LAW PUNDIT Sunday, February 29, 2004 2/29/2004 05:07:00 PM [Home]
Video Surveillance in Europe and Germany - Personality and Privacy Rights
Video Surveillance in Europe and Germany - Personality and Privacy Rights
General guidelines on video surveillance in Europe and Germany are found (in English) at the Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein in an article by Dr. Thilo Weichert entitled "Current Legal Issues on Video Surveillance", a Contribution to the SECURITY Congress 2000, Oct. 9-12, 2000 in Essen.
Data Protection in Germany
See the commentary in English by the German Federal Data Protection Commissioner about the Federal Data Protection Act, Bundesdatenschutzgesetz (BDSG).
The "Dussmann" Video Surveillance Case in Germany
This case involved the collision of the right to privacy with the right to protect private property by video surveillance. It is the first such court decision in Germany. It is in some respects a hard case, and as the saying goes, hard cases often make bad law, and this is one example of that phenomenon.
At my request, Nils Leopold - thank you - on February 24, 2004
- see Humanistische Union e.V., Bundesgeschäftsführung, Rechtsanwalt Nils Leopold, LL.M., Greifswalder Str. 4, 10405 Berlin, Tel. 030-20450256, Fax 030-20450257 -
kindly sent me a copy of the decision of the County Court for Berlin Center (Amtsgericht Berlin-Mitte), Docket Nr. 16 C 427/02 (Geschäftsnummer 16 C 427/02), issued December 18, 2003 (verkündet am 18. Dezember 2003) on "Video Surveillance of Public Space" (Videoüberwachung Privater im öffentlichen Raum). Leopold writes that the decision is not yet legally in force since an appeal to the Berlin Landesgericht (Berlin District Court) will most likely be made.
The defendant in this civil suit is the Dussmann Beteiligungsgesellschaft mbH & Co. KG.
The name of the journalist who brought the action is unknown, because pursuant to common practice in German courts, in order to protect the plaintiff's identity, his name has been made unreadable by the court in the publicly available copy of the court decision (the court merely blots out the name using black magic marker).
The "Dussmann" Case - Short Summary
The Berlin Center County Court found that the defendant's video surveillance along commercial storefront display windows in an arcade passageway would not be permitted to extend more than one meter sideways or one meter upwards from the storefront display windows to be protected. Otherwise, the surveillance was found to impinge on the privacy rights of individuals in "public space". The critical factual point in this case is that the video surveillance is located in a covered arcade passageway on property OWNED by the defendant and extending nearly to the street. Nevertheless, the court held that the fact that the property was private was not determinative since the defendant had dedicated the arcade passageway to use by the public ("durch Widmung zur Benutzung durch die Öffentlichkeit bestimmt"). The court held that the "right to privacy" in public places was more important that than the defendant's right of video surveillance.
THE ARGUMENTATION of the PLAINTIFF
The journalist who brought the complaint frequently used the defendant's privately owned but publicly accessible arcade passageway to go to and from work and felt hindered in his privacy personality rights by being subject to 24-hour video surveillance whenever he walked through the arcade (even though the videos are erased every 7 days), alleging that it was not a viable alternative that he use the other side of the street if the surveillance bothered him. He alleged a violation of his "basic right" (constitutional right) of personality as set out in Article 2(1) in conjunction with Article 1(1) of the Grundgesetz (Basic Law, German Constitution) as well as a violation of his personal rights pursuant to Section 823(1) of the BGB (Bundesgesetzbuch, German Civil Code).
The Basic Law (German Constitution) is found translated into English at iuscomp.org courtesy of the Goethe-Institut as follows:
I. Basic Rights
Article 1 [Human dignity]
(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
...
Article 2 [Personal freedoms]
(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law."
The court also refers to the general tort liability provision, § 823 I of the BGB, which is translated in a lecture by Prof. Dr. Heinrich Dörner of the University of Muenster Law School:
§ 823 I BGB provides: " A person who, intentionally or negligently, and unlawfully injures the life, body, health, liberty, ownership or any other right of another person is bound to compensate him for any damage arising therefrom."
Professor Dörner comments in that lecture on that particular paragraph by writing:
"The judges [of the Federal Supreme Court (Bundesgerichtshof)] [have] explained that the protected right of the body in § 823 I BGB is the outflow of the general right of the personality that I mentioned before as one of the fundamental individual rights. This right is embodied in Article 2 I in connection with Article 1 of the German Basic Law (Grundgesetz) and includes the right to self-determination.
THE LEGAL ARGUMENT of the DEFENDANT
The defendant answered that video surveillance was permitted by §6(b)(1) of the BDSG (Bundesdatenschutzgesetz, Federal Data Protection Act, also known as the Privacy Act) for protection of one's own property (Hausrecht) or for the protection of other justifiable interests for specifically declared purposes. The defendant argued that the video surveillance in the arcade passageway protected against shoplifting, attacks on customers, purse-snatching, graffiti-painting and damage to storefront window panes by scratching.
THE HOLDING of the BERLIN CENTER COUNTY COURT
The Berlin Center County Court held that §§ 823 and 1004 of the German Civil Code protect the individual's general right to privacy.
The Court further pointed to §6(b)(1) of the BDSG (Bundesdatenschutzgesetz, Federal Data Protection Act, also known as the Privacy Act) which provides that surveillance by optical electronic devices (video surveillance) is only permitted for protection of one's own property (Hausrecht) or for the protection of other justifiable interests for specifically declared purposes, provided, however, that the surveillance does not infringe on the protected rights of others.
The Court held that the privacy rights of the individual plaintiff were more important than the rights to surveillance by the defendant in an area which had been declared open to public access by the defendant and where surveillance was of a general around-the-clock nature.
The Court held that video surveillance was limited in such areas of public access and that this included public streets, sidewalks and arcade passageways.
The Law Pundit Opinion on this Decision
In the opinion of the Law Pundit, this is a bad decision as a matter of law and will hopefully be reversed upon appeal. The limitation of video surveillance to one meter in an arcade passageway is not only impractical but legally unsound. Someone could throw rocks through storefront picture windows from two meters away and never be caught by the camera, whose protective function would be unnecessarily hampered. What personality right is there in law that anyone has the "privacy right" to move "publicly" incognito? This sounds like a wonderland for criminals and terrorists. By this ill-designed standard, a house owner could not have video surveillance of cars parked on the street in front of his house, even if these contained potential criminals, because they would be "too far away" in a public place. Indeed, he could not even keep track by video of the public sidewalk in front of his home for possible intruders. Indeed, possible lawbreakers "casing the joint" from a "safe" distance would be immune from surveillance. This is not the kind of legal precedent that is of any use for anyone.
The notion that there is a right to "privacy" in "public places" turns the doctrine of privacy on its head. Heretofore it appeared that the right of privacy applied to "private" places. Now it is to be extended to public places and indeed, public commercial places. This means that people want their cake and eat it too - they want all the advantages of being "in public" which their private sphere does not provide for them, but they want to be "privately" protected in public. My own answer here is "no". The need for protection of life and property in commercial and public areas far overrides the individual's personality rights in commercial and public places. The Berlin Center County Court has decided here for the individual, whereas it is the right of society to peace, law and order in public places which is paramount.
It is time that these overbroad concepts of individual personality and privacy rights be stopped in their tracks. Society too has rights. The law-abiding citizen is not threatened by video surveillance. The criminal is. Obviously, some "reasonable" standard which draws a balance between individual rights on the one hand and protective rights for all on the other must be drawn. But the standard can not be the one-sided decision handed down by the Berlin Center County Court.
Permalink : Andis Kaulins : 2/29/2004 05:07:00 PM
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Video Surveillance in Europe and Germany - Personality and Privacy Rights
Video
Surveillance
Video Surveillance in Europe and Germany - Personality and Privacy Rights
General guidelines on video surveillance in Europe and Germany are found (in English) at the Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein in an article by Dr. Thilo Weichert entitled "Current Legal Issues on Video Surveillance", a Contribution to the SECURITY Congress 2000, Oct. 9-12, 2000 in Essen.
Data Protection in Germany
See the commentary in English by the German Federal Data Protection Commissioner about the Federal Data Protection Act, Bundesdatenschutzgesetz (BDSG).
The "Dussmann" Video Surveillance Case in Germany
This case involved the collision of the right to privacy with the right to protect private property by video surveillance. It is the first such court decision in Germany. It is in some respects a hard case, and as the saying goes, hard cases often make bad law, and this is one example of that phenomenon.
At my request, Nils Leopold - thank you - on February 24, 2004
- see Humanistische Union e.V., Bundesgeschäftsführung, Rechtsanwalt Nils Leopold, LL.M., Greifswalder Str. 4, 10405 Berlin, Tel. 030-20450256, Fax 030-20450257 -
kindly sent me a copy of the decision of the County Court for Berlin Center (Amtsgericht Berlin-Mitte), Docket Nr. 16 C 427/02 (Geschäftsnummer 16 C 427/02), issued December 18, 2003 (verkündet am 18. Dezember 2003) on "Video Surveillance of Public Space" (Videoüberwachung Privater im öffentlichen Raum). Leopold writes that the decision is not yet legally in force since an appeal to the Berlin Landesgericht (Berlin District Court) will most likely be made.
The defendant in this civil suit is the Dussmann Beteiligungsgesellschaft mbH & Co. KG.
The name of the journalist who brought the action is unknown, because pursuant to common practice in German courts, in order to protect the plaintiff's identity, his name has been made unreadable by the court in the publicly available copy of the court decision (the court merely blots out the name using black magic marker).
The "Dussmann" Case - Short Summary
The Berlin Center County Court found that the defendant's video surveillance along commercial storefront display windows in an arcade passageway would not be permitted to extend more than one meter sideways or one meter upwards from the storefront display windows to be protected. Otherwise, the surveillance was found to impinge on the privacy rights of individuals in "public space". The critical factual point in this case is that the video surveillance is located in a covered arcade passageway on property OWNED by the defendant and extending nearly to the street. Nevertheless, the court held that the fact that the property was private was not determinative since the defendant had dedicated the arcade passageway to use by the public ("durch Widmung zur Benutzung durch die Öffentlichkeit bestimmt"). The court held that the "right to privacy" in public places was more important that than the defendant's right of video surveillance.
THE ARGUMENTATION of the PLAINTIFF
The journalist who brought the complaint frequently used the defendant's privately owned but publicly accessible arcade passageway to go to and from work and felt hindered in his privacy personality rights by being subject to 24-hour video surveillance whenever he walked through the arcade (even though the videos are erased every 7 days), alleging that it was not a viable alternative that he use the other side of the street if the surveillance bothered him. He alleged a violation of his "basic right" (constitutional right) of personality as set out in Article 2(1) in conjunction with Article 1(1) of the Grundgesetz (Basic Law, German Constitution) as well as a violation of his personal rights pursuant to Section 823(1) of the BGB (Bundesgesetzbuch, German Civil Code).
The Basic Law (German Constitution) is found translated into English at iuscomp.org courtesy of the Goethe-Institut as follows:
I. Basic Rights
Article 1 [Human dignity]
(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
...
Article 2 [Personal freedoms]
(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law."
The court also refers to the general tort liability provision, § 823 I of the BGB, which is translated in a lecture by Prof. Dr. Heinrich Dörner of the University of Muenster Law School:
§ 823 I BGB provides: " A person who, intentionally or negligently, and unlawfully injures the life, body, health, liberty, ownership or any other right of another person is bound to compensate him for any damage arising therefrom."
Professor Dörner comments in that lecture on that particular paragraph by writing:
"The judges [of the Federal Supreme Court (Bundesgerichtshof)] [have] explained that the protected right of the body in § 823 I BGB is the outflow of the general right of the personality that I mentioned before as one of the fundamental individual rights. This right is embodied in Article 2 I in connection with Article 1 of the German Basic Law (Grundgesetz) and includes the right to self-determination.
THE LEGAL ARGUMENT of the DEFENDANT
The defendant answered that video surveillance was permitted by §6(b)(1) of the BDSG (Bundesdatenschutzgesetz, Federal Data Protection Act, also known as the Privacy Act) for protection of one's own property (Hausrecht) or for the protection of other justifiable interests for specifically declared purposes. The defendant argued that the video surveillance in the arcade passageway protected against shoplifting, attacks on customers, purse-snatching, graffiti-painting and damage to storefront window panes by scratching.
THE HOLDING of the BERLIN CENTER COUNTY COURT
The Berlin Center County Court held that §§ 823 and 1004 of the German Civil Code protect the individual's general right to privacy.
The Court further pointed to §6(b)(1) of the BDSG (Bundesdatenschutzgesetz, Federal Data Protection Act, also known as the Privacy Act) which provides that surveillance by optical electronic devices (video surveillance) is only permitted for protection of one's own property (Hausrecht) or for the protection of other justifiable interests for specifically declared purposes, provided, however, that the surveillance does not infringe on the protected rights of others.
The Court held that the privacy rights of the individual plaintiff were more important than the rights to surveillance by the defendant in an area which had been declared open to public access by the defendant and where surveillance was of a general around-the-clock nature.
The Court held that video surveillance was limited in such areas of public access and that this included public streets, sidewalks and arcade passageways.
The Law Pundit Opinion on this Decision
In the opinion of the Law Pundit, this is a bad decision as a matter of law and will hopefully be reversed upon appeal. The limitation of video surveillance to one meter in an arcade passageway is not only impractical but legally unsound. Someone could throw rocks through storefront picture windows from two meters away and never be caught by the camera, whose protective function would be unnecessarily hampered. What personality right is there in law that anyone has the "privacy right" to move "publicly" incognito? This sounds like a wonderland for criminals and terrorists. By this ill-designed standard, a house owner could not have video surveillance of cars parked on the street in front of his house, even if these contained potential criminals, because they would be "too far away" in a public place. Indeed, he could not even keep track by video of the public sidewalk in front of his home for possible intruders. Indeed, possible lawbreakers "casing the joint" from a "safe" distance would be immune from surveillance. This is not the kind of legal precedent that is of any use for anyone.
The notion that there is a right to "privacy" in "public places" turns the doctrine of privacy on its head. Heretofore it appeared that the right of privacy applied to "private" places. Now it is to be extended to public places and indeed, public commercial places. This means that people want their cake and eat it too - they want all the advantages of being "in public" which their private sphere does not provide for them, but they want to be "privately" protected in public. My own answer here is "no". The need for protection of life and property in commercial and public areas far overrides the individual's personality rights in commercial and public places. The Berlin Center County Court has decided here for the individual, whereas it is the right of society to peace, law and order in public places which is paramount.
It is time that these overbroad concepts of individual personality and privacy rights be stopped in their tracks. Society too has rights. The law-abiding citizen is not threatened by video surveillance. The criminal is. Obviously, some "reasonable" standard which draws a balance between individual rights on the one hand and protective rights for all on the other must be drawn. But the standard can not be the one-sided decision handed down by the Berlin Center County Court.
Permalink : Andis Kaulins : 2/29/2004 05:07:00 PM
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LAW PUNDIT Tuesday, February 24, 2004 2/24/2004 12:43:00 PM [Home]
Copyright Protection in the European Union
Copyright Protection in the European Union
The European Union website (snipped URL)
cites to
Council Directive 93/98/EEC of 29 October 1993 (harmonizing the term of protection of copyright and certain related rights), Official Journal L 290 , 24/11/1993 P. 0009 - 0013) (snipped URL).
This Directive provides as follows:
Article 1
Duration of authors' rights
1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public.
...
Article 3
Duration of related rights
1. The rights of performers shall expire 50 years after the date of the performance. However, if a fixation of the performance is lawfully published or lawfully communicated to the public within this period, the rights shall expire 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier.
...
Article 7
Protection vis-à-vis third countries
1. Where the country of origin of a work, within the meaning of the Berne Convention, is a third country, and the author of the work is not a Community national, the term of protection granted by the Member States shall expire on the date of expiry of the protection granted in the country of origin of the work, but may not exceed the term laid down in Article 1.
A good analysis of copyright protection in the European Union is found at the website of Arnoud Engelfriet at IusMentis (snipped URL):
That website brought to my attention the provision in the above cited Directive relating to anonymous and pseudonymous works, as follows:
Article 1
Duration of authors' rights
...
3. In the case of anonymous or pseudonymous works, the term of protection shall run for seventy years after the work is lawfully made available to the public.
Permalink : Andis Kaulins : 2/24/2004 12:43:00 PM
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Copyright Protection in the European Union
Copyright Issues in the
Internet Age
Copyright Protection in the European Union
The European Union website (snipped URL)
cites to
Council Directive 93/98/EEC of 29 October 1993 (harmonizing the term of protection of copyright and certain related rights), Official Journal L 290 , 24/11/1993 P. 0009 - 0013) (snipped URL).
This Directive provides as follows:
Article 1
Duration of authors' rights
1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public.
...
Article 3
Duration of related rights
1. The rights of performers shall expire 50 years after the date of the performance. However, if a fixation of the performance is lawfully published or lawfully communicated to the public within this period, the rights shall expire 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier.
...
Article 7
Protection vis-à-vis third countries
1. Where the country of origin of a work, within the meaning of the Berne Convention, is a third country, and the author of the work is not a Community national, the term of protection granted by the Member States shall expire on the date of expiry of the protection granted in the country of origin of the work, but may not exceed the term laid down in Article 1.
A good analysis of copyright protection in the European Union is found at the website of Arnoud Engelfriet at IusMentis (snipped URL):
That website brought to my attention the provision in the above cited Directive relating to anonymous and pseudonymous works, as follows:
Article 1
Duration of authors' rights
...
3. In the case of anonymous or pseudonymous works, the term of protection shall run for seventy years after the work is lawfully made available to the public.
Permalink : Andis Kaulins : 2/24/2004 12:43:00 PM
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LAW PUNDIT Thursday, February 19, 2004 2/19/2004 09:56:00 PM [Home]
The Prevalence of Lies and the Martha Stewart Case
The Prevalence of Lies and the Martha Stewart Case
[Update: Professors Bainbridge and Yin and TalkLeft have all posted on the allegedly damaging testimony of Stewart's "good friend" Pasternak who Stewart had told about the "tip" from her broker that Waksal was selling or trying to sell his stock. Gee, was there really any serious doubt that Stewart acted on a "tip" from her broker? If she had thought that her action was a criminal offense that could put her into prison for many years - she would hardly have told her "good friend" about it, would she? Rather, she was "showing off" about the advantages of having a good, informed broker.
The whole issue of the trial in the eyes of Law Pundit is that Stewart's actions were not insider trading under the existing laws so that the feds set her up for the obstruction of justice charge because she did not cooperate with their investigation of Waksal - where, of course, she was in fact trying to be the kind of "good friend" we all admire and respect and was being non-cooperative in order not to help the feds put Waksal in prison. Good for you, Martha.
The bad guys in this case are still unquestionably the overzealous government prosecutors who are not charging her with the crime of insider trading which she "allegedly" committed - prosecution of which would surely never lead to a conviction, but are charging her for lying to those same investigators when they were out to get her and her friend Waksal for the insider trading charges - in the case of Waksal, successfully.
People get tips from their brokers all the time - that is why they have brokers, otherwise everyone can trade directly today without the use of middle men. This is not the kind of insider trading that the insider trading law was meant to prohibit. Insider information was meant to apply to information that people had as the direct result of their position in a company - e.g. a company president buying or selling his shares due to knowledge only he could have about an impending deal that he was about to sign or not to sign, or, as in the case of Waksal, insider information regarding the government's decision on a drug. Nevertheless, it is a questionable law in many aspects, for company officers always have access to information that others outside the company do not have. Taken to its extreme, the concept of insider trading would prohibit any company executives - or even employees - from purchasing or selling company shares since someone working at IBM for example, simply has more access to information about the company than someone who does not work there and thus has an advantage in buying or selling stock.
Basically, most stocks are bought on the basis of "information" of some kind and most stocks are owned by people who have some knowledge about the company, from whatever source. Most are closer rather than farther from that source.
IN any case, if your broker finds out that others are selling their stock in a company you have stocks in, you also want your broker to tell you that fact if he has knowledge of it. You or the broker need not know why others are selling - in fact, much of the skill of making money on the market is knowing early that others are selling or buying - regardless of the reason. It is always amazing to see that good or bad news about a company is often already manifested in the stock price PRIOR to the official release of information, e.g. company annual reports. In other words, information about the economic state of a company is continuously being issued, in many ways, and in many forms.
The only reason that Martha came under the gun of the prosecutors was her failure to be cooperative with the government in getting Waksal. That is why she is on trial. It is vindictive justice. We see the same thing happening in Enron - executives being carted away in handcuffs - what is the point of this barbaric government behavior - have the authorities seen too many Westerns on TV? Handcuffs are for dangerous violent persons, not for white-collar circumstantial crimes. The whole image is terrible for the entire justice system. It is terrible for America. Land of the free? Model for the world? Hardly. Forget that myth. "Prison Justice" and the "binding of the hands of prisoners" (just look at ancient Egyptian hieroglyphs
) has been known since antiquity - there are better, more modern and humane solutions.]
Justice in law has something to do with our sense of proportionality. The punishment must fit the crime. For allegedly lying to federal investigators and thus allegedly committing the crime of "obstruction of justice", Martha Stewart is facing a maximum of 35 years in prison.
Cornell Study shows the Prevalence of Lies
A study at Cornell indicates that federal prosecutors can gleefully rub their hands at their prospects in the future and potentially fill the jails to bursting with new "criminals". An article entitled When Do We Tell the Most Lies? reports the study by Jeff Hancock of 30 Cornell University students who were first told to keep a communications diary for a week (e-mails, instant messages, face-to-face communication and phone calls). Afterwards, they were asked to identify lies found in any of these communications.
The results showed the following lies admitted to by the students in their communications:
14 cent of E-Mails contained lies, 21 percent of Instant Messages, 27 percent of Face-to-Face Interactions and a whopping 37 percent of Phone Calls.
"Hancock found that when people knew the conversation was being recorded in any way--and could be replayed or re-read at a later date--they were much less likely to lie. This has far-reaching implications...."
You can say that again. The Law Pundit is absolutely stunned that any of the figures are above 10 percent. It is amazing that there is that much lying even at a topnotch college. Just imagine then what it is like elsewhere in the real world.
Lies as a "Criminal" Offense - What Next ?
Just be careful when talking to federal investigators, where any lie can potentially put you behind bars for a LONG time.
The unfortunate lesson of the "obstruction of justice cases" is that any lawyer advising clients in any similar case has only one piece of advice to any client, guilty or not guilty. "Say NOTHING". Is this the kind of society we really want to have?
Why are the DA's not going after the Dangerous Criminals
The Stewart case is hard to understand when one sees that many people committing serious, violent dangerous crimes are
1) either not getting caught at all - it is easier for authorities to go after normal citizens rather than dangerous criminals,
or
2) the real criminals are getting off scot-free - because law enforcement is concentrating on easier to catch white-collar infractions,
or
3) the really dangerous lawbreakers are back on the streets again after serving minimal sentences - because the jails are full anyway and once people are put away behind bars, who really cares about them - i.e. the entire rehabilitation system is a farce.
Along this same line of prosecutorial witch-hunting against celebrities, no one doubts that Michael Jackson is eccentric as a great entertainer - and perhaps he is a bit whacko in addition. But he is surely not dangerous - unless we keep pushing him in the Muslim direction, in which case he may start playing Pied Piper to Mekka. Frankly, the Law Pundit just does not see Michael Jackson as a great criminal danger to society so what is the point of this entire prosecution? Do the prosecutors have nothing better to do than push questionable circus cases such as this one?
They already failed miserably on the OJ Simpson case where about the only people who had any reasonable doubt about the actual guilt of the accused were the jury. Here, in the opposite case, where very few really reasonably believe Jocko to be a dangerous sex offender, the DA's office will probably fail again. What the prosecutors seem not to understand is that they are greatly undermining public respect for the law everywhere.
A legal system which lets brutal "real" criminals run around scot-free to potentially endanger the civilian population - already armed to the teeth with weapons and building alarm systems - but instead goes after more-or-less harmless celebrities such as Jackson or Stewart as criminals for cases of "circumstantial" crimes is not looking forward to a rosy future, by any means. The amount of respect they get will be less and less, not more. For example, the Law Pundit reads in the newspapers that people are being forcibly pulled out of their cars when stopped in traffic - in part being badly injured in the process - and the cars are being stolen by lawless criminals in California. Why have these criminals not been found and put out of commission for the duration? Where are the resources of the criminal law being focused? The Law Pundit is sure that they are being focused incorrectly - but are they EVER focused correctly?
In my days in college, the authorities went after harmless marijuana plant growers in their residences and let the big fish pushing the hard drugs such as heroin go free, because it was easy to arrest and convict harmless young people and very tough to fight organized crime. What percentage of police force manpower is simply devoted to traffic control? - i.e. keeping tabs on John Q. Citizen. Generally, it is easier to give out a citation for a traffic violation rather than to bring in violent criminals. The Law Pundit realizes that traffic control is an essential part of law enforcement, but where is the proportionality to dangerous crimes and dangerous criminals?
The Law Pundit urges - again - that everyone read Herbert Packer's Limits of the Criminal Sanction. Not everything should be the realm of criminal prosecution. When we look at cases such as those of Martha Stewart or Michael Jackson, do these cases in any significant way further the classic justifications of the criminal sanction: i.e. either specific or general deterrence, retribution (i.e. punishment) or rehabilitation. No, these cases go back to the primitive justification of "vengeance" and "humiliation" - and our criminal law should be beyond that.
Permalink : Andis Kaulins : 2/19/2004 09:56:00 PM
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The Prevalence of Lies and the Martha Stewart Case
The Prevalence of Lies and the Martha Stewart Case
Nothing but Lies?
[Update: Professors Bainbridge and Yin and TalkLeft have all posted on the allegedly damaging testimony of Stewart's "good friend" Pasternak who Stewart had told about the "tip" from her broker that Waksal was selling or trying to sell his stock. Gee, was there really any serious doubt that Stewart acted on a "tip" from her broker? If she had thought that her action was a criminal offense that could put her into prison for many years - she would hardly have told her "good friend" about it, would she? Rather, she was "showing off" about the advantages of having a good, informed broker.
The whole issue of the trial in the eyes of Law Pundit is that Stewart's actions were not insider trading under the existing laws so that the feds set her up for the obstruction of justice charge because she did not cooperate with their investigation of Waksal - where, of course, she was in fact trying to be the kind of "good friend" we all admire and respect and was being non-cooperative in order not to help the feds put Waksal in prison. Good for you, Martha.
The bad guys in this case are still unquestionably the overzealous government prosecutors who are not charging her with the crime of insider trading which she "allegedly" committed - prosecution of which would surely never lead to a conviction, but are charging her for lying to those same investigators when they were out to get her and her friend Waksal for the insider trading charges - in the case of Waksal, successfully.
People get tips from their brokers all the time - that is why they have brokers, otherwise everyone can trade directly today without the use of middle men. This is not the kind of insider trading that the insider trading law was meant to prohibit. Insider information was meant to apply to information that people had as the direct result of their position in a company - e.g. a company president buying or selling his shares due to knowledge only he could have about an impending deal that he was about to sign or not to sign, or, as in the case of Waksal, insider information regarding the government's decision on a drug. Nevertheless, it is a questionable law in many aspects, for company officers always have access to information that others outside the company do not have. Taken to its extreme, the concept of insider trading would prohibit any company executives - or even employees - from purchasing or selling company shares since someone working at IBM for example, simply has more access to information about the company than someone who does not work there and thus has an advantage in buying or selling stock.
Basically, most stocks are bought on the basis of "information" of some kind and most stocks are owned by people who have some knowledge about the company, from whatever source. Most are closer rather than farther from that source.
IN any case, if your broker finds out that others are selling their stock in a company you have stocks in, you also want your broker to tell you that fact if he has knowledge of it. You or the broker need not know why others are selling - in fact, much of the skill of making money on the market is knowing early that others are selling or buying - regardless of the reason. It is always amazing to see that good or bad news about a company is often already manifested in the stock price PRIOR to the official release of information, e.g. company annual reports. In other words, information about the economic state of a company is continuously being issued, in many ways, and in many forms.
The only reason that Martha came under the gun of the prosecutors was her failure to be cooperative with the government in getting Waksal. That is why she is on trial. It is vindictive justice. We see the same thing happening in Enron - executives being carted away in handcuffs - what is the point of this barbaric government behavior - have the authorities seen too many Westerns on TV? Handcuffs are for dangerous violent persons, not for white-collar circumstantial crimes. The whole image is terrible for the entire justice system. It is terrible for America. Land of the free? Model for the world? Hardly. Forget that myth. "Prison Justice" and the "binding of the hands of prisoners" (just look at ancient Egyptian hieroglyphs
) has been known since antiquity - there are better, more modern and humane solutions.]
Justice in law has something to do with our sense of proportionality. The punishment must fit the crime. For allegedly lying to federal investigators and thus allegedly committing the crime of "obstruction of justice", Martha Stewart is facing a maximum of 35 years in prison.
Cornell Study shows the Prevalence of Lies
A study at Cornell indicates that federal prosecutors can gleefully rub their hands at their prospects in the future and potentially fill the jails to bursting with new "criminals". An article entitled When Do We Tell the Most Lies? reports the study by Jeff Hancock of 30 Cornell University students who were first told to keep a communications diary for a week (e-mails, instant messages, face-to-face communication and phone calls). Afterwards, they were asked to identify lies found in any of these communications.
The results showed the following lies admitted to by the students in their communications:
14 cent of E-Mails contained lies, 21 percent of Instant Messages, 27 percent of Face-to-Face Interactions and a whopping 37 percent of Phone Calls.
"Hancock found that when people knew the conversation was being recorded in any way--and could be replayed or re-read at a later date--they were much less likely to lie. This has far-reaching implications...."
You can say that again. The Law Pundit is absolutely stunned that any of the figures are above 10 percent. It is amazing that there is that much lying even at a topnotch college. Just imagine then what it is like elsewhere in the real world.
Lies as a "Criminal" Offense - What Next ?
Just be careful when talking to federal investigators, where any lie can potentially put you behind bars for a LONG time.
The unfortunate lesson of the "obstruction of justice cases" is that any lawyer advising clients in any similar case has only one piece of advice to any client, guilty or not guilty. "Say NOTHING". Is this the kind of society we really want to have?
Why are the DA's not going after the Dangerous Criminals
The Stewart case is hard to understand when one sees that many people committing serious, violent dangerous crimes are
1) either not getting caught at all - it is easier for authorities to go after normal citizens rather than dangerous criminals,
or
2) the real criminals are getting off scot-free - because law enforcement is concentrating on easier to catch white-collar infractions,
or
3) the really dangerous lawbreakers are back on the streets again after serving minimal sentences - because the jails are full anyway and once people are put away behind bars, who really cares about them - i.e. the entire rehabilitation system is a farce.
Along this same line of prosecutorial witch-hunting against celebrities, no one doubts that Michael Jackson is eccentric as a great entertainer - and perhaps he is a bit whacko in addition. But he is surely not dangerous - unless we keep pushing him in the Muslim direction, in which case he may start playing Pied Piper to Mekka. Frankly, the Law Pundit just does not see Michael Jackson as a great criminal danger to society so what is the point of this entire prosecution? Do the prosecutors have nothing better to do than push questionable circus cases such as this one?
They already failed miserably on the OJ Simpson case where about the only people who had any reasonable doubt about the actual guilt of the accused were the jury. Here, in the opposite case, where very few really reasonably believe Jocko to be a dangerous sex offender, the DA's office will probably fail again. What the prosecutors seem not to understand is that they are greatly undermining public respect for the law everywhere.
A legal system which lets brutal "real" criminals run around scot-free to potentially endanger the civilian population - already armed to the teeth with weapons and building alarm systems - but instead goes after more-or-less harmless celebrities such as Jackson or Stewart as criminals for cases of "circumstantial" crimes is not looking forward to a rosy future, by any means. The amount of respect they get will be less and less, not more. For example, the Law Pundit reads in the newspapers that people are being forcibly pulled out of their cars when stopped in traffic - in part being badly injured in the process - and the cars are being stolen by lawless criminals in California. Why have these criminals not been found and put out of commission for the duration? Where are the resources of the criminal law being focused? The Law Pundit is sure that they are being focused incorrectly - but are they EVER focused correctly?
In my days in college, the authorities went after harmless marijuana plant growers in their residences and let the big fish pushing the hard drugs such as heroin go free, because it was easy to arrest and convict harmless young people and very tough to fight organized crime. What percentage of police force manpower is simply devoted to traffic control? - i.e. keeping tabs on John Q. Citizen. Generally, it is easier to give out a citation for a traffic violation rather than to bring in violent criminals. The Law Pundit realizes that traffic control is an essential part of law enforcement, but where is the proportionality to dangerous crimes and dangerous criminals?
The Law Pundit urges - again - that everyone read Herbert Packer's Limits of the Criminal Sanction. Not everything should be the realm of criminal prosecution. When we look at cases such as those of Martha Stewart or Michael Jackson, do these cases in any significant way further the classic justifications of the criminal sanction: i.e. either specific or general deterrence, retribution (i.e. punishment) or rehabilitation. No, these cases go back to the primitive justification of "vengeance" and "humiliation" - and our criminal law should be beyond that.
Permalink : Andis Kaulins : 2/19/2004 09:56:00 PM
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LAW PUNDIT 2/19/2004 07:28:00 PM [Home]
Media Law Newsletter from David Price Just Out
Media Law Newsletter from David Price Just Out
David Price (Solicitors & Advocates - Specialists in Media Law) has/have just turned out the new edition of their Media Law Newsletter.
They write:
"This is our monthly newsletter containing reports and comment on media law. We aim to cover all cases in the High Court and Court of Appeal as well as decisions of the European Court of Human Rights on freedom of expression and relevant adjudications of the Press Complaints Commission and the Broadcasting Standards Commission. Occasionally we may refrain from reporting or commenting on cases involving our own clients."
Permalink : Andis Kaulins : 2/19/2004 07:28:00 PM
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Media Law Newsletter from David Price Just Out
Media Law Newsletter from David Price Just Out
Media Law Newsletter from David Price
David Price (Solicitors & Advocates - Specialists in Media Law) has/have just turned out the new edition of their Media Law Newsletter.
They write:
"This is our monthly newsletter containing reports and comment on media law. We aim to cover all cases in the High Court and Court of Appeal as well as decisions of the European Court of Human Rights on freedom of expression and relevant adjudications of the Press Complaints Commission and the Broadcasting Standards Commission. Occasionally we may refrain from reporting or commenting on cases involving our own clients."
Permalink : Andis Kaulins : 2/19/2004 07:28:00 PM
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LAW PUNDIT Saturday, February 14, 2004 2/14/2004 12:29:00 AM [Home]
Latvia - Government and Law Websites - in Latvian, English, Russian, German and/or French languages
Latvia - Government and Law Websites - in Latvian, English, Russian, German and/or French languages
Since the LawPundit speaks fluent Latvian, this post with a list of Latvian government, law and law-related websites is a natural for the LawPundit blog.
The Original List from Attorney Aldis Alliks (amended)
Attorney (Advokāts) Aldis Alliks (advocate@alliks.lv) in Latvia sent me a long list of Latvian government, legal and law-related websites similar to the list below. LawPundit has reorganized the list for English-language purposes and has added the - sometimes not well phrased - official English translations (as available at the respective online pages) - as well as the appropriate links to those pages - and has expanded the language key to include: lv = Latvian language, en = English language, fr = French language, de = German language, ru = Russian language, thus also adding some French and German language pages which Alliks does not mention, since these are few. Thank you Aldis for your excellent list which we used as the basis for this list.
Money and Banking
Bank of Latvia - Latvijas Banka lv en
Financial and Capital Market Commission - Finanšu un kapitāla tirgus komisija lv en
Institutions of Learning - Mācību iestādes ... (plus Gazettes, Journals, Databases, Law Information Resources, State Archives)
University of Latvia Faculty of Law - Latvijas Universitātes Juridiskā fakultāte lv en
Human Rights Institute, University of Latvia, Faculty of Law
- Cilvēktiesību institūts lv en
Student Self-Government - Faculty of Law - University of Latvia - Studentu pašpārvalde lv en
Riga Graduate School of Law - Rīgas Juridiskā augstskola lv en
Latvian Police Academy - Latvijas Policijas akadēmija lv
The Juridical College - Juridiskā koledža lv (for legal paraprofessionals)
Legal Information and databases - Juridiska informācija, datu bāzes ...
The Periodical - Laikraksts Latvian Official Gazette - Latvijas Vēstnesis lv
The Journal - Žurnāls Law and Justice - Likums un Tiesības lv en
Latvian Laws - LR likumi un MK noteikumi lv
NAIS - Latvian Legislation Database - Normatīvo Aktu Informatīvā Sistēma (NAIS) lv en
Translation and Terminology Centre - Tulkošanas un terminoloģijas centrs lv en
LURSOFT - Database of Companies, Credit, Newspapers, Addresses, Court Claims, Licenses LURSOFT datu bāze lv en
JURIDICA - Law Information resources - juridiskās informācijas resursi lv en
Latvian Legal Documents Database - Juridisko dokumentu datu bāze lv en ru
State Archives of Latvia - Latvijas valsts arhīvu sistēma lv en ru
The Latvian Judiciary (Courts) - Tiesas ...
Latvia Courts Portal Latvijas tiesu portāls lv en
Constitutional Court of the Republic of Latvia - LR Satversmes tiesa lv en
Riga Regional Court - Rīgas apgabaltiesa lv en
Kuldiga District Court - Kuldīgas rajona tiesa lv en
General Information and European Union
The Latvian Institute - Latvijas institūts lv en de ru
The Latvian Development Agency - Latvijas Attīstības aģentūra lv en
Latvia - European Union - Latvija - Eiropas Savienība en
Public Policy Issues - Sabiedriskās politikas portāls lv en
CIA - The World Factbook - Latvia - ASV CIP - fakti par Latviju en
Government Institutions - Valsts institūcijas ...
The Latvian Parliament - The Saiema - Latvijas Republikas Saeima lv en
The Latvian President - Latvijas Valsts prezidenta kanceleja lv en fr de ru
Bank of Latvia - Latvijas Banka lv en
Cabinet of Ministers of the Republic of Latvia - LR Ministru Kabinets lv en de ru
Ministry of Agriculture - Zemkopības ministrija lv en
Ministry of Culture - Kultūras ministrija lv en
Ministry of Defence - Aizsardzības ministrija lv en
Ministry of Economics - Ekonomikas ministrija lv en
Ministry of Education and Science - Izglītības un Zinātnes ministrija lv en
Ministry of Environment - Vides ministrija lv en
Ministry of Finance - Finanšu ministrija lv en
Ministry of Foreign Affairs - Ārlietu ministrija lv en
Ministry of Health - Veselības ministrija lv
Ministry of the Interior - Iekšlietu ministrija lv en
Ministry of Justice - Tieslietu ministrija lv en
Ministry of Regional Development and Local Governments - Reģionālās attīstības un pašvaldību lietu ministrija lv en
Ministry of Transport and Communications - Satiksmes ministrija lv en
Ministry of Welfare - Labklājības ministrija lv en
Air Space Utilization - Latvijas Gaisa satiksme lv en ru
Bankruptcy Administration - Maksātnespējas administrācija lv
Central Statistical Bureau - Centrālā statistikas pārvalde lv en
Civil Aviation Administration - Civilās aviācijas administrācija lv en
Competition Council - Konkurences padome lv en
Consumer Rights Protection Centre - Patērētāja tiesību aizsardzības centrs lv en
Corruption Prevention and Combating Bureau - Korupcijas novēršanas un apkarošanas birojs lv en ru
Culture Capital Foundation - Valsts Kultūrkapitāla fonds lv en
Data State Inspection - Datu valsts inspekcija lv en ru
Environmental State Inspectorate - Vides valsts inspekcija lv
Food and Veterinary Service - Pārtikas un veterinārais dienests lv en
Health Quality Control Commission - Medicīniskās aprūpes un darbspējas ekspertīzes kvalitātes kontroles komisija lv
Housing Agency - Mājokļu aģentūra lv en
Land Register - Vienotā datorizētā Zemesgrāmata lv
Latvian Certification Centre - Latvijas Sertifikācijas centrs lv en ru
Latvian Environment Agency - Latvijas Vides aģentūra lv en
Latvian Hydrometeorological Agency - Latvijas hidrometeoroloģijas aģentūra lv en
Latvian National Accreditation Bureau - Latvijas Nacionālais akreditācijas birojs lv en
Latvian National Human Rights Office - Valsts cilvēktiesību birojs lv en
Latvian Railway - Latvijas Dzelzceļš lv en ru
Latvian Security Agency Ltd. - Garantiju aģentūra lv en ru
Latvian State Construction Inspectorate - Valsts būvinspekcija lv en
Latvia's State Forests - Latvijas valsts meži lv en de ru
Latvian Standardization Institution - Latvijas standarts lv
Latvian Tourism Development Agency - Tūrisma attīstības valsts aģentūra lv en de ru
Lotteries and Gambling Supervisory Inspection - Izložu un azartspēļu uzraudzības komisija lv en
Marine Environment Board - Jūras vides pārvalde lv en
Medicines Pricing and Reimbursement Agency - Zāļu cenu aģentūra lv en
Motor Transport Directorate - Autotransporta direkcija lv
National Board of Fisheries - Valsts zivsaimniecības pārvalde lv en ru (older pages with English and Russian here)
National Energy Inspection - Valsts energoinspekcija lv en
Naturaliziation Board - Naturalizācijas pārvalde lv en - in Russian ru
Office of Citizenship and Migration Affairs - Pilsonības un migrācijas lietu pārvalde lv en ru
Patent Office - Patentu valde lv en
Public Utilities Commission - Sabiedrisko pakalpojumu regulēšanas komisija lv en
Purchase Control Bureau - Iepirkumu uzraudzības birojs lv
Radiation Safety Centre Radiācijas drošības centrs lv en
Register of Enterprises - Uzņēmumu reģistrs lv en ru
Riga International Airport - Rīgas starptautiskā lidosta lv en
School of Public Administration - Valsts administrācijas skola lv en
State Agency of Compulsory Health Insurance - Veselības obligātās apdrošināšanas valsts aģentūra lv
State Agency of Medicines - Valsts zāļu aģentūra lv en
State Audit Office - Valsts kontrole lv en
State Border Guards - Valsts robežsardze lv
State Civil Service Administraiton - Valsts civildienesta pārvalde lv en
State Education Inspectorate - Izglītības valsts inspekcija lv
State Employment Agency - Nodarbinātības valsts aģentūra lv en ru (English under construction on February 14, 2004)
State Firefighting and Rescue Service - Valsts ugunsdzēsības un glābšanas dienests lv en
State Forest Service - Valsts meža dienests lv en
State Geological Survey of Latvia - Valsts ģeoloģijas dienests lv
State Information Network Agency - Valsts informācijas tīkla aģentūra lv en
State Labour Inspectorate - Valsts Darba inspekcija lv en
State Land Service - Valsts zemes dienests lv en
State Pharmaceutical Inspectorate - Valsts farmācijas inspekcija lv
State Plant Protection Service - Valsts augu aizsardzības dienests lv
State Police of Latvia - Valsts policija lv en
State Real Estate Agency - Valsts nekustamā īpašuma aģentūra lv en
State Revenue Service - Valsts ieņēmumu dienests lv en
Telecommunication State Inspection - Valsts elektrosakaru inspekcija lv en
Traffic Bureau - Satiksmes birojs lv en
Treasury - Valsts kase lv en
Other Organizations - Citas organizācijas ...
Business Software Alliance lv
Latvian Chamber of Commerce and Industry - Tirdzniecības un rūpniecības kamera lv
Latvian Consumer Guide - Patērētāja interešu aizstāvības klubs lv en
Latvian Junior Chamber International lv en
Latvian Patients' Rights Office - Latvijas Pacientu tiesību birojs lv en ru
News and Information - Uzziņas ...
Business Information - Biznesa uzziņu portāls "ZL Hotline" lv en de ru
118 News and Information - Uzziņu dienests "118" lv
Interactive Zoomable Map of Latvia - UzKartes - interaktīvās kartes un izziņas lv en de ru (language change applies only to map commands)
Professional Organizations - Profesionālās organizācijas ...
Latvian Maritime Law Association - Latvijas Jūras tiesību asociācija lv en
Latvian Sworn Notary Council - Latvijas Zvērinātu notāru padome lv en
Permalink : Andis Kaulins : 2/14/2004 12:29:00 AM
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Latvia - Government and Law Websites - in Latvian, English, Russian, German and/or French languages
Latvia - Government and Law Websites - in Latvian, English, Russian, German and/or French languages
Latvian Flag
Since the LawPundit speaks fluent Latvian, this post with a list of Latvian government, law and law-related websites is a natural for the LawPundit blog.
The Original List from Attorney Aldis Alliks (amended)
Attorney (Advokāts) Aldis Alliks (advocate@alliks.lv) in Latvia sent me a long list of Latvian government, legal and law-related websites similar to the list below. LawPundit has reorganized the list for English-language purposes and has added the - sometimes not well phrased - official English translations (as available at the respective online pages) - as well as the appropriate links to those pages - and has expanded the language key to include: lv = Latvian language, en = English language, fr = French language, de = German language, ru = Russian language, thus also adding some French and German language pages which Alliks does not mention, since these are few. Thank you Aldis for your excellent list which we used as the basis for this list.
Money and Banking
Bank of Latvia - Latvijas Banka lv en
Financial and Capital Market Commission - Finanšu un kapitāla tirgus komisija lv en
Institutions of Learning - Mācību iestādes ... (plus Gazettes, Journals, Databases, Law Information Resources, State Archives)
University of Latvia Faculty of Law - Latvijas Universitātes Juridiskā fakultāte lv en
Human Rights Institute, University of Latvia, Faculty of Law
- Cilvēktiesību institūts lv en
Student Self-Government - Faculty of Law - University of Latvia - Studentu pašpārvalde lv en
Riga Graduate School of Law - Rīgas Juridiskā augstskola lv en
Latvian Police Academy - Latvijas Policijas akadēmija lv
The Juridical College - Juridiskā koledža lv (for legal paraprofessionals)
Legal Information and databases - Juridiska informācija, datu bāzes ...
The Periodical - Laikraksts Latvian Official Gazette - Latvijas Vēstnesis lv
The Journal - Žurnāls Law and Justice - Likums un Tiesības lv en
Latvian Laws - LR likumi un MK noteikumi lv
NAIS - Latvian Legislation Database - Normatīvo Aktu Informatīvā Sistēma (NAIS) lv en
Translation and Terminology Centre - Tulkošanas un terminoloģijas centrs lv en
LURSOFT - Database of Companies, Credit, Newspapers, Addresses, Court Claims, Licenses LURSOFT datu bāze lv en
JURIDICA - Law Information resources - juridiskās informācijas resursi lv en
Latvian Legal Documents Database - Juridisko dokumentu datu bāze lv en ru
State Archives of Latvia - Latvijas valsts arhīvu sistēma lv en ru
The Latvian Judiciary (Courts) - Tiesas ...
Latvia Courts Portal Latvijas tiesu portāls lv en
Constitutional Court of the Republic of Latvia - LR Satversmes tiesa lv en
Riga Regional Court - Rīgas apgabaltiesa lv en
Kuldiga District Court - Kuldīgas rajona tiesa lv en
General Information and European Union
The Latvian Institute - Latvijas institūts lv en de ru
The Latvian Development Agency - Latvijas Attīstības aģentūra lv en
Latvia - European Union - Latvija - Eiropas Savienība en
Public Policy Issues - Sabiedriskās politikas portāls lv en
CIA - The World Factbook - Latvia - ASV CIP - fakti par Latviju en
Government Institutions - Valsts institūcijas ...
The Latvian Parliament - The Saiema - Latvijas Republikas Saeima lv en
The Latvian President - Latvijas Valsts prezidenta kanceleja lv en fr de ru
Bank of Latvia - Latvijas Banka lv en
Cabinet of Ministers of the Republic of Latvia - LR Ministru Kabinets lv en de ru
Ministry of Agriculture - Zemkopības ministrija lv en
Ministry of Culture - Kultūras ministrija lv en
Ministry of Defence - Aizsardzības ministrija lv en
Ministry of Economics - Ekonomikas ministrija lv en
Ministry of Education and Science - Izglītības un Zinātnes ministrija lv en
Ministry of Environment - Vides ministrija lv en
Ministry of Finance - Finanšu ministrija lv en
Ministry of Foreign Affairs - Ārlietu ministrija lv en
Ministry of Health - Veselības ministrija lv
Ministry of the Interior - Iekšlietu ministrija lv en
Ministry of Justice - Tieslietu ministrija lv en
Ministry of Regional Development and Local Governments - Reģionālās attīstības un pašvaldību lietu ministrija lv en
Ministry of Transport and Communications - Satiksmes ministrija lv en
Ministry of Welfare - Labklājības ministrija lv en
Air Space Utilization - Latvijas Gaisa satiksme lv en ru
Bankruptcy Administration - Maksātnespējas administrācija lv
Central Statistical Bureau - Centrālā statistikas pārvalde lv en
Civil Aviation Administration - Civilās aviācijas administrācija lv en
Competition Council - Konkurences padome lv en
Consumer Rights Protection Centre - Patērētāja tiesību aizsardzības centrs lv en
Corruption Prevention and Combating Bureau - Korupcijas novēršanas un apkarošanas birojs lv en ru
Culture Capital Foundation - Valsts Kultūrkapitāla fonds lv en
Data State Inspection - Datu valsts inspekcija lv en ru
Environmental State Inspectorate - Vides valsts inspekcija lv
Food and Veterinary Service - Pārtikas un veterinārais dienests lv en
Health Quality Control Commission - Medicīniskās aprūpes un darbspējas ekspertīzes kvalitātes kontroles komisija lv
Housing Agency - Mājokļu aģentūra lv en
Land Register - Vienotā datorizētā Zemesgrāmata lv
Latvian Certification Centre - Latvijas Sertifikācijas centrs lv en ru
Latvian Environment Agency - Latvijas Vides aģentūra lv en
Latvian Hydrometeorological Agency - Latvijas hidrometeoroloģijas aģentūra lv en
Latvian National Accreditation Bureau - Latvijas Nacionālais akreditācijas birojs lv en
Latvian National Human Rights Office - Valsts cilvēktiesību birojs lv en
Latvian Railway - Latvijas Dzelzceļš lv en ru
Latvian Security Agency Ltd. - Garantiju aģentūra lv en ru
Latvian State Construction Inspectorate - Valsts būvinspekcija lv en
Latvia's State Forests - Latvijas valsts meži lv en de ru
Latvian Standardization Institution - Latvijas standarts lv
Latvian Tourism Development Agency - Tūrisma attīstības valsts aģentūra lv en de ru
Lotteries and Gambling Supervisory Inspection - Izložu un azartspēļu uzraudzības komisija lv en
Marine Environment Board - Jūras vides pārvalde lv en
Medicines Pricing and Reimbursement Agency - Zāļu cenu aģentūra lv en
Motor Transport Directorate - Autotransporta direkcija lv
National Board of Fisheries - Valsts zivsaimniecības pārvalde lv en ru (older pages with English and Russian here)
National Energy Inspection - Valsts energoinspekcija lv en
Naturaliziation Board - Naturalizācijas pārvalde lv en - in Russian ru
Office of Citizenship and Migration Affairs - Pilsonības un migrācijas lietu pārvalde lv en ru
Patent Office - Patentu valde lv en
Public Utilities Commission - Sabiedrisko pakalpojumu regulēšanas komisija lv en
Purchase Control Bureau - Iepirkumu uzraudzības birojs lv
Radiation Safety Centre Radiācijas drošības centrs lv en
Register of Enterprises - Uzņēmumu reģistrs lv en ru
Riga International Airport - Rīgas starptautiskā lidosta lv en
School of Public Administration - Valsts administrācijas skola lv en
State Agency of Compulsory Health Insurance - Veselības obligātās apdrošināšanas valsts aģentūra lv
State Agency of Medicines - Valsts zāļu aģentūra lv en
State Audit Office - Valsts kontrole lv en
State Border Guards - Valsts robežsardze lv
State Civil Service Administraiton - Valsts civildienesta pārvalde lv en
State Education Inspectorate - Izglītības valsts inspekcija lv
State Employment Agency - Nodarbinātības valsts aģentūra lv en ru (English under construction on February 14, 2004)
State Firefighting and Rescue Service - Valsts ugunsdzēsības un glābšanas dienests lv en
State Forest Service - Valsts meža dienests lv en
State Geological Survey of Latvia - Valsts ģeoloģijas dienests lv
State Information Network Agency - Valsts informācijas tīkla aģentūra lv en
State Labour Inspectorate - Valsts Darba inspekcija lv en
State Land Service - Valsts zemes dienests lv en
State Pharmaceutical Inspectorate - Valsts farmācijas inspekcija lv
State Plant Protection Service - Valsts augu aizsardzības dienests lv
State Police of Latvia - Valsts policija lv en
State Real Estate Agency - Valsts nekustamā īpašuma aģentūra lv en
State Revenue Service - Valsts ieņēmumu dienests lv en
Telecommunication State Inspection - Valsts elektrosakaru inspekcija lv en
Traffic Bureau - Satiksmes birojs lv en
Treasury - Valsts kase lv en
Other Organizations - Citas organizācijas ...
Business Software Alliance lv
Latvian Chamber of Commerce and Industry - Tirdzniecības un rūpniecības kamera lv
Latvian Consumer Guide - Patērētāja interešu aizstāvības klubs lv en
Latvian Junior Chamber International lv en
Latvian Patients' Rights Office - Latvijas Pacientu tiesību birojs lv en ru
News and Information - Uzziņas ...
Business Information - Biznesa uzziņu portāls "ZL Hotline" lv en de ru
118 News and Information - Uzziņu dienests "118" lv
Interactive Zoomable Map of Latvia - UzKartes - interaktīvās kartes un izziņas lv en de ru (language change applies only to map commands)
Professional Organizations - Profesionālās organizācijas ...
Latvian Maritime Law Association - Latvijas Jūras tiesību asociācija lv en
Latvian Sworn Notary Council - Latvijas Zvērinātu notāru padome lv en
Permalink : Andis Kaulins : 2/14/2004 12:29:00 AM
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LAW PUNDIT Sunday, February 08, 2004 2/08/2004 12:23:00 PM [Home]
The Hutton Report : Law, Politics, Truth and Freedom of the Press
The Hutton Report : Law, Politics, Truth and Freedom of the Press
What is True and What is False in Reporting by the Press ?
What is true in reports by the news media and what is false? In the battle for viewers, readers and subscribers, to what degree has unmitigated "hype" and "yellow journalism" become a much too prevalent news form?
Has the Media Lost its High Standards of Reporting ?
This writer has been increasingly put off by biased journalism (I am not alone - see One Man & His Blog) and indeed - as proven e.g. for one reporter at the New York Times - intentionally falsified reporting by the major news media. "Fair and balanced" has become as much of a myth in news reporting as "all the news that's fit to print". As noted by Dave Aeillo at CTDATA about the New York Times in discussing the Times extremist reporting on Augusta National Golf Club:
"The problem that The New York Times is experiencing is part and parcel of its editors' disingenuousness. The motto shouldn't be All the News That's Fit to Print-- it should be All the Left Wing Opinions that Are Fit To Print, or All the News That Fits Our Agenda."
For the vast population of golfers and non-golfers, Augusta is a non-issue. It is only an issue for political extremists.
BBC reporting and the War in Iraq
The New York Times is not the only "once reputable" news reporting outfit to come under recent heavy criticism. The ordinarily and heavily "mainstream-entrenched" BBC in the United Kingdom has received a legal rebuke without parallel in modern journalistic history.
The British government had reported its belief, prior to the war and based on a high source in the Iraqi army,
"[T]hat Iraqi forces could use chemical or biological weapons on the battlefield against invading forces in less than 45 minutes.... Sir Richard Dearlove, head of MI6, told the Hutton inquiry that the information contained in the dossier relating to the 45-minute claim came from a single "established and reliable" source serving as a senior officer in the Iraqi army."
The BBC reported that this claim - as repeated by the government - was "knowingly" false. This report by the BBC then marked the headlines about the war for some time. Lord Hutton found that the BBC and not the government erred.
The Hutton Report finds BBC reporting to be "Unfounded" and "Defective"
The Hutton Report is an inquiry by Lord Hutton, a law lord in the United Kingdom, regarding the propriety of BBC news reporting which contains what Lord Hutton found to be false allegations against the government on issues involving the war in Iraq, including false BBC statements about the government's alleged role in the death of weapons expert David Kelly.
As a result of this report, BBC Chairman Gavyn Davies resigned, followed by the resignation of Greg Dyke, BBC director general. As written by the BBC in "BBC chairman quits over Hutton":
"He quit after Lord Hutton said the suggestion in BBC reports that the government "sexed up" its dossier on Iraq's weapons with unreliable intelligence was 'unfounded'.
Lord Hutton also criticised 'defective' BBC editorial processes over defence correspondent Andrew Gilligan's broadcasts of the claims on the Today programme."
The Hutton Report exonerates the Government - Did Blair and Bush lie to Us? - No
Prime Minister Tony Blair is quoted as saying that:
"The allegation that I or anybody else lied to the House or deliberately misled the country by falsifying intelligence of weapons of mass destruction is itself the real lie.... I simply ask that those that have made it and repeated it over all these months now withdraw it fully, openly and clearly."
Obviously and logically, similar claims brought against President Bush challenging the information basis and subsequent motives for the war are thus equally unfounded. Moreover, we find that the reporting of the war at the New York Times and at CNN was equally "defective" and one-sided, tending to the generation of political "controversy" and "arm-chair quarterbacking" rather than concentrating on a "fair and impartial presentation" of actual events. Undesired political and personal commentaries by reporters often prevail in situations where nuts-and-bolts facts are required by the public.
Is the Hutton Report Falling on Deaf Ears ?
Numerous instances can be cited that the lessons which should have been learned from these events have still not been learned.
As written in a user's opinion posted - intentionally - by the BBC (who said they would otherwise not comment on the Hutton Report) at the BBC's own website, quoting instead what we would regard as a defiant stance of a reader:
"Democracy in this country owes more to the BBC than it does to this government - Steve Price, Overton, UK"
That of course is not the issue. The actual issue is simply that negligent and reckless FALSE reporting by news media is not permitted, regardless of their past track record.
A Misreading of the Law ?
An extremely critical review of the Hutton Report is found at "A Misreading of the Law" by Conor Gearty at the London Review of Books (we subscribe to their newsletter, but this review is not one of our favorites). Gearty writes:
Imagine a BBC that checks all its output all the time for potentially 'false accusations of fact impugning the integrity of others, including politicians', and refuses to broadcast anything that might conceivably pose such a risk. And there is no reason to stop at the BBC: Lord Hutton's supposed rule must apply generally. So we must also imagine the kind of 'democratic society' we would have if all television, radio and print news organisations followed with Huttonesque rigour what Lord Hutton says is the law. There would be calm, certainly, and quiet reportage of ministerial achievement, but there would not be democracy as we know it.
The Right to Impugn Integrity based on Sloppy Research ?
The Law Pundit disagrees completely with Gearty's opinion. In our view of the law, NO MEDIA has the right to falsely impugn the integrity of others - and if they do not check their work conscientiously and still publish such things falsely, then they should be liable. No one is denying news media the right to engage in CRITICAL reporting - but the Hutton Report is denying FALSE reporting resulting from improperly researched reporting (recall, RESEARCH is the specialty of the Law Pundit.) If your research does not support what you write to be a fact - then do not impugn another's integrity. That seems to be a clear and laudable legal standard. It surely cuts a lot of the irrelevant ad hominem out of news reporting.
Someone who has his integrity falsely impugned in print has a difficult time reestablishing his or her reputation as the damage is normally done and everyone is on to different things and new events. See here for a Guardian article by David Clark for proof that not even the Hutton Report is stopping what is clearly politically-motivated reporting. Slashes on the integrity and intelligence of other persons continue on unabated. That article is not "reporting" - it is one man's vituperative opinion. It is a lambasting of "persons", rather than a fair and impartial reporting of facts and issues. Should that kind of lambasting be permitted? No, I think not, but it is common at news media such as the Guardian.
The prospect of bringing a libel suit against news media in order to obtain a printed retraction has almost no chilling effect on the publication of false and maligning opinions. The media is powerful and individuals less so. Here at least the government was battling the media, i.e. two large powerful forces were pitted one against the other. But imagine the BBC doing the same thing to John Q. Citizen that it tried to do to Tony Blair and his government. John Q. Citizen's reputation would be irrevocably destroyed, without any chance of resurrection - even Blair is still having trouble, because the news media has so firmly implanted falsehoods in the brains of the public. Indeed, one must ask WHY the news media would even attempt to impugn someone's integrity if the complete well-researched facts did not support it? The only answer can be that the media is pushing THEIR own political agenda. They are trying to profit at another's expense and to gain an advantage for their causes against the causes advanced by others.
Hence, contrary to Gearty, we say YES to "democracy" and to "freedom of speech and the press".
But we say NO to any press right to impugn the integrity of others through sloppy reporting. That is not what we regard to be a foundation of democracy. Reputations are easily destroyed by the press - but this is not a constitutional right.
The Major Findings of the Hutton Report
The major findings of the Hutton Report in abbreviated form are found here at the Guardian and here at the BBC.
The Full Hutton Report
The full Hutton Report is available
1) as a book at online booksellers as Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly CMG by Lord Hutton (published by Stationery, 740 pages, £70.00), and
2) online at Hutton Inquiry at Report and Rulings
Lord Hutton's Main Rulings in the Report
Lord Hutton's rulings in the "Hutton Report" find false reporting by the BBC with respect to matters involving the war in Iraq:
The Questions
The major questions raised were, in the words of Lord Hutton:
"(1) Was there a failure by the BBC to exercise proper editorial control over Mr Gilligan's broadcasts on the Today programme on 29 May?
(2) Was the BBC management at fault in failing to investigate properly and adequately the Government's complaints that the report was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier?
(3) Was there a failure by BBC management to inform the Governors of the BBC of the extent of editorial concerns about Mr Gilligan's broadcasts in relation to the 45 minutes claim?
(4) Whilst the Governors were under a duty to protect the independence of the BBC from Government interference, were the Governors at fault in failing to investigate properly and adequately the Government's complaints about the report on the Today programme in relation to the 45 minutes claim, and were the Governors too ready to accept the opinion of BBC management that the broadcasts were proper ones for the Today programme to make."
The Answers
The answers to these questions by Lord Hutton - after interviewing 74 witnesses in 25 days - are:
"(1) The allegations reported by Mr Gilligan on the BBC Today programme on 29 May 2003 that the Government probably knew that the 45 minutes claim was wrong or questionable before the dossier was published and that it was not inserted in the first draft of the dossier because it only came from one source and the intelligence agencies did not really believe it was necessarily true, were unfounded.
(2) The communication by the media of information (including information obtained by investigative reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information is subject to the qualification (which itself exists for the benefit of a democratic society) that false accusations of fact impugning the integrity of others, including politicians, should not be made by the media. Where a reporter is intending to broadcast or publish information impugning the integrity of others the management of his broadcasting company or newspaper should ensure that a system is in place whereby his editor or editors give careful consideration to the wording of the report and to whether it is right in all the circumstances to broadcast or publish it. The allegations that Mr Gilligan was intending to broadcast in respect of the Government and the preparation of the dossier were very grave allegations in relation to a subject of great importance and I consider that the editorial system which the BBC permitted was defective in that Mr Gilligan was allowed to broadcast his report at 6.07am without editors having seen a script of what he was going to say and having considered whether it should be approved.
(3) The BBC management was at fault in the following respects in failing to investigate properly the Government's complaints that the report in the 6.07am broadcast was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier. The BBC management failed, before Mr Sambrook wrote his letter of 27 June 2003 to Mr Campbell, to make an examination of Mr Gilligan's notes on his personal organiser of his meeting with Dr Kelly to see if they supported the allegations which he had reported in his broadcast at 6.07am. When the BBC management did look at Mr Gilligan's notes after 27 June it failed to appreciate that the notes did not fully support the most serious of the allegations which he had reported in the 6.07am broadcast, and it therefore failed to draw the attention of the Governors to the lack of support in the notes for the most serious of the allegations.
(4) The e-mail sent by Mr Kevin Marsh, the editor of the Today programme on 27 June 2003 to Mr Stephen Mitchell, the Head of Radio News, which was critical of Mr Gilligan's method of reporting, and which referred to Mr Gilligan's "loose use of language and lack of judgment in some of his phraseology" and referred also to "the loose and in some ways distant relationship he's been allowed to have with Today," was clearly relevant to the complaints which the Government were making about his broadcasts on 29 May, and the lack of knowledge on the part of Mr Sambrook, the Director of News, and the Governors of this critical e-mail shows a defect in the operation of the BBC's management system for the consideration of complaints in respect of broadcasts.
(5) The Governors were right to take the view that it was their duty to protect the independence of the BBC against attacks by the Government and Mr Campbell's complaints were being expressed in exceptionally strong terms which raised very considerably the temperature of the dispute between the Government and the BBC. However Mr Campbell's allegation that large parts of the BBC had an anti-war agenda in his evidence to the FAC was only one part of his evidence. The Government's concern about Mr Gilligan's broadcasts on 29 May was a separate issue about which specific complaints had been made by the Government. Therefore the Governors should have recognised more fully than they did that their duty to protect the independence of the BBC was not incompatible with giving proper consideration to whether there was validity in the Government's complaints, no matter how strongly worded by Mr Campbell, that the allegations against its integrity reported in Mr Gilligan's broadcasts were unfounded and the Governors failed to give this issue proper consideration. The view taken by the Governors, as explained in evidence by Mr Gavyn Davies, the Chairman of the Board of Governors, that they had to rely on the BBC management to investigate and assess whether Mr Gilligan's source was reliable and credible and that it was not for them as Governors to investigate whether the allegations reported were themselves accurate, is a view which is understandable. However this was not the correct view for the Governors to take because the Government had stated to the BBC in clear terms, as had Mr Campbell to the FAC, that the report that the Government probably knew that the 45 minutes claim was wrong was untruthful, and this denial was made with the authority of the Prime Minister and the Chairman of the JIC. In those circumstances, rather than relying on the assurances of BBC management, I consider that the Governors themselves should have made more detailed investigations into the extent to which Mr Gilligan's notes supported his report. If they had done this they would probably have discovered that the notes did not support the allegation that the Government knew that the 45 minutes claim was probably wrong, and the Governors should then have questioned whether it was right for the BBC to maintain that it was in the public interest to broadcast the allegation in Mr Gilligan's report and to rely on Mr Gilligan's assurances that his report was accurate. Therefore in the very unusual and specific circumstances relating to Mr Gilligan's broadcasts, the Governors are to be criticised for themselves failing to make more detailed investigations into whether this allegation reported by Mr Gilligan was properly supported by his notes and for failing to give proper and adequate consideration to whether the BBC should publicly acknowledge that this very grave allegation should not have been broadcast." [emphasis supplied]
Two Additional Issues regarding Dr. Kelly
Lord Hutton also ruled on two additional issues:
"First, did the Government behave in a way which was dishonourable or underhand or duplicitous in revealing Dr Kelly's name to the media, thereby subjecting him to the pressure and stress which were bound to arise from being placed in the media spotlight?
Secondly, if the Government did not behave in a way which was dishonourable or underhand or duplicitous in revealing Dr Kelly's name to the media, did the Government fail to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself?"
Lord Hutton writes:
"Having concluded that the Government did not behave in a dishonourable or underhand or duplicitous way in revealing Dr Kelly's name to the media I then consider the second issue, whether the Government failed to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself. In paragraph 430 I state that the evidence has satisfied me that officials in the MoD did give some consideration to Dr Kelly's welfare and did take some steps to help him, and I set out the steps which were taken by a number of officials."
Blogs Referring to the Hutton Report
Blogs that have referred to the Hutton Report are:
Jay Currie
Currie has numerous postings on the Hutton report and a link to Let It Bleed.
KeepingLegal
BeSpacific
KWSnet Weblog
"There was criticism, condemnation even. But almost all was aimed at the BBC.
For the Government, there was just the tiniest of slaps on the wrist for a few underlings at the Ministry of Defence.
For all the legal-ese, the precise and impartial weighing up of a mountain of evidence given by 74 witnesses over 25 days, it was clear as he presented his findings that Lord Hutton, the former Lord Chief Justice of Northern Ireland and a respected law lord who retired two weeks ago, is much more at home in the world of civil servants and politicians than that of journalists."
BaraksBlog writes "Now hold on a minute!" in commenting on Clark's article in the Guardian.
The content of this link at the Guardian, as linked from FullSpeed is, well... you decide.
Ofcom Watch speculates whether the BBC is ripe for government regulation.
Hutton's findings will strengthen BBC critics who say the broadcaster should fall under the oversight of media regulator Ofcom. Conservative leader Michael Howard said the case for outside regulation of the BBC "has never been stronger".
Lincoln Plawg (PLawG=Politics and Law Blog) points to a link which may be the definitive discussion of investigative reporting in this context for news media and reporters, an article by Jeffrey A. Dvorkin, Ombudsman, National Public Radio (NPR), entitled "Sentence First. Verdict Afterwards?"
Permalink : Andis Kaulins : 2/08/2004 12:23:00 PM
: : bookmark/share
The Hutton Report : Law, Politics, Truth and Freedom of the Press
The Hutton Report : Law, Politics, Truth and Freedom of the Press
What is True and What is False in Reporting by the Press ?
What is true in reports by the news media and what is false? In the battle for viewers, readers and subscribers, to what degree has unmitigated "hype" and "yellow journalism" become a much too prevalent news form?
What is Really True in the News ?
Has the Media Lost its High Standards of Reporting ?
This writer has been increasingly put off by biased journalism (I am not alone - see One Man & His Blog) and indeed - as proven e.g. for one reporter at the New York Times - intentionally falsified reporting by the major news media. "Fair and balanced" has become as much of a myth in news reporting as "all the news that's fit to print". As noted by Dave Aeillo at CTDATA about the New York Times in discussing the Times extremist reporting on Augusta National Golf Club:
"The problem that The New York Times is experiencing is part and parcel of its editors' disingenuousness. The motto shouldn't be All the News That's Fit to Print-- it should be All the Left Wing Opinions that Are Fit To Print, or All the News That Fits Our Agenda."
For the vast population of golfers and non-golfers, Augusta is a non-issue. It is only an issue for political extremists.
BBC reporting and the War in Iraq
The New York Times is not the only "once reputable" news reporting outfit to come under recent heavy criticism. The ordinarily and heavily "mainstream-entrenched" BBC in the United Kingdom has received a legal rebuke without parallel in modern journalistic history.
The British government had reported its belief, prior to the war and based on a high source in the Iraqi army,
"[T]hat Iraqi forces could use chemical or biological weapons on the battlefield against invading forces in less than 45 minutes.... Sir Richard Dearlove, head of MI6, told the Hutton inquiry that the information contained in the dossier relating to the 45-minute claim came from a single "established and reliable" source serving as a senior officer in the Iraqi army."
The BBC reported that this claim - as repeated by the government - was "knowingly" false. This report by the BBC then marked the headlines about the war for some time. Lord Hutton found that the BBC and not the government erred.
The Hutton Report finds BBC reporting to be "Unfounded" and "Defective"
The Hutton Report is an inquiry by Lord Hutton, a law lord in the United Kingdom, regarding the propriety of BBC news reporting which contains what Lord Hutton found to be false allegations against the government on issues involving the war in Iraq, including false BBC statements about the government's alleged role in the death of weapons expert David Kelly.
As a result of this report, BBC Chairman Gavyn Davies resigned, followed by the resignation of Greg Dyke, BBC director general. As written by the BBC in "BBC chairman quits over Hutton":
"He quit after Lord Hutton said the suggestion in BBC reports that the government "sexed up" its dossier on Iraq's weapons with unreliable intelligence was 'unfounded'.
Lord Hutton also criticised 'defective' BBC editorial processes over defence correspondent Andrew Gilligan's broadcasts of the claims on the Today programme."
The Hutton Report exonerates the Government - Did Blair and Bush lie to Us? - No
Prime Minister Tony Blair is quoted as saying that:
"The allegation that I or anybody else lied to the House or deliberately misled the country by falsifying intelligence of weapons of mass destruction is itself the real lie.... I simply ask that those that have made it and repeated it over all these months now withdraw it fully, openly and clearly."
Obviously and logically, similar claims brought against President Bush challenging the information basis and subsequent motives for the war are thus equally unfounded. Moreover, we find that the reporting of the war at the New York Times and at CNN was equally "defective" and one-sided, tending to the generation of political "controversy" and "arm-chair quarterbacking" rather than concentrating on a "fair and impartial presentation" of actual events. Undesired political and personal commentaries by reporters often prevail in situations where nuts-and-bolts facts are required by the public.
Is the Hutton Report Falling on Deaf Ears ?
Numerous instances can be cited that the lessons which should have been learned from these events have still not been learned.
As written in a user's opinion posted - intentionally - by the BBC (who said they would otherwise not comment on the Hutton Report) at the BBC's own website, quoting instead what we would regard as a defiant stance of a reader:
"Democracy in this country owes more to the BBC than it does to this government - Steve Price, Overton, UK"
That of course is not the issue. The actual issue is simply that negligent and reckless FALSE reporting by news media is not permitted, regardless of their past track record.
A Misreading of the Law ?
An extremely critical review of the Hutton Report is found at "A Misreading of the Law" by Conor Gearty at the London Review of Books (we subscribe to their newsletter, but this review is not one of our favorites). Gearty writes:
Imagine a BBC that checks all its output all the time for potentially 'false accusations of fact impugning the integrity of others, including politicians', and refuses to broadcast anything that might conceivably pose such a risk. And there is no reason to stop at the BBC: Lord Hutton's supposed rule must apply generally. So we must also imagine the kind of 'democratic society' we would have if all television, radio and print news organisations followed with Huttonesque rigour what Lord Hutton says is the law. There would be calm, certainly, and quiet reportage of ministerial achievement, but there would not be democracy as we know it.
The Right to Impugn Integrity based on Sloppy Research ?
The Law Pundit disagrees completely with Gearty's opinion. In our view of the law, NO MEDIA has the right to falsely impugn the integrity of others - and if they do not check their work conscientiously and still publish such things falsely, then they should be liable. No one is denying news media the right to engage in CRITICAL reporting - but the Hutton Report is denying FALSE reporting resulting from improperly researched reporting (recall, RESEARCH is the specialty of the Law Pundit.) If your research does not support what you write to be a fact - then do not impugn another's integrity. That seems to be a clear and laudable legal standard. It surely cuts a lot of the irrelevant ad hominem out of news reporting.
Someone who has his integrity falsely impugned in print has a difficult time reestablishing his or her reputation as the damage is normally done and everyone is on to different things and new events. See here for a Guardian article by David Clark for proof that not even the Hutton Report is stopping what is clearly politically-motivated reporting. Slashes on the integrity and intelligence of other persons continue on unabated. That article is not "reporting" - it is one man's vituperative opinion. It is a lambasting of "persons", rather than a fair and impartial reporting of facts and issues. Should that kind of lambasting be permitted? No, I think not, but it is common at news media such as the Guardian.
The prospect of bringing a libel suit against news media in order to obtain a printed retraction has almost no chilling effect on the publication of false and maligning opinions. The media is powerful and individuals less so. Here at least the government was battling the media, i.e. two large powerful forces were pitted one against the other. But imagine the BBC doing the same thing to John Q. Citizen that it tried to do to Tony Blair and his government. John Q. Citizen's reputation would be irrevocably destroyed, without any chance of resurrection - even Blair is still having trouble, because the news media has so firmly implanted falsehoods in the brains of the public. Indeed, one must ask WHY the news media would even attempt to impugn someone's integrity if the complete well-researched facts did not support it? The only answer can be that the media is pushing THEIR own political agenda. They are trying to profit at another's expense and to gain an advantage for their causes against the causes advanced by others.
Hence, contrary to Gearty, we say YES to "democracy" and to "freedom of speech and the press".
But we say NO to any press right to impugn the integrity of others through sloppy reporting. That is not what we regard to be a foundation of democracy. Reputations are easily destroyed by the press - but this is not a constitutional right.
The Major Findings of the Hutton Report
The major findings of the Hutton Report in abbreviated form are found here at the Guardian and here at the BBC.
The Full Hutton Report
The full Hutton Report is available
1) as a book at online booksellers as Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly CMG by Lord Hutton (published by Stationery, 740 pages, £70.00), and
2) online at Hutton Inquiry at Report and Rulings
Lord Hutton's Main Rulings in the Report
Lord Hutton's rulings in the "Hutton Report" find false reporting by the BBC with respect to matters involving the war in Iraq:
The Questions
The major questions raised were, in the words of Lord Hutton:
"(1) Was there a failure by the BBC to exercise proper editorial control over Mr Gilligan's broadcasts on the Today programme on 29 May?
(2) Was the BBC management at fault in failing to investigate properly and adequately the Government's complaints that the report was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier?
(3) Was there a failure by BBC management to inform the Governors of the BBC of the extent of editorial concerns about Mr Gilligan's broadcasts in relation to the 45 minutes claim?
(4) Whilst the Governors were under a duty to protect the independence of the BBC from Government interference, were the Governors at fault in failing to investigate properly and adequately the Government's complaints about the report on the Today programme in relation to the 45 minutes claim, and were the Governors too ready to accept the opinion of BBC management that the broadcasts were proper ones for the Today programme to make."
The Answers
The answers to these questions by Lord Hutton - after interviewing 74 witnesses in 25 days - are:
"(1) The allegations reported by Mr Gilligan on the BBC Today programme on 29 May 2003 that the Government probably knew that the 45 minutes claim was wrong or questionable before the dossier was published and that it was not inserted in the first draft of the dossier because it only came from one source and the intelligence agencies did not really believe it was necessarily true, were unfounded.
(2) The communication by the media of information (including information obtained by investigative reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information is subject to the qualification (which itself exists for the benefit of a democratic society) that false accusations of fact impugning the integrity of others, including politicians, should not be made by the media. Where a reporter is intending to broadcast or publish information impugning the integrity of others the management of his broadcasting company or newspaper should ensure that a system is in place whereby his editor or editors give careful consideration to the wording of the report and to whether it is right in all the circumstances to broadcast or publish it. The allegations that Mr Gilligan was intending to broadcast in respect of the Government and the preparation of the dossier were very grave allegations in relation to a subject of great importance and I consider that the editorial system which the BBC permitted was defective in that Mr Gilligan was allowed to broadcast his report at 6.07am without editors having seen a script of what he was going to say and having considered whether it should be approved.
(3) The BBC management was at fault in the following respects in failing to investigate properly the Government's complaints that the report in the 6.07am broadcast was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier. The BBC management failed, before Mr Sambrook wrote his letter of 27 June 2003 to Mr Campbell, to make an examination of Mr Gilligan's notes on his personal organiser of his meeting with Dr Kelly to see if they supported the allegations which he had reported in his broadcast at 6.07am. When the BBC management did look at Mr Gilligan's notes after 27 June it failed to appreciate that the notes did not fully support the most serious of the allegations which he had reported in the 6.07am broadcast, and it therefore failed to draw the attention of the Governors to the lack of support in the notes for the most serious of the allegations.
(4) The e-mail sent by Mr Kevin Marsh, the editor of the Today programme on 27 June 2003 to Mr Stephen Mitchell, the Head of Radio News, which was critical of Mr Gilligan's method of reporting, and which referred to Mr Gilligan's "loose use of language and lack of judgment in some of his phraseology" and referred also to "the loose and in some ways distant relationship he's been allowed to have with Today," was clearly relevant to the complaints which the Government were making about his broadcasts on 29 May, and the lack of knowledge on the part of Mr Sambrook, the Director of News, and the Governors of this critical e-mail shows a defect in the operation of the BBC's management system for the consideration of complaints in respect of broadcasts.
(5) The Governors were right to take the view that it was their duty to protect the independence of the BBC against attacks by the Government and Mr Campbell's complaints were being expressed in exceptionally strong terms which raised very considerably the temperature of the dispute between the Government and the BBC. However Mr Campbell's allegation that large parts of the BBC had an anti-war agenda in his evidence to the FAC was only one part of his evidence. The Government's concern about Mr Gilligan's broadcasts on 29 May was a separate issue about which specific complaints had been made by the Government. Therefore the Governors should have recognised more fully than they did that their duty to protect the independence of the BBC was not incompatible with giving proper consideration to whether there was validity in the Government's complaints, no matter how strongly worded by Mr Campbell, that the allegations against its integrity reported in Mr Gilligan's broadcasts were unfounded and the Governors failed to give this issue proper consideration. The view taken by the Governors, as explained in evidence by Mr Gavyn Davies, the Chairman of the Board of Governors, that they had to rely on the BBC management to investigate and assess whether Mr Gilligan's source was reliable and credible and that it was not for them as Governors to investigate whether the allegations reported were themselves accurate, is a view which is understandable. However this was not the correct view for the Governors to take because the Government had stated to the BBC in clear terms, as had Mr Campbell to the FAC, that the report that the Government probably knew that the 45 minutes claim was wrong was untruthful, and this denial was made with the authority of the Prime Minister and the Chairman of the JIC. In those circumstances, rather than relying on the assurances of BBC management, I consider that the Governors themselves should have made more detailed investigations into the extent to which Mr Gilligan's notes supported his report. If they had done this they would probably have discovered that the notes did not support the allegation that the Government knew that the 45 minutes claim was probably wrong, and the Governors should then have questioned whether it was right for the BBC to maintain that it was in the public interest to broadcast the allegation in Mr Gilligan's report and to rely on Mr Gilligan's assurances that his report was accurate. Therefore in the very unusual and specific circumstances relating to Mr Gilligan's broadcasts, the Governors are to be criticised for themselves failing to make more detailed investigations into whether this allegation reported by Mr Gilligan was properly supported by his notes and for failing to give proper and adequate consideration to whether the BBC should publicly acknowledge that this very grave allegation should not have been broadcast." [emphasis supplied]
Two Additional Issues regarding Dr. Kelly
Lord Hutton also ruled on two additional issues:
"First, did the Government behave in a way which was dishonourable or underhand or duplicitous in revealing Dr Kelly's name to the media, thereby subjecting him to the pressure and stress which were bound to arise from being placed in the media spotlight?
Secondly, if the Government did not behave in a way which was dishonourable or underhand or duplicitous in revealing Dr Kelly's name to the media, did the Government fail to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself?"
Lord Hutton writes:
"Having concluded that the Government did not behave in a dishonourable or underhand or duplicitous way in revealing Dr Kelly's name to the media I then consider the second issue, whether the Government failed to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself. In paragraph 430 I state that the evidence has satisfied me that officials in the MoD did give some consideration to Dr Kelly's welfare and did take some steps to help him, and I set out the steps which were taken by a number of officials."
Blogs Referring to the Hutton Report
Blogs that have referred to the Hutton Report are:
Jay Currie
Currie has numerous postings on the Hutton report and a link to Let It Bleed.
KeepingLegal
BeSpacific
KWSnet Weblog
"There was criticism, condemnation even. But almost all was aimed at the BBC.
For the Government, there was just the tiniest of slaps on the wrist for a few underlings at the Ministry of Defence.
For all the legal-ese, the precise and impartial weighing up of a mountain of evidence given by 74 witnesses over 25 days, it was clear as he presented his findings that Lord Hutton, the former Lord Chief Justice of Northern Ireland and a respected law lord who retired two weeks ago, is much more at home in the world of civil servants and politicians than that of journalists."
BaraksBlog writes "Now hold on a minute!" in commenting on Clark's article in the Guardian.
The content of this link at the Guardian, as linked from FullSpeed is, well... you decide.
Ofcom Watch speculates whether the BBC is ripe for government regulation.
Hutton's findings will strengthen BBC critics who say the broadcaster should fall under the oversight of media regulator Ofcom. Conservative leader Michael Howard said the case for outside regulation of the BBC "has never been stronger".
Lincoln Plawg (PLawG=Politics and Law Blog) points to a link which may be the definitive discussion of investigative reporting in this context for news media and reporters, an article by Jeffrey A. Dvorkin, Ombudsman, National Public Radio (NPR), entitled "Sentence First. Verdict Afterwards?"
Permalink : Andis Kaulins : 2/08/2004 12:23:00 PM
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LAW PUNDIT Monday, February 02, 2004 2/02/2004 04:45:00 PM [Home]
The Martha Stewart Case and the Erroneous Standard in Brogan
The Martha Stewart Case and the Erroneous Standard in Brogan
Professors Yin and Bainbridge have been keeping us up regularly on legal issues involved in the Martha Stewart trial and Bainbridge particularly has been aghast at the government's prosecution of this case, writing:
"[I]t is unfair to let the government fling allegations, which they end up deciding not to charge somebody with, and then let the government prosecute that person for having denied the allegations the government decided it couldn't prove. Why isn't that just whacked?
As written by the Associated Press:
The government says [Martha Stewart] was tipped that ImClone founder Sam Waksal was trying to sell his shares [of ImClone]. Waksal has admitted getting advance word of the government decision [that it would not review ImClone's application for its colon cancer drug, Erbitux] and pleaded guilty to insider trading. But Stewart was never accused by the government of personally knowing about the government report.[THAT would be insider trading.]
As Bainbridge noted above, none of the charges brought against Stewart relate to insider trading. The actual charges against Martha Stewart (five of the nine counts apply to her) are:
(1) conspiracy to obstruct justice, make false statements, and commit perjury in violation of 18 U.S.C. § 371 (Count 1); (2) making false statements in violation of 18 U.S.C. § 1001 (Counts 3 and 4); (3) obstruction of justice in violation of 18 U.S.C. § 1505 (Count 8); and securities fraud (Count 9).
Jack Kemp in "Congress should rein in rogue federal prosecutors" writes:
"Using a little-known federal statute (Title 18, Section 1001 of the U.S. Code), federal prosecutors are threatening to send Martha Stewart to jail for [allegedly] lying to government officials and for publicly declaring her innocence of insider trading even though the government refuses to charge her with the actual crime of insider trading. That's outrageous....
...Section 1001 makes it a crime to 'knowingly and willfully make any materially false, fictitious or fraudulent statement or representation in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States,' even if you are not under oath.[emphasis added by Law Pundit] The sweep of Section 1001 and the unchecked discretion it gives to federal prosecutors are awesome....
The practice of intimidating and harassing individuals into violating Section 1001 should be stopped. The only way a person should be charged under Section 1001 is if he or she is also charged with the underlying crime that triggered the original investigation during which the alleged false statement or representation was made."
Furthermore, one of the prosecution charges leveled against Martha Stewart is that her public assertion of innocence of "insider trading" - a charge which has not even been formally brought - constitutes securities fraud because that assertion – according to the government prosecutors – was made with the intention of keeping the price of stock shares in her company from falling, as written here:
"But the big concern is the securities fraud charge ... the charge hinges on the claim that Stewart lied to the press and the public in an attempt to prop up the value of her stock, Martha Stewart Living Omnimedia (MSLO).”
Just imagine what possibilities such a novel charge opens for US government prosecutors in going after corporate executives, whose ANY statement could fall victim to a similar charge. Beware my friends, this is tyranny. The flagrant abuse of power by government prosecutors in this case is a very black eye for democracy, but the problem was already clearly recognized by some of the judges in the Brogan case, e.g. in the Ginsberg opinion concurring in judgment as well as in the Stevens dissent - Stevens being the ONLY justice who would have decided Brogan "correctly" - so our opinion - by maintaining the "exculpatory no" standard as it had been applied previously by the courts.
Does the law anywhere help us against this odious, undemocratic, freedom-threatening and tyrannical legislative provision?
Maybe, but it is a longshot, and a considerable stretch of a Constitutional provision.
Ex Post Facto Laws are Prohibited by the Constitution
Let us ask a simple question to which everyone knows the answer. When Martha Stewart publicly asserted her innocence of the publicly rumored charge of insider trading, did she know that her "assertion" - and not the possible "insider trading" charge - might put her in prison? Of course not. No one knew this. It is a novel charge.
As written by Solomon L. Wisenberg of Ross, Dixon & Bell, L.L.P. for FindLaw:
"Did you know that it is a crime to tell a lie to the federal government? Even if your lie is oral and not under oath? Even if you have received no warnings of any kind? Even if you are not trying to cheat the government out of money? Even if the government is not actually misled by your falsehood? Well it is."
This is part of the larger legal and societal problem in the Martha Stewart case. The government is threatening to put Stewart into prison for a number of actions which neither Stewart nor anyone else for that matter would have foreseen as being subject to criminal penalties. This is law at its worst - unpredictable and serendipity. It is injustice personified.
The Law Pundit sees a possible legal remedy in the prohibition of ex post facto laws found in the US Constitution.
Article I Section 9 (federal law) and Section 10 (state law) of the Constitution of the United States prohibit the passage of ex post facto laws. Ex post facto is a Latin phrase meaning "after the fact". The Constitutional prohibition against ex post facto laws prohibits laws which have the effect of RETROACTIVELY punishing any behavior as a criminal offense. Obviously, we must as citizens know in advance of our actions what is prohibited by the criminal law – not afterwards, whereas it is quite clear that Title 18, Section 1001 of the U.S. Code is being used to "nab" persons unknowing of this law and to put them behind bars - mostly because the government thinks that these persons have committed OTHER white-collar crimes which the government either can not prove or has more trouble proving.
As written by Steve Selinger at "The Case Against Civil Ex Post Facto Laws"
"In The Constitution of Liberty, F. A. Hayek (1960: 205-20) notes that some coercion, while unavoidable in a civil society, can be minimized by requiring that coercive actions comply with general rules that are known in advance by individuals. If individuals know the law, they can base their actions upon established rules and minimize the ill effects of coercion. Hayek states that not all legislative enactments will satisfy the three criteria of what he calls "true law''--generality, certainty, and equality. He argues that true law provides the general rules which minimize coercion and that legislative enactments which do not satisfy these criteria are objectionable. He writes that the law must be general, that it must be known and certain, and that it should apply equally to all. A necessary condition for the law to be known and certain is a prohibition on ex post facto laws. After all, the law can hardly be known and certain if new laws can be made to apply retroactively to actions already performed."
The Legal Standard regarding Ex Post Facto Laws
The standard regarding ex post facto laws was declared in 1798 in Calder v. Bull, 3 U.S. 386 (Dall.) (1798) in an opinion written by Chief Justice Chase:
“I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. [3 U.S. 386, 391] All these, and similar laws, are manifestly unjust and oppressive….There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME.”
Can a Public Assertion of Innocence be Punishable as a Crime? – Application of Justice Chase's ex post facto Test
In the Martha Stewart case, Stewart is being charged with a specific crime FOR asserting her innocence.
As written by Eugene Volokh regarding Brogan v. United States, 522 U.S. 398 (1998):
"[T]he Supreme Court held that 18 USC sec. 1001, the federal statute generally bars false statements to federal officials, punishes false assertions of innocence as well as other false statements."[emphasis added]
In the view of LawPundit, the right to publicly assert innocence of the commission of a crime is one of the bullwarks of the "presumption of innocence" which is at the root of American criminal law.
The attachment of yet another crime – ANY other crime - to the public assertion of innocence has a chilling effect on this presumption since it means in every case that a finding of guilt by the court – in the eyes of the law – means that the accused has lied and that his sentence is thus made greater, i.e. the punishment is increased by the new charge of the "obstruction of justice" for "making a false statement" or – as here – also "piled-on" by a charge such as “securities fraud”. This result violates the principles set out by Justice Chase.
The standard in Brogan makes an accused's sincere public assertion of innocence [as opposed to the formal legal plea of not guilty as made in court] a "potential" criminal act. It punishes such an action if a guilty verdict is issued. This violates point Nr. 1 above in Chase's opinion.
For any and every criminal charge, a person asserting innocence is opening himself or herself up to the additional charge of the obstruction of justice – for making a false statement - if a finding of guilty is brought in by the jury. This violates Nr. 2 above.
In asserting innocence, the accused may be subjected to a greater penalty for an obstruction of justice charge - or as here a securities fraud charge - than the penalty which might have been issued for the original crime charged. This violates Nr. 3 above.
The mere fact that conviction of a crime serves as the sole material element for finding "a false assertion of innocence" reduces the normal standards of proof for criminal offences, which requires the prosecution to prove the material elements of a case – elements which existed PRIOR to the verdict - and not occurring TIME-COINCIDENT with the issuance of the verdict.
As written by Paul Thomasch and Gail Appleson at Reuters in
"Martha Stewart Lawyers Say Jurors Are Confused":
"Prosecutors never obtained an insider trading indictment against Stewart. Instead they left those accusations to securities regulators who brought a civil suit that requires less proof. That suit is pending."
As related in that article, even the trial judge in the Stewart case has referred to the Stewart case IN FRONT OF PROSPECTIVE JURORS as being a "securities fraud" case. If the judge is already confused, the jury will be moreso.
In the case of the "assertion of innocence", nothing must be proven except the fact of the statement itself. The only "true" material element for the crime is the verdict determining guilt. This violates Nr. 4 above.
The Erroneous Decision in Brogan
The Law Pundit maintains that the US Supreme Court standard in Brogan in interpreting 18 U.S.C. § 1001 to permit prosecution of a "false assertion of innocence" – i.e. by not permitting an "exculpatory no" - is clearly erroneous as a matter of law insofar as it permits the determination of the commission of a crime ex post facto, which is explicitly forbidden by the US Constitution. This interpretation by Brogan clearly makes 18 U.S.C. § 1001 OPERATE continuously as an ex post facto law in permitting the punishment of assertions of innocence retroactively, and hence it is unconstitutional.
Findings of Fact and Findings of Guilt
Brogan held that a false assertion of innocence falls under "making of false statements" in violation of 18 U.S.C. § 1001. But this holding is simply false - the Supreme Court Justices did not think the matter through carefully and the short majority opinion shows they took it too lightly - always a grave mistake at this level of decisionmaking. The finding of guilt or innocence is NOT an objective "finding of fact" in the criminal law. Rather, the jury verdict is a "finding of guilt". This is an important legal difference. See e.g. RCM 921(c)(4), Manual for Courts-Martial, United States (2000 ed.), cited in United States v. Martin where this difference is clearly identified. Brogan effectively sets the two as equal and that is simply LEGALLY wrong.
First the Act, Then the Crime ?
Hence, in the eyes of the law, an assertion of innocence is not a "criminal act" at the time it is made, but is only made a criminal act by a later determination of guilt - which, however, is not a finding of fact in the legal sense.
This distinguishes a punishment for the assertion of innocence from every other crime for which the actual verdict is NOT an element of the crime, but only a determination of whether a criminal act was committed by the accused. For example, in a murder case, the criminal act has been committed, about this there is no doubt. The law then tries to find out who did it and to apply the proper penalty to the perpetrator of the act based on the material elements present, which determine e.g. whether a charge of first or second degree murder, manslaughter, etc. will be brought.
In the case of the assertion of innocence, things are exactly reversed: there is no doubt as to who did it, but there is no clear answer as to whether a criminal act has been committed, which is only determined retroactively by the jury's finding of guilt.
Perjury Distinguished
Note that this analysis applies only to the "assertion of innocence" and not to a specific lie about some point of fact – as in the case of perjury which is a false statement made under oath - which has nothing to do with the assertion of innocence, but lying about some factual item when one is testifying in court. If it can be proven that the actual fact is different than presented by a witness, then perjury has been committed. This must be clearly distinguished from an assertion of innocence by an accused - or in the Stewart case, potential accused - which relates to the subsequent outcome of a criminal prosecution and not to a factual inquiry.
The act of the assertion of innocence is thus only a "conditional crime", dependent upon a LATER event – the verdict. This makes section 1001 as discussed above an ex post facto law in the extended sense.
Brogan makes 18 U.S.C. § 1001 ex post facto for assertions of innocence made in criminal convictions
The standard in Brogan thus is clearly false as a matter of law because it elevates 18 U.S.C. § 1001 to the status of an ex post facto statute - and, if it can be so elevated by court interpretation, then the statute is unconstitutional on its face.
Pursuant to that § 1001, in the case of the assertion of innocence, and contrary to all other crimes - the verdict itself becomes ONE material element of the crime charged – indeed, the ONLY operative element, i.e. the truth or falsity of the assertion of innocence depends SOLELY on the verdict – not on some other objective standard of factual measure of truth. It is a material element which the accused can never know in advance. This is clearly a blanket ex post facto situation which arises anew for EVERY criminal case – as also in the Martha Stewart case – wherever an assertion of innocence is made.
In fact, if we apply the Supreme Court's application of 18 U.S.C. § 1001 in Brogan strictly, anyone continuing to assert their innocence AFTER conviction would be committing a criminal offense every time that such an assertion of innocence was made because the conviction would – in the eyes of that statute – make such an assertion a false statement. There, however, it would not be ex post facto – and there such a prosecution, paradoxically, would be constitutional since there would be prior knowledge of the truth or falsity of the assertion of innocence.
The Risk of Prosecutorial Abuse
Lacking in legal foresight is Justice Scalia's majority opinion in Brogan, where the „theoretical risk“ of "prosecutorial abuse" resulting from the standard applied in Brogan has in fact become an absolute reality in the Martha Stewart case.
In Brogan, Justice Scalia in his majority opinion casually downplayed this substantial risk, even though he mentioned it:
"The supposed danger is that overzealous prosecutors will use this provision as a means of “piling on” offenses–sometimes punishing the denial of wrongdoing more severely than the wrongdoing itself."
But as Professor Bainbridge, an expert on this field of law, writes:
The government did not indict Martha for insider trading, because the Justice department didn't think they could get a conviction on such a novel theory. The securities fraud claim against Martha is a novel - and, IMHO, unsupportable - extension of the securities laws.
Hence, in the Stewart case, the alleged original wrongdoing is not even provable as a matter of criminal law so that only the remaining "piled-on offenses" are being prosecuted. It is this likelihood of an abomination of justice which the Supreme Court has created through injudicious decisionmaking on this issue in the Brogan case.
Official Spin writes:
"U.S. government makes [Martha Stewart] the subject of a criminal test case designed to further expand the already unrecognisable boundaries of the U.S. federal securities laws."
The fact is that the obstruction of justice provision has become a catch-all crime to put anyone behind bars who the government wants to put there. Indeed, most of the celebrity "white-collar crime" cases of recent note have all put the accused corporate executives behind bars using the "obstruction of justice" provision of the criminal law. When that is the case - there is something seriously wrong with the system of justice.
The 5th Amendment
In the view of the LawPundit, part of the problem is that the Supreme Court does not give proper credence to the sound legal rationale behind the 5th amendment. See The Paradox of Auxiliary Rights: The Privilege against Self-Incrimination and the Right to Keep and Bear Arms by Michael Steven Green.
Justice Scalia writes condescendingly of judges who have previously embraced the "exculpatory no" doctrine – i.e. who have not seen an assertion of innocence as a crime if the accused is found guilty. Scalia writes:
"In sum, we find nothing to support the "exculpatory no" doctrine except the many Court of Appeals decisions that have embraced it."
Justice Scalia is notorious for finding "nothing" where many other brilliant judges before him have found "something". In fact, the 5th amendment "exculpatory no" doctrine developed to prohibit just the kinds of prosecutions which we are seeing in the Stewart case. As noted in The Right To Silence, prior to the development of the privilege against self-incrimination:
"[J]udges [had ]the power to interrogate an accused person on oath. This meant that an accused person could be compelled by threat of punishment to swear an oath to tell the truth, and could then be interrogated by the court in order to determine whether or not he or she had committed an offence. This exposed the accused to what the High Court has described as 'the "cruel trilemma" of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment)'."
That exactly is what has happened to Stewart. We hope that she is not put into prison for this kind of legal nonsense.
Keeping up to Date on the Stewart Case
A contraposition of arguments in the case is found at CourtTV.com
Timelines of developments are found at
CourtTV.com
slate.msn.com
money.cnn.com and
Newsday.com
The best places we have found to keep up to date on breaking news in the Martha Stewart trial is at
CourtTV.com
and
the Washington Post - click the "interactive primer" on Martha Stewart in the right column.
A Fair Trial for Martha ?
What is the Martha Stewart trial really all about? The web is full of interesting information on this inquiry.
Jennie Bristow writes in "Michael Jackson: Get real" concerning the child abuse trial of that celebrity:
" The circus surrounding this allegation is as nasty as it is naff".
The same can be said for the Martha Stewart case. It is all an improbable circus.
At one extreme we have opinions such as the following by Alan Reynolds of the Cato Institute, in an article which appeared in the Washington Times, January 18, 2004, where Reynolds writes extremely critically of the prosecution in this case:
"The real liars in this case have always been federal investigators, starting with the House Energy and Commerce Committee.
On June 6, 2002, claims Martha Stewart was strongly suspected of selling her shares because of inside information from Mr. Waksal were quite deliberately leaked to the press by "people close to a congressional investigation"....
The same committee that spread this vicious lie later wrote to U.S. Attorney General Ashcroft on Sept. 10, 2002, requesting that Martha Stewart be prosecuted ... because she "repeatedly has refused to be interviewed by committee staff -- and her attorneys have stated that she would invoke her Fifth Amendment right." This frightening campaign of vengeful, selective prosecution has continued ever since.
The only fair trial for Martha Stewart would be no trial at all, and no settlement, either. But this lady has a lot of courage, so it looks as though a trial will really occur. Prosecutors surely expected her to agree to some plea bargain long before now, making her look bad and them look good. A trial will have the opposite effect."
Although the label "liars" is unnecessary in this context, the article is symptomatic of the emotions which have been unleashed by a prosecution that many people hold to be seriously unjust and contrary to the American system of law.
On the gender front we have opinions such as those of Nina Willdorf at the Houston Chronicle:
"What Martha Stewart did or didn't do is not really why she is about to stand trial. Martha Stewart is standing trial for the serious crime of being a successful woman, for taking a retro 1950s role of the housewife and turning it into a modern moneymaking enterprise. And then telling us it was a good thing. A very good thing."
At the other extreme we have articles such as that by Robin Givhan pointing a finger at the envy of wealth and success which is always at the undercurrent of this kind of injudicious celebrity headhunting by prosecutorial bodies:
"Martha Stewart arrived in federal court ... carrying two handbags....
The second bag ... an Hermes Birkin ... the handbag equivalent of a Rolls-Royce.... It is a bag that announces that one has achieved a breathtaking level of success. It can declare its owner's wealth and status from a distance of 50 paces.
The opening price for a Birkin is $6,000, according to a spokeswoman for the company. The most expensive version is $85,000. It is made of crocodile and has solid gold closures that are adorned with diamonds....
.... Stewart's Birkin was a hand-stitched symbol of the underlying issues -- the privileges of success -- that have so agitated her detractors.
[T]he Birkin has become a cultural emblem of elitism, privilege and celebrity. It is the bag that money alone cannot buy. And it is a reminder to everyone else that those who are famous always seem to have the advantage."
The Liberty Blog replies to this issue as follows:
"The Washington Post finds Martha Stewart... guilty of carrying a handbag some other women can't afford. Ridiculous."
Is the Martha Stewart Trial a Celebrity-Bashing Career-Stepping Witch Hunt for Prosecutors?
"This is a witch hunt," said Linda Smith, as quoted by Erin McClam of the AP.
Such prosecutions may be career stepping stones for ambitious prosecutors, as noted at the Right Coast blawg, but such cases extract a very high price on the legal system, since they engender tremendous disrespect in the populace for the law and its institutions as being "partial" rather than - what they should be - "impartial" bodies.
Government procedure here is the same as in the Clinton impeachment process. If you can't get someone for the crime you wanted to get him for in the first place, get that person behind bars for not cooperating in your investigation of that very same alleged unproven viz. unprovable crime.
Has the Justice Department Nothing Better to DO ?
The US Justice Department, rather than spending its limited time and resources tracking down terrorists and putting truly dangerous people out of action, in this case is "celebrity bashing" and throwing away the taxpayers money bringing an absolutely unnecessary CRIMINAL action against a prominent US citizen who simply has refused to cooperate with them and who has claimed all along that she was NOT guilty of "insider trading" - a claim which is surely true.
Overzealous Government Prosecution Tries to do away with Attorney-Client Privilege
Witch hunts are a Pandora's Box with no end in sight. A chief witch-hunter might exclaim "Give us a chance and we will get everybody." Indeed, the zeal with which the trial against Stewart is proceeding can be surmised from a government application in the Martha Stewart case for the issuance of two subpoenas duces tecum pursuant to Federal Rule of Criminal Procedure 17(c).
[Duces tecum means Latin: bring with you. Used most frequently for a species of subpoena (as in "subpoena duces tecum") which seeks not so much the appearance of a person before a court of law, but the surrender of a thing (e.g. a document or some other evidence) by its holder, to the court, to serve as evidence in a trial. ]
The government asked for eleven documents, of which the court denied nine. As Judge Miriam Goldman Cedarbaum, United States District Judge writes:
"Apart from the fact that the Government has not made the showing required by [United States v. Nixon, 418 U.S. 683 (1974)], nine of the eleven categories of documents sought from Wachtell, Lipton are on their face either protected as work product or attorney-client privileged."
If the government - in this case - had its way, the attorney-client privilege would be nullified any time the government charged anyone with making false statements. It is a perfidious view of law.
As Judge Cedarbaum writes:
"The Government's argument that the existence of the Indictment in this case eliminates attorney-client privilege or work product protection with regard to evidence relating to statements charged in the Indictment is not persuasive. The crime-fraud exception does not provide the broad elimination of attorney-client privilege and work product protection that the Government seeks.... If the law were otherwise, every defendant accused of a crime involving the making of false statements to a government agency would lose the protection of the attorney-client privilege with respect to prior statements to his lawyer concerning the same subject matter...."
The things that the government wanted to obtain show that there is very little understanding in the Justice Department for the freedoms which are the hallmarks of the American legal system.
Other Martha Stewart Trial Links
Martha Stewart WNBC/Marist Poll
Findarticles.com quoting an article in the Advocate by Jeremy Quittner - "Martha's fall guy: how did this 27-year-old gay man from Massachusetts become the first to fall in the Martha Stewart scandal? (Business)"
The bull in Martha Stewart's china shop
"Christopher Byron explains why his unauthorized biography has ruffled the 'queen of whitebread living'" by Katharine Mieszkowski
Salon.com - Brilliant Careers - she's martha and you're not - Martha Stewart by Mary Elizabeth Williams
Andy Rooney - CBS News - Why Do People Hate Martha?
Gawker on jury selection
Forgotten Fronts - "Martha Stewart Jury Selection Nonsense"
Jerry Heaster - Kansas City Star - "Other Voices: Stewart case is a specious undertaking"
Belinda Halter and her Martha Stewart Guide picks
The Morning News - Martha's Big Day - by Danny Gregory
David Veksler at rationalmind.net
Welcome to FreeMartha.Org - The Martha Stewart Portal from HELL
Martha Stewart.com
Martha Talks
The Detroit Free Press has an article "Lawyers ask: How do you see Martha?" taken from an article in the Houston Chronicle by Andrew Guy Jr. and Daniel J. Vargas - Try this juror questionnaire
Howard Bashman at How Appealing refers to ScrappleFace's
"Martha Stewart Lawyers File for 'Change of Veneer', a tongue-in-cheek commentary.
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The Martha Stewart Case and the Erroneous Standard in Brogan
The Martha Stewart Case and the Erroneous Standard in Brogan
Prison-Possessed Prosecutor Witch-Hunting Martha Stewart ?
Professors Yin and Bainbridge have been keeping us up regularly on legal issues involved in the Martha Stewart trial and Bainbridge particularly has been aghast at the government's prosecution of this case, writing:
"[I]t is unfair to let the government fling allegations, which they end up deciding not to charge somebody with, and then let the government prosecute that person for having denied the allegations the government decided it couldn't prove. Why isn't that just whacked?
As written by the Associated Press:
The government says [Martha Stewart] was tipped that ImClone founder Sam Waksal was trying to sell his shares [of ImClone]. Waksal has admitted getting advance word of the government decision [that it would not review ImClone's application for its colon cancer drug, Erbitux] and pleaded guilty to insider trading. But Stewart was never accused by the government of personally knowing about the government report.[THAT would be insider trading.]
As Bainbridge noted above, none of the charges brought against Stewart relate to insider trading. The actual charges against Martha Stewart (five of the nine counts apply to her) are:
(1) conspiracy to obstruct justice, make false statements, and commit perjury in violation of 18 U.S.C. § 371 (Count 1); (2) making false statements in violation of 18 U.S.C. § 1001 (Counts 3 and 4); (3) obstruction of justice in violation of 18 U.S.C. § 1505 (Count 8); and securities fraud (Count 9).
Jack Kemp in "Congress should rein in rogue federal prosecutors" writes:
"Using a little-known federal statute (Title 18, Section 1001 of the U.S. Code), federal prosecutors are threatening to send Martha Stewart to jail for [allegedly] lying to government officials and for publicly declaring her innocence of insider trading even though the government refuses to charge her with the actual crime of insider trading. That's outrageous....
...Section 1001 makes it a crime to 'knowingly and willfully make any materially false, fictitious or fraudulent statement or representation in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States,' even if you are not under oath.[emphasis added by Law Pundit] The sweep of Section 1001 and the unchecked discretion it gives to federal prosecutors are awesome....
The practice of intimidating and harassing individuals into violating Section 1001 should be stopped. The only way a person should be charged under Section 1001 is if he or she is also charged with the underlying crime that triggered the original investigation during which the alleged false statement or representation was made."
Furthermore, one of the prosecution charges leveled against Martha Stewart is that her public assertion of innocence of "insider trading" - a charge which has not even been formally brought - constitutes securities fraud because that assertion – according to the government prosecutors – was made with the intention of keeping the price of stock shares in her company from falling, as written here:
"But the big concern is the securities fraud charge ... the charge hinges on the claim that Stewart lied to the press and the public in an attempt to prop up the value of her stock, Martha Stewart Living Omnimedia (MSLO).”
Just imagine what possibilities such a novel charge opens for US government prosecutors in going after corporate executives, whose ANY statement could fall victim to a similar charge. Beware my friends, this is tyranny. The flagrant abuse of power by government prosecutors in this case is a very black eye for democracy, but the problem was already clearly recognized by some of the judges in the Brogan case, e.g. in the Ginsberg opinion concurring in judgment as well as in the Stevens dissent - Stevens being the ONLY justice who would have decided Brogan "correctly" - so our opinion - by maintaining the "exculpatory no" standard as it had been applied previously by the courts.
Does the law anywhere help us against this odious, undemocratic, freedom-threatening and tyrannical legislative provision?
Maybe, but it is a longshot, and a considerable stretch of a Constitutional provision.
Ex Post Facto Laws are Prohibited by the Constitution
Let us ask a simple question to which everyone knows the answer. When Martha Stewart publicly asserted her innocence of the publicly rumored charge of insider trading, did she know that her "assertion" - and not the possible "insider trading" charge - might put her in prison? Of course not. No one knew this. It is a novel charge.
As written by Solomon L. Wisenberg of Ross, Dixon & Bell, L.L.P. for FindLaw:
"Did you know that it is a crime to tell a lie to the federal government? Even if your lie is oral and not under oath? Even if you have received no warnings of any kind? Even if you are not trying to cheat the government out of money? Even if the government is not actually misled by your falsehood? Well it is."
This is part of the larger legal and societal problem in the Martha Stewart case. The government is threatening to put Stewart into prison for a number of actions which neither Stewart nor anyone else for that matter would have foreseen as being subject to criminal penalties. This is law at its worst - unpredictable and serendipity. It is injustice personified.
The Law Pundit sees a possible legal remedy in the prohibition of ex post facto laws found in the US Constitution.
Article I Section 9 (federal law) and Section 10 (state law) of the Constitution of the United States prohibit the passage of ex post facto laws. Ex post facto is a Latin phrase meaning "after the fact". The Constitutional prohibition against ex post facto laws prohibits laws which have the effect of RETROACTIVELY punishing any behavior as a criminal offense. Obviously, we must as citizens know in advance of our actions what is prohibited by the criminal law – not afterwards, whereas it is quite clear that Title 18, Section 1001 of the U.S. Code is being used to "nab" persons unknowing of this law and to put them behind bars - mostly because the government thinks that these persons have committed OTHER white-collar crimes which the government either can not prove or has more trouble proving.
As written by Steve Selinger at "The Case Against Civil Ex Post Facto Laws"
"In The Constitution of Liberty, F. A. Hayek (1960: 205-20) notes that some coercion, while unavoidable in a civil society, can be minimized by requiring that coercive actions comply with general rules that are known in advance by individuals. If individuals know the law, they can base their actions upon established rules and minimize the ill effects of coercion. Hayek states that not all legislative enactments will satisfy the three criteria of what he calls "true law''--generality, certainty, and equality. He argues that true law provides the general rules which minimize coercion and that legislative enactments which do not satisfy these criteria are objectionable. He writes that the law must be general, that it must be known and certain, and that it should apply equally to all. A necessary condition for the law to be known and certain is a prohibition on ex post facto laws. After all, the law can hardly be known and certain if new laws can be made to apply retroactively to actions already performed."
The Legal Standard regarding Ex Post Facto Laws
The standard regarding ex post facto laws was declared in 1798 in Calder v. Bull, 3 U.S. 386 (Dall.) (1798) in an opinion written by Chief Justice Chase:
“I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. [3 U.S. 386, 391] All these, and similar laws, are manifestly unjust and oppressive….There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME.”
Can a Public Assertion of Innocence be Punishable as a Crime? – Application of Justice Chase's ex post facto Test
In the Martha Stewart case, Stewart is being charged with a specific crime FOR asserting her innocence.
As written by Eugene Volokh regarding Brogan v. United States, 522 U.S. 398 (1998):
"[T]he Supreme Court held that 18 USC sec. 1001, the federal statute generally bars false statements to federal officials, punishes false assertions of innocence as well as other false statements."[emphasis added]
In the view of LawPundit, the right to publicly assert innocence of the commission of a crime is one of the bullwarks of the "presumption of innocence" which is at the root of American criminal law.
The attachment of yet another crime – ANY other crime - to the public assertion of innocence has a chilling effect on this presumption since it means in every case that a finding of guilt by the court – in the eyes of the law – means that the accused has lied and that his sentence is thus made greater, i.e. the punishment is increased by the new charge of the "obstruction of justice" for "making a false statement" or – as here – also "piled-on" by a charge such as “securities fraud”. This result violates the principles set out by Justice Chase.
The standard in Brogan makes an accused's sincere public assertion of innocence [as opposed to the formal legal plea of not guilty as made in court] a "potential" criminal act. It punishes such an action if a guilty verdict is issued. This violates point Nr. 1 above in Chase's opinion.
For any and every criminal charge, a person asserting innocence is opening himself or herself up to the additional charge of the obstruction of justice – for making a false statement - if a finding of guilty is brought in by the jury. This violates Nr. 2 above.
In asserting innocence, the accused may be subjected to a greater penalty for an obstruction of justice charge - or as here a securities fraud charge - than the penalty which might have been issued for the original crime charged. This violates Nr. 3 above.
The mere fact that conviction of a crime serves as the sole material element for finding "a false assertion of innocence" reduces the normal standards of proof for criminal offences, which requires the prosecution to prove the material elements of a case – elements which existed PRIOR to the verdict - and not occurring TIME-COINCIDENT with the issuance of the verdict.
As written by Paul Thomasch and Gail Appleson at Reuters in
"Martha Stewart Lawyers Say Jurors Are Confused":
"Prosecutors never obtained an insider trading indictment against Stewart. Instead they left those accusations to securities regulators who brought a civil suit that requires less proof. That suit is pending."
As related in that article, even the trial judge in the Stewart case has referred to the Stewart case IN FRONT OF PROSPECTIVE JURORS as being a "securities fraud" case. If the judge is already confused, the jury will be moreso.
In the case of the "assertion of innocence", nothing must be proven except the fact of the statement itself. The only "true" material element for the crime is the verdict determining guilt. This violates Nr. 4 above.
The Erroneous Decision in Brogan
The Law Pundit maintains that the US Supreme Court standard in Brogan in interpreting 18 U.S.C. § 1001 to permit prosecution of a "false assertion of innocence" – i.e. by not permitting an "exculpatory no" - is clearly erroneous as a matter of law insofar as it permits the determination of the commission of a crime ex post facto, which is explicitly forbidden by the US Constitution. This interpretation by Brogan clearly makes 18 U.S.C. § 1001 OPERATE continuously as an ex post facto law in permitting the punishment of assertions of innocence retroactively, and hence it is unconstitutional.
Findings of Fact and Findings of Guilt
Brogan held that a false assertion of innocence falls under "making of false statements" in violation of 18 U.S.C. § 1001. But this holding is simply false - the Supreme Court Justices did not think the matter through carefully and the short majority opinion shows they took it too lightly - always a grave mistake at this level of decisionmaking. The finding of guilt or innocence is NOT an objective "finding of fact" in the criminal law. Rather, the jury verdict is a "finding of guilt". This is an important legal difference. See e.g. RCM 921(c)(4), Manual for Courts-Martial, United States (2000 ed.), cited in United States v. Martin where this difference is clearly identified. Brogan effectively sets the two as equal and that is simply LEGALLY wrong.
First the Act, Then the Crime ?
Hence, in the eyes of the law, an assertion of innocence is not a "criminal act" at the time it is made, but is only made a criminal act by a later determination of guilt - which, however, is not a finding of fact in the legal sense.
This distinguishes a punishment for the assertion of innocence from every other crime for which the actual verdict is NOT an element of the crime, but only a determination of whether a criminal act was committed by the accused. For example, in a murder case, the criminal act has been committed, about this there is no doubt. The law then tries to find out who did it and to apply the proper penalty to the perpetrator of the act based on the material elements present, which determine e.g. whether a charge of first or second degree murder, manslaughter, etc. will be brought.
In the case of the assertion of innocence, things are exactly reversed: there is no doubt as to who did it, but there is no clear answer as to whether a criminal act has been committed, which is only determined retroactively by the jury's finding of guilt.
Perjury Distinguished
Note that this analysis applies only to the "assertion of innocence" and not to a specific lie about some point of fact – as in the case of perjury which is a false statement made under oath - which has nothing to do with the assertion of innocence, but lying about some factual item when one is testifying in court. If it can be proven that the actual fact is different than presented by a witness, then perjury has been committed. This must be clearly distinguished from an assertion of innocence by an accused - or in the Stewart case, potential accused - which relates to the subsequent outcome of a criminal prosecution and not to a factual inquiry.
The act of the assertion of innocence is thus only a "conditional crime", dependent upon a LATER event – the verdict. This makes section 1001 as discussed above an ex post facto law in the extended sense.
Brogan makes 18 U.S.C. § 1001 ex post facto for assertions of innocence made in criminal convictions
The standard in Brogan thus is clearly false as a matter of law because it elevates 18 U.S.C. § 1001 to the status of an ex post facto statute - and, if it can be so elevated by court interpretation, then the statute is unconstitutional on its face.
Pursuant to that § 1001, in the case of the assertion of innocence, and contrary to all other crimes - the verdict itself becomes ONE material element of the crime charged – indeed, the ONLY operative element, i.e. the truth or falsity of the assertion of innocence depends SOLELY on the verdict – not on some other objective standard of factual measure of truth. It is a material element which the accused can never know in advance. This is clearly a blanket ex post facto situation which arises anew for EVERY criminal case – as also in the Martha Stewart case – wherever an assertion of innocence is made.
In fact, if we apply the Supreme Court's application of 18 U.S.C. § 1001 in Brogan strictly, anyone continuing to assert their innocence AFTER conviction would be committing a criminal offense every time that such an assertion of innocence was made because the conviction would – in the eyes of that statute – make such an assertion a false statement. There, however, it would not be ex post facto – and there such a prosecution, paradoxically, would be constitutional since there would be prior knowledge of the truth or falsity of the assertion of innocence.
The Risk of Prosecutorial Abuse
Lacking in legal foresight is Justice Scalia's majority opinion in Brogan, where the „theoretical risk“ of "prosecutorial abuse" resulting from the standard applied in Brogan has in fact become an absolute reality in the Martha Stewart case.
In Brogan, Justice Scalia in his majority opinion casually downplayed this substantial risk, even though he mentioned it:
"The supposed danger is that overzealous prosecutors will use this provision as a means of “piling on” offenses–sometimes punishing the denial of wrongdoing more severely than the wrongdoing itself."
But as Professor Bainbridge, an expert on this field of law, writes:
The government did not indict Martha for insider trading, because the Justice department didn't think they could get a conviction on such a novel theory. The securities fraud claim against Martha is a novel - and, IMHO, unsupportable - extension of the securities laws.
Hence, in the Stewart case, the alleged original wrongdoing is not even provable as a matter of criminal law so that only the remaining "piled-on offenses" are being prosecuted. It is this likelihood of an abomination of justice which the Supreme Court has created through injudicious decisionmaking on this issue in the Brogan case.
Official Spin writes:
"U.S. government makes [Martha Stewart] the subject of a criminal test case designed to further expand the already unrecognisable boundaries of the U.S. federal securities laws."
The fact is that the obstruction of justice provision has become a catch-all crime to put anyone behind bars who the government wants to put there. Indeed, most of the celebrity "white-collar crime" cases of recent note have all put the accused corporate executives behind bars using the "obstruction of justice" provision of the criminal law. When that is the case - there is something seriously wrong with the system of justice.
The 5th Amendment
In the view of the LawPundit, part of the problem is that the Supreme Court does not give proper credence to the sound legal rationale behind the 5th amendment. See The Paradox of Auxiliary Rights: The Privilege against Self-Incrimination and the Right to Keep and Bear Arms by Michael Steven Green.
Justice Scalia writes condescendingly of judges who have previously embraced the "exculpatory no" doctrine – i.e. who have not seen an assertion of innocence as a crime if the accused is found guilty. Scalia writes:
"In sum, we find nothing to support the "exculpatory no" doctrine except the many Court of Appeals decisions that have embraced it."
Justice Scalia is notorious for finding "nothing" where many other brilliant judges before him have found "something". In fact, the 5th amendment "exculpatory no" doctrine developed to prohibit just the kinds of prosecutions which we are seeing in the Stewart case. As noted in The Right To Silence, prior to the development of the privilege against self-incrimination:
"[J]udges [had ]the power to interrogate an accused person on oath. This meant that an accused person could be compelled by threat of punishment to swear an oath to tell the truth, and could then be interrogated by the court in order to determine whether or not he or she had committed an offence. This exposed the accused to what the High Court has described as 'the "cruel trilemma" of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment)'."
That exactly is what has happened to Stewart. We hope that she is not put into prison for this kind of legal nonsense.
Keeping up to Date on the Stewart Case
A contraposition of arguments in the case is found at CourtTV.com
Timelines of developments are found at
CourtTV.com
slate.msn.com
money.cnn.com and
Newsday.com
The best places we have found to keep up to date on breaking news in the Martha Stewart trial is at
CourtTV.com
and
the Washington Post - click the "interactive primer" on Martha Stewart in the right column.
A Fair Trial for Martha ?
What is the Martha Stewart trial really all about? The web is full of interesting information on this inquiry.
Jennie Bristow writes in "Michael Jackson: Get real" concerning the child abuse trial of that celebrity:
" The circus surrounding this allegation is as nasty as it is naff".
The same can be said for the Martha Stewart case. It is all an improbable circus.
At one extreme we have opinions such as the following by Alan Reynolds of the Cato Institute, in an article which appeared in the Washington Times, January 18, 2004, where Reynolds writes extremely critically of the prosecution in this case:
"The real liars in this case have always been federal investigators, starting with the House Energy and Commerce Committee.
On June 6, 2002, claims Martha Stewart was strongly suspected of selling her shares because of inside information from Mr. Waksal were quite deliberately leaked to the press by "people close to a congressional investigation"....
The same committee that spread this vicious lie later wrote to U.S. Attorney General Ashcroft on Sept. 10, 2002, requesting that Martha Stewart be prosecuted ... because she "repeatedly has refused to be interviewed by committee staff -- and her attorneys have stated that she would invoke her Fifth Amendment right." This frightening campaign of vengeful, selective prosecution has continued ever since.
The only fair trial for Martha Stewart would be no trial at all, and no settlement, either. But this lady has a lot of courage, so it looks as though a trial will really occur. Prosecutors surely expected her to agree to some plea bargain long before now, making her look bad and them look good. A trial will have the opposite effect."
Although the label "liars" is unnecessary in this context, the article is symptomatic of the emotions which have been unleashed by a prosecution that many people hold to be seriously unjust and contrary to the American system of law.
On the gender front we have opinions such as those of Nina Willdorf at the Houston Chronicle:
"What Martha Stewart did or didn't do is not really why she is about to stand trial. Martha Stewart is standing trial for the serious crime of being a successful woman, for taking a retro 1950s role of the housewife and turning it into a modern moneymaking enterprise. And then telling us it was a good thing. A very good thing."
At the other extreme we have articles such as that by Robin Givhan pointing a finger at the envy of wealth and success which is always at the undercurrent of this kind of injudicious celebrity headhunting by prosecutorial bodies:
"Martha Stewart arrived in federal court ... carrying two handbags....
The second bag ... an Hermes Birkin ... the handbag equivalent of a Rolls-Royce.... It is a bag that announces that one has achieved a breathtaking level of success. It can declare its owner's wealth and status from a distance of 50 paces.
The opening price for a Birkin is $6,000, according to a spokeswoman for the company. The most expensive version is $85,000. It is made of crocodile and has solid gold closures that are adorned with diamonds....
.... Stewart's Birkin was a hand-stitched symbol of the underlying issues -- the privileges of success -- that have so agitated her detractors.
[T]he Birkin has become a cultural emblem of elitism, privilege and celebrity. It is the bag that money alone cannot buy. And it is a reminder to everyone else that those who are famous always seem to have the advantage."
The Liberty Blog replies to this issue as follows:
"The Washington Post finds Martha Stewart... guilty of carrying a handbag some other women can't afford. Ridiculous."
Is the Martha Stewart Trial a Celebrity-Bashing Career-Stepping Witch Hunt for Prosecutors?
"This is a witch hunt," said Linda Smith, as quoted by Erin McClam of the AP.
Such prosecutions may be career stepping stones for ambitious prosecutors, as noted at the Right Coast blawg, but such cases extract a very high price on the legal system, since they engender tremendous disrespect in the populace for the law and its institutions as being "partial" rather than - what they should be - "impartial" bodies.
Government procedure here is the same as in the Clinton impeachment process. If you can't get someone for the crime you wanted to get him for in the first place, get that person behind bars for not cooperating in your investigation of that very same alleged unproven viz. unprovable crime.
Has the Justice Department Nothing Better to DO ?
The US Justice Department, rather than spending its limited time and resources tracking down terrorists and putting truly dangerous people out of action, in this case is "celebrity bashing" and throwing away the taxpayers money bringing an absolutely unnecessary CRIMINAL action against a prominent US citizen who simply has refused to cooperate with them and who has claimed all along that she was NOT guilty of "insider trading" - a claim which is surely true.
Overzealous Government Prosecution Tries to do away with Attorney-Client Privilege
Witch hunts are a Pandora's Box with no end in sight. A chief witch-hunter might exclaim "Give us a chance and we will get everybody." Indeed, the zeal with which the trial against Stewart is proceeding can be surmised from a government application in the Martha Stewart case for the issuance of two subpoenas duces tecum pursuant to Federal Rule of Criminal Procedure 17(c).
[Duces tecum means Latin: bring with you. Used most frequently for a species of subpoena (as in "subpoena duces tecum") which seeks not so much the appearance of a person before a court of law, but the surrender of a thing (e.g. a document or some other evidence) by its holder, to the court, to serve as evidence in a trial. ]
The government asked for eleven documents, of which the court denied nine. As Judge Miriam Goldman Cedarbaum, United States District Judge writes:
"Apart from the fact that the Government has not made the showing required by [United States v. Nixon, 418 U.S. 683 (1974)], nine of the eleven categories of documents sought from Wachtell, Lipton are on their face either protected as work product or attorney-client privileged."
If the government - in this case - had its way, the attorney-client privilege would be nullified any time the government charged anyone with making false statements. It is a perfidious view of law.
As Judge Cedarbaum writes:
"The Government's argument that the existence of the Indictment in this case eliminates attorney-client privilege or work product protection with regard to evidence relating to statements charged in the Indictment is not persuasive. The crime-fraud exception does not provide the broad elimination of attorney-client privilege and work product protection that the Government seeks.... If the law were otherwise, every defendant accused of a crime involving the making of false statements to a government agency would lose the protection of the attorney-client privilege with respect to prior statements to his lawyer concerning the same subject matter...."
The things that the government wanted to obtain show that there is very little understanding in the Justice Department for the freedoms which are the hallmarks of the American legal system.
Other Martha Stewart Trial Links
Martha Stewart WNBC/Marist Poll
Findarticles.com quoting an article in the Advocate by Jeremy Quittner - "Martha's fall guy: how did this 27-year-old gay man from Massachusetts become the first to fall in the Martha Stewart scandal? (Business)"
The bull in Martha Stewart's china shop
"Christopher Byron explains why his unauthorized biography has ruffled the 'queen of whitebread living'" by Katharine Mieszkowski
Salon.com - Brilliant Careers - she's martha and you're not - Martha Stewart by Mary Elizabeth Williams
Andy Rooney - CBS News - Why Do People Hate Martha?
Gawker on jury selection
Forgotten Fronts - "Martha Stewart Jury Selection Nonsense"
Jerry Heaster - Kansas City Star - "Other Voices: Stewart case is a specious undertaking"
Belinda Halter and her Martha Stewart Guide picks
The Morning News - Martha's Big Day - by Danny Gregory
David Veksler at rationalmind.net
Welcome to FreeMartha.Org - The Martha Stewart Portal from HELL
Martha Stewart.com
Martha Talks
The Detroit Free Press has an article "Lawyers ask: How do you see Martha?" taken from an article in the Houston Chronicle by Andrew Guy Jr. and Daniel J. Vargas - Try this juror questionnaire
Howard Bashman at How Appealing refers to ScrappleFace's
"Martha Stewart Lawyers File for 'Change of Veneer', a tongue-in-cheek commentary.
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LAW PUNDIT Sunday, February 01, 2004 2/01/2004 06:51:00 PM [Home]
Zahi Hawass and the Rule of Law
Zahi Hawass and the Rule of Law
The Law Pundit is a fan of Zahi Hawass, a great personality and showman, no doubt, but also a sincere man by our estimation in his position as head of the Giza Pyramids of Egypt and as secretary-general of the Supreme Council of Antiquities (SCA) in Egypt. Nothing happens at the pyramids without the OK of Hawass. We agree with that philosophy. Someone has to be in charge.
He is quoted by Ursula Lindsey in a special to the Daily Star online entitled "Zahi Hawass: 'A strong personality is essential for a good archaeologist': Head of Egypt’s antiquities council explains how to preserve ancient treasures" as follows:
"Every place in the world needs laws. You have to follow rules. The pyramids (fell into) chaos, because they're controlled by people who care about their own business. They don't care about Egypt, about the heritage of Egypt."[emphasis added]
The Law Pundit regards that to be a succinct statement of the benefits of the Rule of Law, which applies to all parts of the world, to all sites - ancient and modern, to all societies, to all nations, to all enterprises and to all humans. In a world under the control of people who care only about their own "business" - broadly defined to include political and religious aims - everything falls into chaos. Only the Rule of Law - and its proper enforcement - guarantee the kind of peace in the world that the vast majority of people wish to have.
Permalink : Andis Kaulins : 2/01/2004 06:51:00 PM
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Zahi Hawass and the Rule of Law
Zahi Hawass and the Rule of Law
The Law Pundit is a fan of Zahi Hawass, a great personality and showman, no doubt, but also a sincere man by our estimation in his position as head of the Giza Pyramids of Egypt and as secretary-general of the Supreme Council of Antiquities (SCA) in Egypt. Nothing happens at the pyramids without the OK of Hawass. We agree with that philosophy. Someone has to be in charge.
He is quoted by Ursula Lindsey in a special to the Daily Star online entitled "Zahi Hawass: 'A strong personality is essential for a good archaeologist': Head of Egypt’s antiquities council explains how to preserve ancient treasures" as follows:
"Every place in the world needs laws. You have to follow rules. The pyramids (fell into) chaos, because they're controlled by people who care about their own business. They don't care about Egypt, about the heritage of Egypt."[emphasis added]
The Law Pundit regards that to be a succinct statement of the benefits of the Rule of Law, which applies to all parts of the world, to all sites - ancient and modern, to all societies, to all nations, to all enterprises and to all humans. In a world under the control of people who care only about their own "business" - broadly defined to include political and religious aims - everything falls into chaos. Only the Rule of Law - and its proper enforcement - guarantee the kind of peace in the world that the vast majority of people wish to have.
Permalink : Andis Kaulins : 2/01/2004 06:51:00 PM
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