able but authorized to do otherwise forbidden things. The People retain these powers of revolution and outlawry. We have found a place for what every other system has forbidden; and from want of which, has therefore fallen into tyranny or collapse.

This is a shocking thing, properly considered. It has only one precedent that I know of, which is the great sundering that Christianity brought to our understanding. Chesterton described it best:

It is true that the Church told some men to fight and others not to fight; and it is true that those who fought were like thunderbolts and those who did not fight were like statues. All this simply means that the Church preferred to use its Supermen and to use its Tolstoyans. There must be some good in the life of battle, for so many good men have enjoyed being soldiers. There must be some good in the idea of non-resistance, for so many good men seem to enjoy being Quakers. All that the Church did (so far as that goes) was to prevent either of these good things from ousting the other. They existed side by side. The Tolstoyans, having all the scruples of monks, simply became monks. The Quakers became a club instead of becoming a sect. Monks said all that Tolstoy says; they poured out lucid lamentations about the cruelty of battles and the vanity of revenge. But the Tolstoyans are not quite right enough to run the whole world; and in the ages of faith they were not allowed to run it. The world did not lose the last charge of Sir James Douglas or the banner of Joan the Maid. And sometimes this pure gentleness and this pure fierceness met and justified their juncture; the paradox of all the prophets was fulfilled, and, in the soul of St. Louis, the lion lay down with the lamb. But remember that this text is too lightly interpreted. It is constantly assured, especially in our Tolstoyan tendencies, that when the lion lies down with the lamb the lion becomes lamb-like. But that is brutal annexation and imperialism on the part of the lamb. That is simply the lamb absorbing the lion instead of the lion eating the lamb. The real problem is -- Can the lion lie down with the lamb and still retain his royal ferocity? That is the problem the Church attempted; that is the miracle she achieved.

This is what I have called guessing the hidden eccentricities of life. This is knowing that a man's heart is to the left and not in the middle. This is knowing not only that the earth is round, but knowing exactly where it is flat. Christian doctrine detected the oddities of life. It not only discovered the law, but it foresaw the exceptions. Those underrate Christianity who say that it discovered mercy; any one might discover mercy. In fact every one did. But to discover a plan for being merciful and also severe -- that was to anticipate a strange need of human nature. For no one wants to be forgiven for a big sin as if it were a little one. Any one might say that we should be neither quite miserable nor quite happy. But to find out how far one may be quite miserable without making it impossible to be quite happy -- that was a discovery in psychology. Any one might say, "Neither swagger nor grovel"; and it would have been a limit. But to say, "Here you can swagger and there you can grovel" -- that was an emancipation.

Almost such an emancipation was achieved by the Founders. They managed to capture for our Republic the good of the law and the good of the outlaw; the good of the citizen and the good of the revolutionary. They found a way to bring them together in the same man, without diluting either.

So yes -- we do have the right to cast aside the law. We do have the right to overthrow the government. We retain those rights, and may prepare for them, without for one minute losing our devotion to enforcing the law and defending the state. The Constitution erected the borders that allow for this miracle; and it is a miracle indeed.

Posted by: Grim at May 28, 2006 08:39 PM

I apologize Cassandra. I didn't read carefully and the person I have a disagreement with is Grim. Jury nullification set O.J. Simpson free even though people with half a brain know he was the murderer. If a jury in a treason trial nullifies it they are poking their collective fingers in the eye of every citizen.

Posted by: Sam at May 29, 2006 09:49 AM

Grim:

Let me address your first comment, first.

If I knew juries were composed of all people like you, who I knew would give careful consideration to the facts and the law, my general position on jury nullification might be different. But that is not the reality I have observed. In practice, it tends to become an 'end justifies the means' argument for indulging whatever prejudices the jury has regarding the case, which I can't think is a good thing. In any event a lot depends on the jury foreman being smart enough or principled enough to ask the right questions and get the right answers from the judge - something that also doesn't happen often.

So while I agree in principle that unbending application of the law is not a good thing, there are many mechanisms already in place (often redundant ones) for righting that kind of wrong that don't involve the jury deciding on its own to disregard the law. A judge, for instance, can even set aside a jury verdict if it's obvious no jury, looking at the facts, could have reached their verdict on a reasonable basis. So the law is hardly unbending - I am not sure the case is made for disregarding existing remedies in favor of an informal decision to blow off the law because you don't agree with it.

On to your second comment: yes Grim, we do have the right to overthrow the government I suppose. But even the Founding Fathers trod very carefully and surrounded themselves with documents explaining the legal and philosophical basis for their rebellion. And even then they expressed the hope that war and outright rebellion could be averted if only their rights were respected.

The fact is that most people are not as reasonable as you are, and that general type of argument is not one I'd want to see widely advocated. Yes, in rare instances we can do these things, but the better way is to fix the system, not go around it. That breeds contempt for civil authority and the rule of law. It's the easy path, and it's going to be an uphill battle to convince me in most cases there isn't a better way even if the short-term results aren't fast and what we wish for.

Posted by: Cassandra at May 29, 2006 10:02 AM

First, I see no reason to believe that the Simpson verdict was an act of jury nullification. It appears to be the case, rather, that the jury decided it believed the defense instead of the prosecution. If that's the case, they'll rule the same way regardless of whether "they" are interpreting the law, or "the judge/State" is interpreting it. There's no evidence that the jury did not think the law against murder was valid, or that they thought Simpson was in fact a murderer but wanted to let him go anyway.

You are with that example not arguing against jury nullification, you're arguing against juries setting people free whom you think are guilty. That is to say, you're arguing against juries that disagree with you.

That, in turn, is to say that you're arguing against juries. You're not alone in that; I've known a few good lawyers, including one Chief Assistant District Attorney, who hate juries. They consider it a mucking-up of the legal process to invite a bunch of uniformed citizens, lacking any education in the fine points of the law, and involve them in the administration of justice.

Nevertheless, there are good reasons for the practice.

Posted by: Grim at May 29, 2006 10:09 AM

Actually as I recall Grim there was a good bit of talk about how many, many people wouldn't convict *even if they did think he was guilty* because they thought the prosecution was racially motivated or that blacks were overrepresented in the penal system (as guests, not jailers). And that, if it is what happened, most certainly is jury nullification.

I don't have a problem with juries. I just want them to perform the tasks they are assigned, just as I tend to want most participants in any process to play by the rules because I think most systems work better that way. Ironically, on a personal level I have little patience with rules. But I have seen as I've gotten older that people use the same "logic" I use when dissing rules as an excuse to do as they please. Therefore, wherever possible, I think people ought to try to respect and work through the process.

Sam, no apology needed. I just wasn't sure what you were saying :)

Posted by: Cassandra at May 29, 2006 10:18 AM

Cassandra:

If I may be so bold as to say so, I believe you are engaged in a category error on this business. You seem to think that jury nullification is "going around the system." In fact, this freedom of juries is actually a part of the system. The system includes it. The Constitution establishes the parameters by which juries exercise their power, and this whole area falls within those parameters.

You argue that the people can't be trusted to do so reasonably. That argument -- achieving the proper balance in our system between the People and the government -- is as old as the Republic. We aren't going to resolve it today, or ever; so it is worth noting that our positions each have an honorable pedigree. Mine is Jefferson's; yours, Hamilton's.

There is also the Jacksonian position, even more in favor of direct democracy than mine.

Still, I am happy with this position, because it is not only theoretically sound -- I have lain out the theory above -- but also practically sound, at least if you find a community of Americans who share your basic values in which to live. I would rather be judged by JarHeadDad, a few of the volunteer firemen I knew back home, and others of their ilk, than by any judge or lawyer. We can ask no more of the system than that it treats others as well as we would want to be treated ourselves, should we find ourselves accused of a crime.

Posted by: Grim at May 29, 2006 10:24 AM

I suppose it all depends on your view of the issue.

While I won't rule out the possibility I could be quite wrong, I did do some reading before writing this, and based my opinion on the following definition:

Jury nullification is a jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Instead, a jury bases its verdict on other grounds. Historically, examples include the perceived unjustness of the law or its application, the race of a party or accuser, or the jury’s own prejudices.

Jury nullification is a de facto power of the jury, and is not ordinarily described as a right. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition on retrying criminal defendants after an acquittal.

Be that as it may, you could not be more correct in one thing at least: mine is the more Hamiltonian view. Juries, I would remind you, have a long history of unjustly convicting defendants based on lovely factors like the color of their skin. It is not only failure to convict which concerns me.

History itself often shows juries are easily swayed by strong emotion: all the better reason in my view to want them to confine their deliberations to facts and the law. A simple look at what is going on with the Duke rape case is instructive in that regard. We have rules for a reason: to safeguard mostly the defendant in a trial.

I just want juries to respect them. By the definition I used, jury nullifiction disregards the facts and the law and rules in opposition to one or both. I cannot support that as a general principle.


Posted by: Cassandra at May 29, 2006 10:38 AM

Now for the longer response I promised.

First: You say that "when statuatory penalties are excessive, prosecutors generally shrink from using them." My observations have run the other way, at least in cases -- like this one -- where there is a possibility of capital punishment. A DA will often do whatever he can to establish a capital offense as at least one of the charges, because it enables him (or her, as in one case I'm thinking of, about which more below) to get a death-qualified jury. Juries of this type -- every member of whom has to attest that he is willing to sentence a man to death, if the charges are proven -- achieve convictions and avoid acquittals at a much higher rate than other juries. For a DA, whose job performance is measured by his percentage of convictions, that is a desirable thing.

Indeed, I once saw a case where a pair of neighbors had gotten into a fistfight at a local honky tonk. Actually, there was only one punch thrown. It was a fair fight -- the gentlemen went outside and squared off -- but after the first punch, the other man fell down. By happenstance, he struck his head on a rock and died.

The DA charged the other man with Felony Homicide, a law designed to allow for the execution of armed robbers or rapists who kill their victims in the process of the crime. It wasn't so much that she (the DA) intended to prove Felony Homicide; it's that it got her a death-qualified jury. The chain of logic she used to justify the charge was tortured, I thought: Felony Homicide requires that you commit murder while also committing a second, separate violent felony. The "separate" felony she charged was Aggravated Assault, which is assault coupled with an aggravating factor such as the desire to cause grevious bodily harm (plainly absent) or the use of a deadly weapon (plainly absent -- one would have thought). She charged that the aggravating factor was the use of a deadly weapon, as proven by the fact that the other fellow had died. I was never sure if she intended us to believe that the man's hand was a deadly weapon (even though it wasn't the blow of the hand that had killed the other fellow, but the blow of the rock) or whether she was intending us to accept that the fellow had used the Planet Earth to kill one of his peers.

In any event, she used the threat of the death-qualified jury, and the capital crime, to convince the man to "plea" to Aggravated Assault, accepting a recommendation for the maximum sentence, and he is now doing twenty years in prison for throwing a single punch in a fair fight. I'd have been happy to convict him on simple assault, of which he was actually guilty (although, as you know, I think the law should be changed to permit fair fights without penalty, that isn't the law right now). That's a misdemenor offense. Instead, he got twenty years, and faced the peril of the electric chair.

That is my first objection: I don't think it's true that prosecutors are, as a rule, restrained by a sense of justice. The system is adversarial, and -- having, like yourself, been around it (always on the side of the prosecution, I might add -- I don't know any defense attorneys) -- what impresses me is that the jury is the only party that can have "justice" as its interest in the case. The judge's job is to apply the law, not to pursue justice -- if he does not focus on applying the law, he is failing his duty. The prosecutor's job is to make an aggressive case, regardless of whether that case involves some bending and stretching of the law through argument. The defense's job is to attempt the freeing of their client, regardless of whether they know he's really guilty.

Only the jury may, as part of their duty, consider the question of whether it would be just to send a man up river under the circumstances -- apart from the separate question, which they also consider, of whether he is guilty of a violation of the law. Yet that can be an important consideration. The fact that some juries have sometimes misused that power does not change the need for the power: every part of the system has been misused at one time or another, men being men and humanity being fallen. I have cited a DA whose behavior was shameful, to my way of thinking, though she was doing what DAs do; I'm sure we could both find examples of judges not doing their duties. Some juries have sometimes failed; so have some judges. The powers granted each party exist to balance the fact that the other parties will sometimes fail.

That is the first objection.

Posted by: Grim at May 29, 2006 10:47 AM

My second objection is simple, and arises from this part:

This would all be a lovely excuse if there weren't an oversight committee already in existence for precisely this type of situation, making publishing classified information in the NY Times a completely unnecessary exercise... unless of course one had other motives for leaking the story. Which rather begs the question: why did James Risen publish that information? Why not simply turn it over to the oversight committee, knowing he now had an inside track on the developing story (because we all know something would have come out, though very likely not as sensational - and not as damaging - a story because Risen would have had to substitute Congress' judgment for his own when deciding what to publish).
What you are attacking there is the NSA case. What I was actually talking about in the paragraph you cited was the TV News report on weapons being brought across the American border.

The point was that we can all find occasions when journalists or bloggers -- I mentioned Yon separately -- are performing a useful service by bringing to public attention things the government would rather not discuss. The fact is that the NSA case was, I agree, seriously damaging and a violation of journalistic ethics. It may even have been a violation of law -- just not THIS law.

We can't afford to have an Espionage Act precedent allowing the government to use a capital crime to threaten journalists into not saying things they'd rather went unsaid. We can't let our outrage over the behavior of the New York Times, which is proper, cut the throat of the blogosphere or the local press, which is behaving responsibly. If we are going to prosecute them, we need to do so using much more limited tools than this particular code section. It isn't a fine enough tool to punish the behavior we want to punish, while protecting the behavior we want to protect.

That is the second objection.

Posted by: Grim at May 29, 2006 10:58 AM

My second objection is simple, and arises from this part:

This would all be a lovely excuse if there weren't an oversight committee already in existence for precisely this type of situation, making publishing classified information in the NY Times a completely unnecessary exercise... unless of course one had other motives for leaking the story. Which rather begs the question: why did James Risen publish that information? Why not simply turn it over to the oversight committee, knowing he now had an inside track on the developing story (because we all know something would have come out, though very likely not as sensational - and not as damaging - a story because Risen would have had to substitute Congress' judgment for his own when deciding what to publish).
What you are attacking there is the NSA case. What I was actually talking about in the paragraph you cited was the TV News report on weapons being brought across the American border.

The point was that we can all find occasions when journalists or bloggers -- I mentioned Yon separately -- are performing a useful service by bringing to public attention things the government would rather not discuss. The fact is that the NSA case was, I agree, seriously damaging and a violation of journalistic ethics. It may even have been a violation of law -- just not THIS law.

We can't afford to have an Espionage Act precedent allowing the government to use a capital crime to threaten journalists into not saying things they'd rather went unsaid. We can't let our outrage over the behavior of the New York Times, which is proper, cut the throat of the blogosphere or the local press, which is behaving responsibly. If we are going to prosecute them, we need to do so using much more limited tools than this particular code section. It isn't a fine enough tool to punish the behavior we want to punish, while protecting the behavior we want to protect.

That is the second objection.

Posted by: Grim at May 29, 2006 11:00 AM

Third:

"Again, we allow the prosecution of both those who steal and those who receive stolen property; of both those who actively commit murders and those who plan them and help the killers avoid capture. Why do we do these things? Because we want to make people stop and think before they aid in the commission of a crime."

While that is true, there is no Amendment in the Bill of Rights that says, "Congress shall make no law respecting... the receipt of stolen property."

Congress' rights in this matter are Constitutionally circumscribed. This is another category error.

I'm not arguing that journalists are above the law. The First Amendment is a law too. Thus, just as juries' powers are part of the system -- not setting aside the system -- so too is the press' immunity part of the law, not putting them "above the law." The law contains the exception. It contains it in the most basic and fundamental part of the law: the Constitution itself.

The argument has been fielded against me by several people, so you're hardly alone in this. Still, it's worth noting. I'm not advocating lawlessness. I'm not advocating a failure to enforce the law. I'm advocating a recognition that the Espionage Act's remaining subsections cannot apply to the press, because of the Constitution's specific restriction on Congress from passing such laws.

That seems right to me. And it is objection three.

Posted by: Grim at May 29, 2006 11:07 AM

Yes, it is:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press

And yet we have many, many laws that abridge freedom of speech.

I knew I shouldn't have started an argument with you :)

Posted by: Cassandra at May 29, 2006 11:28 AM

Finally, fourth, and perhaps most importantly:

I'm not against prosecuting journalists categorically. I'm against using this particular law to do it, for the various reasons I mentioned.

If a narrower tool can be found, I do not necessarily object to using it, subject to whatever concerns may arise from the particulars of that tool (whatever it might be). If you can find a way to prosecute them for "receipt of stolen property," instead of for publishing the information, go to it if you want.

I have another objection, but I am not going to raise it out of respect for your blood pressure. It is the sort of thing that would make your eyes pop out with rage, and I don't want to do that to you so soon after you have come back from the beach. :)

Posted by: Grim at May 29, 2006 11:34 AM

"And yet we have many, many laws that abridge freedom of speech."

Well, that is exactly my point. :) We can't trust the legislators to honor the restrictions placed on Congress. We can't trust the judges to enforce those restrictions. We can't trust the prosecutors not to have people charged under those statutes.

So it falls to us. The jury is the last line of defense. If we find a government's incursion into protected territory unacceptable -- I have explained why I think the Espionage Act sections are not acceptable -- we must stop it. We're the last ones who can.

Posted by: Grim at May 29, 2006 11:37 AM

...and apparently we shouldn't be able to trust juries to apply the law to the facts without re-writing it to suit their whims.

Grim darlin' :D I knew this would be an uphill battle.

That same argument is used by everyone else who doesn't want to be bound by what I consider the rules and you consider unnecessary restrictions on your liberty.

I think our basic difference is exactly what you said it was: mine is a more Hamiltonian view of human nature (i.e., we're fallible and there are rules because people screw up so much). It's always interesting to note that unlike the rest of the Founding Fathers, Hamilton didn't grow up in a privileged station. He saw people from all walks of life and witnessed some pretty brutal things that people like Jefferson tend to gloss over in human nature.

Which is fine, but we wouldn't have rules in the first place if people didn't keep screwing up and hurting each other. Human nature is imperfect and so we make laws. Laws are imperfect and so we...???? Try to make them better? Jury nullification doesn't do that. It also severs the connection between a "bad" law and the consequences so it's not ever going to get fixed - no consequences, no problemo. We'll just ignore the law when it suits us to. That's not right.

My view is that it's better to address the root of the problem (i.e., fix the law that needs to be changed) than go around it by refusing to enforce it. That solves the immediate but not the long-term problem and does violence to the system.

There's an awful lot of arbitrariness that can get wrapped in any position of "I'm going to do this because I can't trust anyone else to do their job". Government *is* us - at some point we have to take ownership.

That said, I do see a good deal of your argument in principle. I merely disagree about the degree to which people can be trusted. Years ago, I wouldn't have, but sadly my experience has taught me otherwise. I realize you disagree, and respect your right to do so.

Posted by: Cassandra at May 29, 2006 12:23 PM

Oh, I agree that many people can't be trusted. I just don't see a remedy for the fact. Putting more power in the non-democratic aspects of the government changes the balance of power in ways that I think are harmful. It's better to deal with the fact that some people can't be trusted.

As you say, government is us. We should take ownership. That means doing your duty as a voter, as a juror, and as a citizen more broadly. I think we should improve the education process, and that we should as a society place more focus on duty than we do on rights.

That said, I'm comfortable with the balance -- recognizing that we wheel wildly one way on occasion, and wildly the other on another. Yet the balance is held, in spite of individual atrocities by all sides.

That's an adventurous way to run a nation. (I am tempted by another lengthy Chesterton quote, from "Authority and the Aventurer," but I shall not trouble you with it.) To be honest, though, I prefer it to more stable but less free methods. I can live with the occasional injustice, whether it arises from bad judges or bad juries. I can't live with tyranny.

There are opportunity costs here. We allow juries to set aside the law; we avoid a certain number of revolts. If Kelo is enforced in certain areas, it may lead to widespread jury nullification. In return, we won't have street battles.

This is the kind of thing of which I approve. It's not perfect, but life isn't. I can accept that.

Posted by: Grim at May 29, 2006 12:54 PM

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