Nakoula Basseley Nakoula is in federal prison. He's scheduled to remain there until September. He's held under the name "Nakoula Basseley Nakoula," not as "Sam Bacile" (the name he used make the anti-Islamic film "the Innocence of Muslims,") nor under the name "Mark Bassely Youssef" (which he now claims is his current correct name, notwithstanding that he pleaded guilty to a federal crime under the Nakoula name).

Why is he in prison? It depends on who's talking.

To hear some people talk, he's in prison because he made an anti-Islamic movie, because the Obama Administration is eager to cover up the root causes of the Benghazi catastrophe, and because the Obama Administration wants to appease censorious Islamists. Some people merely imply this with headlines: "The guy who made “Innocence of Muslims” is still in jail, and we still don’t know who attacked Benghazi" Some people, like National Review's Rich Lowry, come right out and say it, asserting that Nakoula would not have been arrested and charged with a supervised release revocation but for his speech:

He is not going to win any good citizenship awards and violated the terms of his probation by using an alias (something Nakoula admits).

A violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards. Not for Nakoula.

This wasn’t a case of nailing Al Capone on tax evasion. As Nina Shea of the Hudson Institute points out, Al Capone’s underlying offense was racketeering and gangland killings. Nakoula Basseley Nakoula’s underlying offense wasn’t an underlying offense. He exercised his First Amendment rights.

Some call him a political prisoner.

These people all have something in common. They've never prosecuted a supervised release revocation in federal court. They've never defended someone accused of violating supervised release in federal court. They've never worked as a federal probation officer or filed a petition to revoke a sueprvisee's release. They've never worked as a federal judge and approved or denied such a petition, or presided over such a hearing. They've never seen a supervised release revocation hearing. Moreover, I'd wager a substantial amount of money that before they opined about the proceedings against Nakoula they didn't talk to anyone who had ever done any of these things, or anyone reasonably well informed about how they are done.

I've observed, and participated in, federal supervised release revocation proceedings since 1995. In writing about Nakoula I've drawn not only on that experience but on the actual documents from his case and on the law. My premise has been this: anyone on supervised release for a federal fraud conviction and owing more than $700,000 in restitution would face supervised release revocation if the Probation Office discovered that they were using aliases, engaging in unreported financial transactions, and using computers in those transactions, all in violation of their terms of release. Most federal judges would issue arrest warrants, not summonses, and most federal judges would order jail time to such a person if they found he had obtained and used a false driver's license and concealed transactions from the Probation Officer. Rich Lowry's claim that "[a] violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards" is quite frankly pulled straight out of his ass. Supervisees are routinely arrested rather than summoned, particularly when there are indications they might be a flight risk — like using a false identity. Supervisees are routinely returned to prison for offenses that would never be prosecuted federally as separate crimes.

Is Nakoula in federal prison because he made the "Innocence of Muslims" video? Superficially, perhaps, in the sense that his behavior may have escaped detection if he hadn't become famous. It's even possible that someone in the Obama Administration tipped off — or pressured — the Probation Office about his conduct. (If that's what happened, there ought to be a Congressional investigation.) But Nakoula's conduct is the sort that would absolutely be pursued if detected by his Probation Office and would routinely result in a revocation of supervised release and a return to federal prison. People saying otherwise don't know what they are talking about or don't care, or both.

I support a vigorous Congressional inquiry into the attack at Benghazi. The most charitable interpretations of the inquiry to date raise grave concerns about the honesty and decency of Obama Administration officials. I support asking hard questions about whether anyone in the administration contacted the U.S. Probation Office in Los Angeles about Nakoula. But this inquiry doesn't require, and shouldn't encourage, lying about the law. We should absolutely fight, to our last breath, pressure to yield to unprincipled "hate speech" and "anti-blasphemy" norms of other countries. But the cause of freedom of expression is not advanced by cynical and dishonest partisan bullshit.

Edited to add:

Mr. Baldwin, you're completely awesome. But my days of taking you serious politically are certainly coming to a middle.

This will be a familiar story to anyone who has ever represented a criminal defendant famous enough to make the news.

You client is convicted at trial, or pleads guilty. You work to put together a convincing presentation for sentencing that will humanize your client — help the judge see him (or her) as a human being, as someone whose offense is only one part of a larger life, as someone who has done good things as well as this bad thing. You ask friends and colleagues to write letters in support of your client. If your client is like most people, his life has been a mix of good and bad; some people admire him for some of the things he's done, and he's treated some people decently. Your client's friends and colleagues write letters in support, helping put his actions in the context of his whole life. Because they are human, their memories of your client are emotional and idiosyncratic. In their letters, they tell stories not only of the big things (support for family and friends, charitable work, dedication to the job) but the small, silly things that tend to touch us as people. You file the letters as part of your sentencing brief.

Then the media reads the sentencing brief, picks out one of the small and inconsequential things mentioned by a supporter, and runs it as the sensational headline, suggesting that it is the entire premise of your sentencing position.

Today's example: disgraced former Congressman Jesse Jackson, Jr.

Jackson, a deeply flawed and troubled man, resigned and pleaded guilty to a federal crime for misuse of campaign funds. It's frankly ridiculous he was reelected, and he clearly doesn't belong in Congress, and by his own admissions he abused his position and broke the law, and must face the consequences.

But now he's facing the federal criminal justice system, and his lawyers are trying to show the judge the whole story of who Jesse Jackson Jr. is. They've presented evidence of his family life, his work in Congress, his mental problems, his whole life. They've submitted letters from people who know and like him talking about dozens of topics.

What topic gets play?

A single colleague — Rep. Marcia Fudge (D-OH) — mentioned that he was an enthusiastic participant at karaoke nights. She did so in passing in the context of praising his life and work. Suddenly, though, that silly detail is the story: the media is framing it as "defense seeks lower sentence for karaoke."

Talking Points Memo: Congresswoman Wants Jackson’s ‘Karaoke Nights’ Considered In Sentencing

Huffington Post: Jesse Jackson Jr., Rep. Marcia Fudge Tells Judge, Is 'Charming' Karaoke Star Who Deserves Break

Chicago Tribune: Ohio lawmaker urges mercy for Jackson Jr., cites karaoke skills

Los Angeles Times: Ohio lawmaker urges mercy for Jackson Jr., cites karaoke skills

Notice that this is not just a matter of media political bias. Nominally "progressive" websites, and papers with a liberal sensibility, reliably go straight for the karaoke headline when talking about a fallen Democratic Congressman. Context doesn't sell; silly bits ripped from context sell.

Insipid sensationalism is an old story. It was old in 1979 when the media lied to the public about "The Twinkie Defense" in Dan White's trial for murdering Milk and Moscone.

Insipid sensationalism is what sells. Insipid sensationalism is why we have, too often, journalists who care more about maintaining relationships with law enforcement than questioning law enforcement. Insipid sensationalism is why we get misleading or incomplete reporting about criminal justice, little attention to horrifying problems in the system, and a surfeit of detached amusement where there should be outrage.

Some day soon one of the journalists who wrote one of the karaoke stories above will try to be taken seriously writing something serious and frowny about criminal justice. Please join me in inviting them cordially to shut the fuck up.

The U.S. Attorney's Office for the District of Massachusetts has just filed two criminal complaints arising from the Boston Marathon bombing investigation. One complaint is against two men, Dias Kadyrbayev and Azamat Tazhayakov. The other complaint is against one man, Robel Phillipos.

Documents are already available on PACER.

The current docket (the record of court actions in the case, with links to documents) is here in the case against Kadybayev and Tazhayakov. The complaint cover sheet against them is here. The affidavit in support of the complaint against them — which has an FBI agent's statement of the evidence supplying probable cause — is here.

The docket in the case against Pillipos is here. The complaint against him is here. The affidavit — which appears at a brief glance to be the same one from the case against the other two men – is here.

The first complaint charges Kadybayev and Tazhayakov with a conspiracy to violate federal law in violation of Title 18, United States Code, section 371 — the generic federal conspiracy statute. The object of the conspiracy — the federal law the defendants are alleged to have conspired to violate — is destruction of evidence in a federal investigation in violation of Title 18, United States Code, section 1519.

The second complaint charges Phillipos with making a false statement to the government in violation of Title 18, United States Code, section 1001.

Read the affidavit yourself. Very briefly, the affidavit alleges that Dias Kadyrbayev and Azamat Tazhayakov saw emptied-out fireworks in accused bomber Dzhokhar Tsarnaev's room, concluded that he was one of the Boston Marathon bombers, and decided to dispose of the container of hollowed-out fireworks, apparently to protect Tsarnaev. Phillipos, the FBI alleges, gave multiple statements and initially lied about what he knew of actions by Dias Kadyrbayev and Azamat Tazhayakov.

A few points:

1. They may or may not have their first appearance today, May 1st. here's what I wrote about how a first appearance works and what happens next.

2. Why did they charge Phillipos separately? It's too early to say. They may be cutting him out from the other two to testify against them, they may be avoiding "misjoinder" (putting together different charges and defendants that don't belong together) even though it's premature to worry about that before the indictment, or there may be some other strategic reason.

3. Remember how I said earlier today that you should shut up rather than talk to the feds, because you'll just wind up (1) confessing, (2) making a stupid false statement that will make you look guilty, or (3) make a stupid false statement that will get you charged with making a stupid false statement? Yeah. This is what I was talking about.

4. The same magistrate judge signed off on the complaints. I'm going to have to come up with more conspiracy theories.

It's my best piece of advice — and the advice most consistently ignored. If you're dealing with the government, and you are in any doubt, why won't you just shut up?

Yesterday at Ars Technica, Nate Anderson had a great piece about the FBI's capture of a couple of meatheads who were extorting a professional poker player with nude pictures hacked from his email account. Some people may walk away with the lesson, "you're a fool to keep your naked pictures online." Some may walk away with a Coen Brothers type of lesson that some criminals are stupid and doomed to failure. I walk away with the same lesson as always: shut your damnfool mouth and stop trying to convince law enforcement of anything.

Nate's article tells about two defendants — Keith Hudson and Tyler Schrier. The FBI confronted them both in a manner well-calculated to scare the living shit out of them, rousting Hudson at gunpoint at his home and yanking Schrier out of his dorm room in his underwear. Most people have a hard time thinking straight under those circumstances. They forget things, they misread signals, they judge poorly, and they let their desperation to control the situation overcome whatever minimal good sense they have. The only good approach is to shut up. Hudson and Schrier didn't. They both talked, and both started with a series of stupid and easily countered lies, before blundering around towards the truth.

"The FBI does not fly us out here and we don't break into your door to talk to you if we don't have a substantial amount of evidence against you," said one of the FBI agents to Hudson. Actually, the FBI goes off on a wild tear based on lousy evidence all the time. But this much is true: when the FBI shows up to interrogate you, there is an excellent chance they already know the answers to their questions (or think they do) and already have evidence lined up to back their beliefs. When you run your fool mouth, you are probably doing one of three things: (1) incriminating yourself by admitting to parts of their case, (2) telling stupid and easily disproved lies, which make you look guilty, thus making you easier to convict, and (3) telling stupid and easily disproved lies that the government will use to pile additional charges onto you.

Indeed, in this case, when the feds indicted Hudson and Schrier, they added a charge under 18 U.S.C. section 1001 against Schrier for lying to the FBI during his interrogation. They did that even though the FBI agents knew it was a lie at the time and had the evidence they needed to disprove it and it didn't slow or deter the investigation by a hair. Now, that extra charge probably didn't have much impact on Schrier's sentence — it's really chickenshit rubble-bouncing — but it's an additional federal felony that makes his case more complicated, needlessly.

Some people are sociopaths and would try to fast-talk God Almighty. Some people talk compulsively under any pressure. And some people have somehow picked up a foolish notion that if they don't talk, if they don't cooperate, if they don't show the cops that they're good citizens, they'll be hustled off to a cell even if they've done nothing, or that they will lose a chance to divert the cops from the something they have done. Here's the truth: maybe, possibly, there could be a scenario where your long-term interests will be hurt if you refuse to talk to law enforcement. Maybe, possibly, in some extremely unlikely scenario, you could do actual harm to your fortunes by asking to talk to a lawyer before you talk to the cops. But those remote and hypothetical scenarios are vastly outweighed by the strong likelihood that you will make your situation much worse by talking. The "I better talk to the cops right now or things might get worse" approach is like deciding to jump off a bridge because you might get struck by lightening if you keep standing on it.

Shut up. For the love of all that is holy just shut up.

"Any man's death diminishes me, because I am involved in Mankind," says John Donne.

But why stop there? Any man's (or woman's) fatigue or writer's block diminishes me as well.

Is anyone sparing any thought for the people furiously writing conspiracy theories about the federal prosecution of accused Boston Marathon terrorist Dzhokhar Tsarnaev? Does anyone even care about the quality of home life of the people laboring to misinform their readers about federal criminal procedure and the contours of constitutional rights?

I care. I worry about whether Pat Dollard is spending enough time with his real and/or imagined family. I kvetch about whether Daniel Greenfield makes time to go to the dry cleaners and buy fresh tinfoil. I'm concerned that the folks at Jihad Watch haven't had time to pick up their prescriptions at RiteAid. I'm concerned that Megyn Kelly has had much less time to spend sneering incredulously at her loved ones. Is Paul Mirengoff eating right? And is John Yoo working out? You're only one person, John, and you can't applaud all the torture in the world all by yourself.

I can help.

I've made up some conspiracy theories and ominous observations about federal criminal procedure for you. Go home early! Catch a movie. Mow the lawn. Throw the ol' pigskin around with the kids. I've got this.

Continue Reading »

In the wake of the terrorist attack on the Boston Marathon and the identification, arrest, and charging of Dzhokhar Tsarnaev, I've been feeling very self-conscious. That's because lots of people are talking about federal criminal law and criminal procedure, subjects with which I am somewhat familiar. When they do, I ask myself: when I very frequently talk about things I haven't bothered to learn about, do I sound like that? God help me.

Today: nutty and deliberately ignorant conspiracy theories about Tsarnaev's first court appearance.

As I mentioned early in the week, Tsarnaev made his initial appearance from his hospital bed on April 22, 2013, the first court day after his arrest. At that hearing, United States Magistrate Judge Marianne B. Bowler said this to him:

You have a right under the Constitution of the United States to remain silent. Any statement made by you may be used against you in court, and you have the right not to have your own words used against you.

In other words, Magistrate Judge Bowler informed Tsarnaev of his Fifth Amendment rights.

(The transcript suggests she did so incorrectly and confusingly — the last clause just isn't right unless you modify it to say "you have the right not to be compelled to say things against yourself," because the government certainly can use your words against you if those words aren't compelled. That may mean that the court reporter got it wrong, or that Judge Bowler had the sort of slip of the tongue any of us can have speaking extemporaneously.)

Judge Bowler reading Tsarnaev his rights has caused great consternation in some circles. It has been reported that he initially answered questions but stopped talking after read his rights. Outrageous! Critics want to know: why was he allowed to make a court appearance? Why did the judge read him his rights? More critically, what motive did the judge have to do so?

The jittery and uncombed are eager to rush in to answer that question.

First, I give you the one-vowel-short-of-aptly-named Pat Dollard, whose headline shrieks "SHOCK: JUDGE WHO ENDED INTERROGATION OF BOSTON BOMBER WITHOUT DOJ KNOWLEDGE LINKED TO MUSLIM BROTHERHOOD":

UPDATE: Judge Bowler lists herself as “a dedicated international traveler” on her bio in Business Week. Where does she travel to in such a dedicated fashion? Who does she see there, and what does she do, so regularly as to be self-described as “dedicated”. And, perhaps, “dedicated” to anything in particular? Did she take on a radical Muslim boyfriend in her travels?

International travel is, indeed, suspicious. An international travel is likely to encounter foreigners, some of whom are not even white.

Or take Daniel Greenfield of Frontpage Mag, who has this on "Boston Bomber Magistrate’s Middle Eastern Connections":

As FOX News reported and Robert Spencer noted, Dzhokhar Tsarnaev stopped talking once he was prematurely read his Miranda rights. That helps the authorities establish the lone wolf narrative. Whatever else we might have learned from him is probably lost.

. . . .

While Islamic infiltration of our political system is well known, the infiltration of our legal system is less well known, but operates within similar parameters with foreign contacts being made. There is no way of knowing how much Bowler has been influenced by her connections with the legal and political systems of the Muslim world, but it is telling that her international judicial relations appear to begin and end with the Muslim world.

The very fact that there is no way to know how much Bowler was influenced by Muslims show exactly how shadowy and mysterious Muslims are!

Now, here's why these people are full of shit.

Magistrate Judge Bowler was required by federal law to tell Tsarnaev of his right to remain silent. Rule 5 of the Federal Rules of Criminal Procedure, governing initial appearances, says this:

(d) Procedure in a Felony Case.

(1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following:

(A) the complaint against the defendant, and any affidavit filed with it;

(B) the defendant's right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel;

(C) the circumstances, if any, under which the defendant may secure pretrial release;

(D) any right to a preliminary hearing; and

(E) the defendant's right not to make a statement, and that any statement made may be used against the defendant.

And how did Magistrate Judge Bowler wind up holding an initial appearance? The U.S. Attorney's Office — the federal prosecutors, an arm of the U.S. Department of Justice — filed the criminal complaint on Sunday, April 21, 2013, initiating the criminal case. The docket for the case to date is here. Filing a complaint against a person in custody starts the federal criminal process moving, leading naturally to a first appearance. If the feds hadn't filed the complaint, there's no way Judge Bowler could have held a hearing with Tsarnaev without someone filing a habeas corpus petition. Judges can't initiate such federal criminal proceedings on their own.

The Patient Zero for this plague of derangement is Fox News' Megyn Kelly:.

The FBI filed a federal criminal complaint against the 19-year-old on Sunday, and federal District Court Judge Marianne Bowler [emphasis added] arrived at the hospital where he is being treated to preside over his initial hearing Monday, when she read him his Miranda rights.

[FBI officials told The Associated Press Wednesday that Tsarnaev acknowledged to investigators his role in the attacks before he was advised of his constitutional rights. He reportedly said he was only recently recruited by his brother to be part of the attack.]

But Fox News' sources say there was confusion about Bowler's timing, with some voicing concerns that investigators were not given enough time to question Dzhokhar under the "public safety exception" invoked by the Justice Department.

Someone with a saintly level of patience could probably teach prominent journalist Megyn Kelly the difference between a District Court Judge and a Magistrate Judge if she wanted to know for, say, the purpose of reporting accurately about the most important federal criminal case of the year. Maybe the same person could teach her how to use the Google to see which one Magistrate Judge Bowler is.

But Kelly is merely a carrier of the derangement. It is to her credit that she acknowledges being told that Rule 5 required Magistrate Judge Bowler to inform Tsarnaev of his rights — and that she acknowledges being told that the "Judge Bowler initiated the hearing too early" theory is bullshit.

Two officials with knowledge of the FBI briefing on Capitol Hill said the FBI was against stopping the investigators' questioning and was stunned that the judge, Justice Department prosecutors and public defenders showed up, feeling valuable intelligence may have been sacrificed as a result.

Yes, federal agents are often against application of the rule of law. But:

But Justice Department spokesman Dean Boyd disputed the claims, saying that the suspect’s initial appearance was scheduled following the filing of the criminal complaint in a manner “consistent” with procedure – and that the agents were aware.

“The Rules of Criminal Procedure require the court to advise the defendant of his right to silence and his right to counsel during the initial appearance. The prosecutors and FBI agents in Boston were advised of the scheduled initial appearance in advance of its occurrence,” Boyd said.

A federal law enforcement official also told Fox News that the courts, not the Justice Department, made the decision on when and where to hold the hearing.

“The (FBI) agents and prosecutors were notified beforehand,” the official said, claiming those agents had already left the room when the judge came in.

So: some federal law enforcement official says that "the courts" made the decision when and where to hold the hearing. That is almost certainly literally true. But it's almost certain that first, the U.S. Attorney's office informed the court that they were ready for a hearing. Again, the feds initiate cases, and they initiate first appearances by showing up at court with someone in custody or asking the court to hold a hearing. Is it physically possible that Judge Bowler could, on her own initiative, scheduled a hearing after the feds initiated the case by filing the complaint? Yes. But it is an extraordinary claim, requiring some sort of evidence. Unnamed "federal law enforcement officials" are not known for their command of federal criminal procedure.

In short: the proposition that Judge Bowler was motivated by some sleeper-cell jihadist agenda to rush to inform Tsarnaev of his rights in order to shut him up is very stupid.

I recognize that federal criminal procedure is not common knowledge. But it's not hard to figure out either. I figured it out and I'm more than a little dim. A brief call to any first-year Deputy Federal Public Defender or Assistant United States Attorney, let alone any experienced federal criminal practitioner, would have cleared up these imbecilities.

But who wants to do actual research before accusing a judge of being a terrorist parisan? The wild-eyed people sniffing every falafel Judge Bowler ever ate are either (1) crazy (2) lazy (3) stupid or (4) dishonestly partisan, or some combination of those.

Update: A reaction from Pat Dollard:

Perhaps Pat Dollard is not able to understand the difference between an interrogation by law enforcement and an appearance in court. Or, more likely, he doesn't care.

Edited Again:

And in the category of "really ought to know better," consider Paul Mirengoff at Powerline:

I have never practiced criminal law (except briefly at the international level) and have not studied it since 1974. Thus, like most Americans, much of what I think I know about criminal procedure comes from watching television and movies.

My viewing experience does not include any instances in which a judge read a criminal defendant his or her Miranda warning in the middle of police interrogation. Thus, I was shocked to learn that this happened in the case of the surviving Tsarnaev terrorist.

. . . .

I can’t help but that suspect that it was the Obama administration that decided Tsarnaev should receive the Miranda warning. After all, wasn’t it the prosecutor who brought the judge to Tsarnaev’s hospital room in the first place? And isn’t it almost certain that the local prosecutor, an assistant U.S. attorney, acted on instructions from the higest level of the Justice Department? Line prosecutors don’t make decisions about how to treat terrorists in high profile cases when there is time to consult the DOJ.

The party line is that the magistrate judge made the decision to Mirandize the terrorist because she deemed her appearance in the hospital as constituting an appearance in court by Tsarnaev. This strkes me as ridiculous, unless the prosecutor characterized the event as the equivalent of a court appearance.

Although Mirengoff might be known for engaging his mouth without engaging his brain, he's not a moron, and not lazy: he's a well-qualified attorney. But his post amounts to saying "please congratulate me for refusing to research and for assuming criminal procedure works like I see on TV." Mirengoff is perfectly capable of researching the Federal Rules of Criminal Procedure and confirming that Rule 5 requires the judge to inform a defendant of their rights. Mirengoff attempt to evade the issue by asking why the judge would "deem her appearance in the hospital as constituting an appearance in court," and calling this ridiculous. It is Mirengoff's response that is both ridiculous and willfully ignorant. If the hearing held in the defendant's room wasn't an initial appearance, what the devil was it? It wasn't a probable cause hearing — the judge had already found probable cause by approving the complaint, and no further probable cause determination was necessary until either an indictment or preliminary hearing. It was run, in every respect, exactly like an initial appearance. Federal courts sometimes conduct initial appearances by video or in a hospital room when the circumstances require, as minimal research would have shown. It's very likely that the U.S. Attorney's Office pushed for an initial appearance in the hospital in order to ward off any future argument that the government failed to take Tsarnaev before the magistrate "without unreasonable delay" as required by Rule 5(1)(A).

If Meingoff is embarrassing, the loathsome and amoral torture-fetishist John Yoo is infuriating:

This is an outright violation of the separation of powers. It is not for federal judges, or worse yet their assistants, to rove around looking for criminal cases in which to act as law enforcement agents. The decision whether to read Miranda lies up to the executive branch.

Like Meingoff, John Yoo is neither stupid nor lazy nor unqualified to research legal issues. At the most charitable interpretation, neither wants to make even the most minimal inquiry about law and true facts when their gut reaction suits their partisan narrative. More likely, they are both deliberately dishonest people.

multiple print/radio/visual/digital sources 4/13 malreported ricin postal attack rectify

references perpetrator malidentified malreported rectify

malreporting "Paul Kevin Curtis" remove all references nonperson

replace correctreport "Everett Dutschke" alwaystrue rewrite

goodreport emphasize "martial arts instructor" eliminate malreport nonemphasize "Elvis impersonator"

federal law enforcement goodquote newreport emphasize words "discover" "investigation" "uncover" "reveal" "determine" "analysis" "dogged" "intensive"

doubleplusungood malreport avoid words "blunder" "mistaken" "innocent" "frame" "incorrect" "incompetent" "polyestered over-armed fuckwits" "put the 'special' in 'special agent'" "indifferent thugs"

media subsidiaries/partners emphasize goodquote "exclusive" "determined" "discovered" "revealed" "explain" "report to you"

doubleplusungood malreport avoid words "gullible" "credulous" "vapid" "coke-snorting upjumped typists" "amoral bootlicking sternographers" "jaded badgehumpers"

rectify correctreport "Everett Dutschke" has always been perpetrator "Paul Kevin Curtis" nonperson has never been perpetrator

INSTRUCTIONS END

On April 16, like me, you were probably paying attention to the aftermath of the Boston Marathon bombings, waiting breathlessly for intrepid journalists at CNN, the New York Post, and Reddit to implicate a series of innocent people in a manner suggesting the involvement of a doctor with a flashlight. If your attention wandered from that, you may have become preoccupied by a tremendous explosion in Texas, one not preceded by the traditional local incantation "hey, hold my beer." Then you probably looked back at Boston for a two-day chase involving stolen SUVs and grenades and gunfights and boats. It was a very American week in the media.

I know I was paying attention to all of that. Oh, and the kids were being the kids, and I was busy at work, and I was irritable.

Maybe that's why I didn't notice the release of a detailed report explaining how America has tortured people since 9/11.

Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture.
This finding, offered without reservation, is not based on any impressionistic approach to the issue. No member of the Task Force made this decision because the techniques “seemed like torture to me,” or “I would regard that as torture.” Instead, this conclusion is grounded in a thorough and detailed examination of what constitutes torture in many contexts, notably historical and legal. The Task Force examined court cases in which torture was deemed to have occurred both inside and outside the country and, tellingly, in instances in which the United States has leveled the charge of torture against other governments. The United States may not declare a nation guilty of engaging in torture and then exempt itself from being so labeled for similar if not identical conduct. The extensive research that led to the conclusion that the United States engaged in torture is contained in a detailed legal memorandum attached to this report. It should be noted that the conclusion that torture was used means it occurred in many instances and across a wide range of theaters. This judgment is not restricted to or dependent on the three cases in which detainees of the CIA were subjected to waterboarding, which had been approved at the highest levels.

But, of course, it was necessary, right?

There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable. There are, nonetheless, strong assertions by some former senior government officials that the use of those techniques did, in fact, yield valuable intelligence that resulted in operational and strategic successes. But those officials say that the evidence of such success may not be disclosed for reasons of national security.

The report is lengthy and detailed. I'm still reading it. A report condemning the government is no more worthy of automatic belief than a statement supporting the government. My evaluation of the report would be aided by critical reviews, both pro and con, both in the "mainstream media" and amongst bloggers. I'm not holding my breath for it. Consider how little it's been reported during this tumultuous week. I could try to be outraged or smug about that, but the truth is that it is entirely possible that I will be distracted by other, simpler, funnier things.

This is how most of us have decided we are willing to live.

If you're wondering whether Dzhokhar Tsarnaev was read his Miranda rights, and whether he should have been, and what the significance is if he wasn't, here are some posts to read:

Orin Kerr explains the law.

Lawscribe elaborates from a former PD's perspective and explains why Dick Wolf is full of shit.

Lindsey Graham is a jackasss.

So is John McCain.

Some background on the Obama Administration's position.

And finally, many of these people vote.

As I write this it seems pretty clear that CNN shat the bed by reporting that the FBI arrested a suspect in the Boston Marathon bombing and that there will be an appearance in federal court today.

Who knows when — or even if — an arrest and federal court appearance will happen.

But the media has been spewing inaccuracies about how it will happen, if it does. Here are a few things to keep in mind if the feds arrest someone and charge a federal crime. Federal criminal lawyers will find this oversimplified.

1. Federal prosecutions start in one of two ways: by a criminal complaint or an indictment. You get a complaint by presenting a federal magistrate judge with an affidavit explaining the facts establishing probable cause that the defendant committed the specified crime. You get an indictment by presenting a case to a grand jury. If an arrest happens soon, it will be by complaint. If it takes months, it could possibly be by indictment.

2. The feds will probably get an arrest warrant before they arrest a suspect. They will probably do that by filing an affidavit in support of a criminal complaint, as set forth above in (1). The feds could arrest someone without a warrant, but they won't unless emergency circumstances (like the suspect fleeing) arise. If they do arrest the suspect without a warrant, they'll immediately draft an affidavit in support of a criminal complaint and present it to a magistrate judge, as the defendant will be entitled to a prompt determination of probable cause after arrest. They will probably do that before the defendant's first appearance. So: if they arrest without a warrant, there will be a delay while they draft the affidavit.

3. The feds will probably try to interview the defendant. If the defendant is dumb or dumb-political and talks to them, the interview process will consume some time.

4. The defendant will be entitled to talk with an attorney before the first appearance. That will likely be a Deputy Federal Public Defender or someone from the local federal indigent defense panel. The first attorney meeting won't be extensive but will consume some time.

5. Pretrial Services — an arm of the court — will want to meet with the defendant. Pretrial Services' purpose is to gather information the court can use in making a bail determination. Here that's something of a farce; there's no way someone charged with this bombing will get bail. Nevertheless, Pretrial will go through the motions. The defendants' lawyers will tell Pretrial the defendant doesn't want to talk to them.

6. The arresting agent will have to get the office of the clerk to put the defendant on calendar before the magistrate judge on duty that day. How difficult that is depends on how busy the calendar is, which depends on who else has been arrested. Practically speaking, in a busy federal court like Boston, if the feds don't check in with the clerk by noon, it's very hard to get someone on calendar before the judge that day. Here the clerk's inclination to treat the case specially will conflict with all the complicating factors, causing a wash. Our defendant may not appear on the same day he's arrested unless he's arrested quite early. (Feds and locals everywhere love arresting people late morning Friday, which assures a weekend in custody with no bail determination. Some agencies love bringing in hordes of defendants as late as possible on Friday just, as far as I was ever able to determine, for the lulz. I'm looking at you, DEA.)

7. At his first appearance the magistrate judge will arraign the defendant. That means the judge will inform the defendant of the charges against him and his relevant constitutional rights. The judge will set a next court date. The government will ask the court to detain the defendant without bail, which the court will do. (Under the Bail Reform Act a federal defendant is entitled to bail unless no bail conditions will assure the safety of the community and the appearance of the defendant — here the judge will likely find both a flight risk and a danger to the community, no matter who the defendant is.) The defense may simply submit or ask for a delay of the bail hearing.

8. If the defendant was arrested based on a criminal complaint, and he's held without bail, he's entitled to a preliminary hearing within 14 days unless he's indicted. The feds will avoid the need for a preliminary hearing by indicting him first.

The bottom line is this: if there is an arrest, it's possible (or probable) the defendant won't make his first appearance the day of the arrest.

Here's a story I've told before: many years ago, a friend's client was being arrested in a case that had made local newspapers. The DA investigators showed up early one morning at the client's house to arrest him, cuffed him, and put him in their car. Then a reporter and photographer — tipped by someone on the prosecution side — showed up, late. They complained to the DA investigators that they had missed the perp walk — the iconic shot of the defendant being led away in handcuffs. The DA investigators obligingly got the client out of the car, walked him back into his house, and then turned around and walked him back to the car so that the photographer could get his perp-walk shot. The paper in question ran the perp-walk shot, but didn't mention that the cops had staged it. To the journalists involved, a picture of a suspect in handcuffs is news; the willingness of law enforcement to stage that picture is not news.

That too-cozy relationship between the press and law enforcement drives coverage of criminal justice in this country, which contributes to bad things — uncritical support for the "law and order" mindset, exaggeration of the risks of crime, insufficient coverage of misconduct and abuse, and journalism by spectacle. The relationship also encourages law enforcement to view journalists in an autocratic and entitled manner.

This phenomenon explains why I have mixed feelings about Fox News reporter Jana Winter's decision to risk jail to protect the source of a leak about the James Holmes prosecution in Colorado. You can read more about that story at Patterico or A Public Defender.

Jana Winter reported on a leak from someone she called a "law enforcement source," reporting that James Holmes, the apparent perpetrator of the Aurora theater massacre, had mailed a notebook filled with murder plans to a University of Colorado psychiatrist. Holmes' attorneys want to discover the source of the leak, arguing that the government violated a gag order issued by the court. Winter has been facing the stark choice between revealing a confidential source and going to jail for contempt.

It's imperative that we protect press rights vigorously under the First Amendment. Confidential sources are crucial tools in reporting important stories, informing the public, and uncovering misconduct. Many jurisdictions have laws protecting reporters who want to keep their sources confidential. That's a good thing.

But those are not the only values in play.

When journalists accept inside information from the government — from whatever source — they are making value judgments about what is news and what is not. When the journalists in my story ran a perp-walk picture, they made the judgment that a picture of someone in handcuffs is newsworthy and cops staging pictures is not. When Winter ran this story, she made the judgment that a scoop of Holmes' pre-massacre threats was newsworthy, and the willingness of law enforcement to violate a gag order was not. In making that choice, Winter and journalists like her necessarily abandon certain lines of inquiry. What's the purpose of this leak? Is it truly a leak from a rogue insider, or is it orchestrated by the prosecution? How does it help the prosecution's case or hurt the defense? Is it part of a pattern of leaks by this agency in certain types of cases? What laws did it violate? Has anyone with this agency ever been held accountable for leaks? Should they be? Was every part of the leak accurate, and how was that accuracy investigated?

When journalists make that value judgment, their choice is informed by their relationship with law enforcement — a relationship characterized by too much deference, uncritical acceptance, and interdependence. The choice is also informed by the modern media sensibility that favors sensationalism, the fast news cycle, and if-it-bleeds-it-leads thinking. Splashy stories about horrors are favored; complex stories about structural and cultural problems with criminal justice are disfavored.

Journalists will have you believe that when they print leaks from law enforcement they are keeping the public informed and promoting the free flow of information. Perhaps they are. But they are also acting as the tools of the government — whether willingly, indifferently, or ignorantly. The government leaks information — often in violation of law, often in violation of the defendant's constitutional and statutory rights — to control the narrative about the case, and to inflict unofficial punishment on suspects and defendants. This is an abuse of state power. The profession of journalism seems to have decided, collectively, that this abuse of power is not the story, or that it is, that it is outweighed by the benefits the public reaps from the abuse of power. Even though journalists claim that this decision is in service of the search for truth, sometimes it leads to participation in lies. Consider, for example, the scandal that surrounded the BALCO grand jury investigation, in which a defense attorney leaked grand jury transcripts to the media and then accused the government of doing it, seeking to have his client's case dismissed on that basis. In that case the defense, not the government, was the wrongdoer, but the media was an instrument of untruth and obstruction of justice. The journalists in that story valued protecting their sources of leaks above telling the public the truth about grave accusations of misconduct.

I'm not saying that laws shielding journalists are wrong. I'm not saying Jana Winter should go to jail. I'm saying this: maybe we should start asking journalists why they don't investigate leaks rather than accepting them. Maybe we should question the media's value judgments when it decides what misconduct is news, and what misconduct isn't. Maybe we should respond to leaks not with glee at getting inside dirt, but with demands that the government be held accountable for its conduct.

Seriously? Do I really have to write a sentencing post about meatballs?

Yes. Apparently I do.

Estelle Casimir works at the Cadet Mess Hall at West Point. Her supervisors accused her of stealing a bag of frozen meatballs.

West Point is a federal facility and crimes on the premises are treated as occurring within federal jurisdiction. The U.S. Attorney's Office charged Casimir with two misdemeanor counts in federal court. More specifically she was charged with petty larcency and misdemeanor possession of stolen property in violation of New York law under a federal statute that allows incorporation of state law under such circumstances. She has pleaded not guilty. The statutory maximum sentence she faces is two years.

You know where this is going, don't you?

Gawker: "West Point Housekeeper Facing As Much Jail Time As Steubenville Rapists For Stealing a Bag of Frozen Meatballs."

Alternet: "Housekeeper Who Stole a Bag of Frozen Meatballs Facing As Much Jail Time As Steubenville Rapist — Why do we stand by this absurd criminal justice system?"

Please note that this isn't even a case where the writers use the statutory maximum as the lede and explain in the text that the actual sentence will be far less. To the contrary, from Gawker:

Put in perspective, that's the same amount of time Trent Mays was sentenced to serve following his conviction in the Steubenville rape trial.

No. Just . . . no.

For the moment, let's leave aside that you are comparing federal adult sentences to state juvenile sentences, which are indeterminate until the juvenile is 21. More than that, though Casimir's statutory maximum sentence is two years, there is effectively zero chance she will be sentenced to anything like that. As I explained before, that's not how federal sentencing works. If Casimir is convicted, a federal judge will take into account the recommendation of the United States Sentencing Guidelines. Under the applicable sentencing guideline for larceny, Casimir will have a base offense level of 6. That could go up if the meatballs are valued at more than $5,000, but even given modern military procurement culture, that seems unlikely. So: since she has no apparent criminal record, she'll be sentenced based on an offense level of 6 (if she goes to trial) or 4 (if she pleads guilty):

OOOH COMPLEX FEAR ME, JOURNALISTS

That yields a recommendation of zero to six months in jail, in a zone of the sentencing chart where a sentence of straight probation is permissible. Unless she goes to trial and a judge thinks she has perjured herself flamboyantly, any federal practitioner will tell you that the extremely probable sentence is straight probation.

Is it good when journalists call attention to the criminal justice system? Yes. Is there room to inquire whether federal prosecution of Casimir — even if jurisdictionally permissible — is a sensible use of discretion? Absolutely. Could one construct an argument that the maximum possible sentence she faces is disproportionate if it is treated as the sentence she will face, and them compared to sentences other people have actually gotten for far worse conduct? I guess. It would be a very stupid argument, but sure.

But the "her maximum possible sentence exceeds the sentence rapists get" is sheer journalistic malpractice. It promotes ignorance about the criminal justice system. It blurs and distorts inequities rather than effectively challenging them. It adds absolutely nothing to the understanding of either Casimir's case or the Steubenville case, or criminal justice in general.

Journalists, please. You can do better.

There are three things people get wrong about the prosecution and heartbreaking suicide of Aaron Swartz.

Two of those things are about the criminal justice system. They're disturbing, but not difficult to talk about.

The third thing is about depression. It's very difficult to talk about.

But I'm going to talk about it anyway.

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Armando Saldate, Jr. had been adjudged to be a liar on four occasions and a lawbreaker on five others.

No rational person would accept his word as an adequate basis to do anything of importance — let alone as a basis to take a life.

But we do not speak of rational people today. We speak of the criminal justice system. And the criminal justice system is choked with people it has thoroughly captured — people irrationally convinced of, or indifferent to, the credibility of people like Armando Saldate, Jr.

That's because Armando Saldate, Jr. was a police officer.

The State of Arizona, based on almost nothing but Saldate's word, has been trying to kill Debra Jean Milke for nearly a quarter-century. Today the United States Court of Appeals for the Ninth Circuit said they can't.

Two men murdered Debra Milke's four-year-old son, Christopher. Armando Saldate, Jr. claimed that she confessed involvement in the crime to him. He claimed that she did so in a private interrogation he conducted without recording it — though he had been specifically instructed to record it. There was no physical evidence against Milke. The two men who killed her son did not implicate her — in fact, they denied she was involved. The case against her rested on Saldate's word. The prosecutors — the State of Arizona — accepted Saldate's word uncritically. That's what the state does. If the state begins to imagine that cops lie — if the state considers the possibility that its agents are not always reliable — well, that's too frightening for the state to contemplate.

Too often jurors, rendered dull and credulous by decades of "law and order" rhetoric and a media that cares more for ratings than accuracy, are also inclined to reward police officers with uncritical trust. Here, they might not have. Here, the facts might have moved jurors to consider the possibility that Armando Saldate, Jr. is not a man whose word should be believed at all, let alone believed enough to send a woman to her death. That's because multiple courts had found that Armando Saldate, Jr. had lied about criminal cases. Multiple courts had found that Armando Saldate, Jr. had committed misconduct violating the rights of defendants — including with respect to interrogations. Armando Saldate, Jr. had lied repeatedly under oath, had "taken liberties" with a woman he had detained in a traffic stop, had handcuffed a juvenile to a table without cause, had interrogated an incoherent suspect with a head injury in his hospital bed, had interrogated an intubated patient in intensive care.

Yes, these facts might have led jurors to doubt the word of Armando Saldate, Jr. The State of Arizona — through its prosecutors — eliminated that dangerous possibility by withholding Saldate's record from the defense in the prosecution of Debra Milke. As Judge Kozinski said in today's Ninth Circuit opinion:

This history includes a five-day suspension for taking “liberties” with a female motorist and then lying about it to his supervisors; four court cases where judges tossed out confessions or indictments because Saldate lied under oath; and four cases where judges suppressed confessions or vacated convictions because Saldate had violated the Fifth Amendment or the Fourth Amendment in the course of interrogations. And it is far from clear that this
reflects a full account of Saldate’s misconduct as a police officer. See pp. 24–25 infra. All of this information should have been disclosed to Milke and the jury, but the state remained unconstitutionally silent.

The jury convicted Milke of her son's murder, and the judge sentenced her to death.

The Ninth Circuit's opinion overturning her conviction is here. You'll find that a large chunk of it discusses the Antiterrorism and Effective Death Penalty Act of 1996, a statute that governs when federal courts may even consider a state convict's arguments that she is innocent, that her rights were violated by the state. But the opinion also addresses Armando Saldate, Jr.'s record. You'll find a chart of his misconduct on pages 45 through 53. Judge Alex Kozinski is a good, clear, direct writer, and the opinion is easy to follow, if long.

Soon Arizona will have to decide whether to retry Debra Milke. Since its now clear that Armando Saldate, Jr.'s record will be an issue, and because the conviction relies entirely on his word, they probably won't. After a quarter-century Debra Milke will leave death row.

She spent that time there because the criminal justice system — which is required to accord to people like Debra Milke a presumption of innocence — instead accords to people like Armando Saldate, Jr. a presumption of truth. The system — and at least some of its participants — give that presumption freely because Saldate and his cohorts wear a badge and a gun. They do so no matter how many times Saldate and his cohorts show they are unworthy of the presumption.

The prosecutors who put Armando Saldate, Jr. on the stand after concealing his background should be in jail. (Under more revolutionary circumstances, they should be in a shallow grave.) But that won't happen. As is usually the case, state actors who violate the rights of citizens will escape any significant consequences.

That's the system we've decided to accept.

Hat tip to Brian Tannebaum.

Edited to add: Scott's take at Simple Justice.

Second Update: Here is a statement by Arizona Attorney General Tom Horne:

“We will be appealing this decision to the U.S. Supreme Court. If the Court takes the appeal, I will argue it personally as I have done in two previous cases over the past five months. In my last case, the Supreme Court accepted my argument and overruled the Ninth Circuit’s decision unanimously.

In this case, Ms. Milke was found to have arranged the killing of her own son, a four-year-old toddler, because he was too much of a burden and interfering with her life. After dressing him up and telling him he was going to the mall to see Santa Claus, Milke was convicted of sending her young son off to be shot, execution style, in a desert wash.

This is a horrible crime. The Ninth Circuit’s decision needs to be reversed, and justice for Christopher needs to be served.”

Someone who wasn't a totalitarian or a sociopath might have seen fit to address (1) why Arizona reposes trust in the uncorroborated word of a multiple-perjuring lawbreaker in its lust to kill a woman and (2) why its agents suppressed the evidence cited by the Ninth Circuit. But Horne is a totalitarian or a sociopath, or possibly both, so he toes the law-and-order line: all you need to know is that the state says she did it.

Rick Horowitz is an unapologetic blogger and a vigorous criminal defense lawyer in California. This is an unusually mouthy combination. Rick pulls no punches blogging at Probable Cause, where he enjoys the broad protections of the First Amendment to the Constitution of the United States of America.

But the First Amendment is but a law, and any criminal defense attorney will tell you there is a wide dark gulf between the law and the application thereof.

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