I’ve often wished that the general public could see what goes on behind closed doors in the criminal courts. All that is generally reported is the damning accusations against a defendant. The press accepts the state’s claims as the controlling narrative. The fight to make sure a client is truly presumed innocent is usually lost in the press before the first gavel falls in a courtroom.
So let me show you the machinery of justice as it whirred in the backroom of one Connecticut courthouse. I will not use names, nor will I reveal privileged information. I will relay the story in general terms so that you get a sense of how the world works in criminal court.
I represent a former teacher accused of sexual relations with a student a decade ago. My client is a woman. The complaining witness is a young man. She denied consensual sex with the young man, but told the police that when he was a lumbering and awkward teen he raped her. She was afraid of him, so she kept the contact secret.
Along life’s way, the young man got into his own legal troubles. Not long ago, he told the police he was a victim. My client took advantage of him when he was too young to consent to sexual contact, he claimed an awkward decade later. The police pressed charges, a judge signed a warrant for my client’s arrest, and we’ve pled not guilty to the crimes charged and are preparing for trial.
Comes now a set of lawyers for this complaining witness. If our client will but enter a straight guilty plea and identify those in the school district who were aware of the relationship between student and teacher, the complaining witness will not object to a nominal prison term and will not seek significant money damages against our client in the forthcoming civil suit.
This is the worst sort of ambulance chasing imaginable. We’ve told the lawyers for the young man claiming rape to pound sand. (For those of you without a practiced ear in the criminal process, a straight guilty plea is one acknowledging that the conduct alleged did, in fact, take place. The law has other forms of pleading for those who agree to be found guilty without an admission of having done anything wrong. It is a strange fact, but a common practice.)
It is generally frowned up by those who police the conduct of lawyers to threaten to initiate criminal prosecution for purposes of gaining advantage in a civil suit. The stakes and interests in civil and criminal courts are supposed to be different. In the criminal courts, the state prosecutes to keep order, to assure public safety and to make such communal statements as are deemed necessary about the conduct of those who break the law. The civil courts are about money damages for the accusing party. Both fora say they are concerned with justice.
In fact, the lines are blurred behind closed doors. In Connecticut, for example, people bearing the title "Victim’s Advocates" attend pre-trials and private plea negotiations. It is a sign of the courts’ tilting again in the direction of private vendetta as a motive in prosecution. Just how do we decide that some folks are "victims" in a criminal case governed by the presumption of innocence? I prefer to call those contending my client harmed them "complaining witnesses." That’s all they are until a finding of guilt has entered, whether by plea or verdict. If my client is found "not guilty" then the complaining witness may not be a victim at all. They might just be a gold digger. I wonder, in fact, whether all the young men now traipsing into Pennsylvania courts really even knew Jerry Sandusky.
It is a constant in the criminal courts: "victims" want consideration in exchange for agreement to a favorable plea deal. Prosecutors play along in this charade. Thus, in an embezzlement case, it is not uncommon for a defendant to be offered a walk out the door if they can repay all the money they are accused of taking. Prosecutors wink at this uneasy and unholy wedding of the civil and criminal justice systems. It helps move cases along the conveyor belt, after all.
But the recent fandango in the case of my client accused of sex with a minor was more than just a tasteless dance. It was such a sleazy maneuver the prosecutor handling the case on behalf of the state refused even to sit in on the discussion between the lawyer for the complaining witness and my office. And for good reason.
Our position has been clear from the outset: Our client is a victim, not a criminal; and she told no one about the incident for fear of reprisal. The suggestion that she could now help herself by "naming names" of those in her school district who were aware of her "abuse" of the complaining witness is an invitation to perjury we’re not willing to entertain. This was the worst sort of hunting for deep pockets imaginable in a criminal court.
If you want to find yourself on my witness list in a case, do just what the lawyers in this case did: Come to court, and offer an accused person a break if they will help put money in your pocket and into the pocket of the complaining witness. And don’t try to hide behind the general rule against admitting settlement discussions into evidence. No one invited lawyers to come to a criminal proceeding and offer to agree to leniency if we help them to get paid. They conceived this one without invitation from the court.
Cross-examination about a financial interest in the outcome of a case is always admissible. In this case, lawyers for the complaining witness made clear they were present negotiating with their client’s consent. And if they were there making it up on their own, why that’s even worse.
It stinks, I tell you. I wonder what a jury will think of this particular form of ambulance chasing?
I expect the trial of the year will be United States of America v. Julian Assange. Of course, Assange has not yet been charged. He is not even in the country. But the United States will find a way to bring him here, a sort of reverse rendition that will place the Australian hacker within the jurisdiction of the United States.
Assange will be tried under the Espionage Act, legislation passed in 1917 making it a crime to take information from the government and use it to interfere with the operation or success of the armed forces of the United States or to promote the success of our enemies. The poet E.E. Cummings, Ethel and Julius Rosenberg and Daniel Ellsberg were all charged under the act.
The forthcoming prosecution arises from Assange’s work on behalf of Wikileaks. In the past few years, Wikileaks has published the “Collateral Murder” video on YouTube, showing American gunners mowing down Iraqis for no apparent reason other than the thrill of the kill. Assange and Wikileaks also arranged the publication of thousands of confidential documents regarding the U.S. war efforts in Iraq and Afghanistan, and the release of confidential diplomatic cables, in cooperation with newspapers around the world.
Assange did not find these documents buried under a rock. The U.S. Government believes that the documents were given to Assange by a disgruntled American soldier, Bradley Manning. Manning has been subjected to isolation and psychological abuse during more than a year of captivity in American military custody. The abuse is undoubtedly intended to break Manning, to get him to portray Assange as an active participant in the effort to obtain confidential documents. On the government’s theory, Assange provided Manning with computer equipment making the downloading, processing and removal of the information from secure U.S. computers possible. There is little or no proof that this allegation is true.
If the government can prove that Assange was more than a passive recipient of the documents, it will seek to claim that he was a conspirator with Manning in violation of the Espionage Act. No press organization has ever been successfully prosecuted under the act. Assange must be made to be more than a purveyor of information; he must be transformed into an electronic thief. A good part of the recent preliminary hearings in the military proceedings against Mr. Manning last month seemed designed to persuade that Assange was no journalist, but was, in fact, the legal equivalent of a spy, a spy serving no state, but simply the public’s right to know.
Assange is controversial not just because of his role as the Gutenberg of the Internet, making once secret and occult truths accessible to all. He is an eccentric, seemingly rootless, living a peripatetic, wandering sort of life. At least he lived such a life before his arrest in London and his confinement to the estate of an supporter on house arrest as he challenges extradition to Sweden to face trumped up charges of sexual assault with two groupies. He has placed himself at the center of storm, simultaneously alienating and attracting others who support transparency and the opening of secret government archives and files to the world.
If you’ve not had a chance yet to view Judith Ehrlich’s and Rick Goldsmith’s documentary on Daniel Ellsburg, do so. I found my copy on Amazon. It’s called The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers. The film was nominated for an Academy Award in 2010. What’s striking about the film is the government’s hatred of Ellsberg for leaking the secret history of our failed war in Vietnam to American newspapers. The government raided his psychiatrist’s office without a warrant to look for dirt to smear Ellsberg with; the burglars who performed that mission went on to get caught raiding Democratic Party offices at the Watergate, an event that led to the resignation of President Richard Nixon.
Assange is similarly hated. Politicians have called for stern and prompt action against him, some even going so far as to call for his assassination. I hope someone will someday be able to leak to the world the diplomatic efforts underway to get Assange out of England, and into our custody.
The case against Ellsberg was ultimately dismissed as a result of government misconduct. That was an era in which the judiciary would from time to time hold the government accountable for violating the rights of ordinary people. TImes have changed. I expect that if Assange is brought to the United States to face trial, significant parts of the government’s efforts to bring him to trial will be kept from public view on “national security” grounds.
Assange and Wikileaks deserve a Nobel Peace Prize, not prosecution. It ought not to be a crime to disclose government lies and deception. Global communications by way of the Internet pose a challenge to traditional power structures as significant, perhaps more significant, than that posed by the emergence of the printing press.
The Assange trial will be wedded to efforts to bring the Internet under the control of government. Expect 2012 to a year of concerted attempts to make it harder to expose secrets. We the people just can’t be trusted to know what our government is doing.