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Deceiving, Deception, Dishonor
“Houston, we have a problem.” Fateful words that for persons, like me — part of the generation whose youth was spent in the race to the Moon — are the embodiment of grievous danger. And that danger is within our system of laws.
America runs on trust. Ours is a “high trust” society. We contract. We self-report our income for tax purposes. Although admonished to “drive defensively” we rely on our fellow citizens to act in predictable ways that follow the rules or a pretty close approximation thereto.
Similarly, we rely on our legal institutions to follow rules or a pretty close approximation thereto. But they seem to be letting us down.
Here are six examples:
- Targets of investigations can be lied to, but not lie to investigators.
- Investigators test whether a target will answer a question “truthfully” under the guise of collecting unknown information, when the investigators actually know the answer, or think they do.
- Innocent people cannot behave in normal and natural ways that an innocent person would once suspicion has been cast upon them.
- Associates of innocent persons who have committed unrelated crimes are manipulated to provide false evidence against the innocent.
- Plea bargains are negotiated whereby innocent persons admit to crimes they did not commit to avoid the risk of conviction and punishment for a more severe offense.
- Evidence of innocence is too often ignored and hidden by investigators and prosecutors.
That our court system in any way countenances this behavior makes a mockery of the Constitution.
It is time to take a step waaaay back and look at what is going on. There are justifications or rationalizations for all of these behaviors individually and on a case by case basis. But it is corrupting the rule of law and undermining trust in the administration of justice.
Published in General
Truth, justice, and the American Way are being degraded. We can fix it, if we vote like it is a priority. We have to ignore what the MSM tells us to be outraged about and focus on rule of law.
I so agree with your Rodin.
Regarding Point One–the legality of an investigator lying to a suspect in a crime:
You may very well be right. I am inclined to agree with you.
But I’m ignorant of what our traditions concerning this are. Legal folks, please give us some info? Sorry if it’s been already discussed recently and I missed it.
Not to be all Burkean Conservative about this. But it’s not the sort of question I would want to decide based on my own personal experience with 2500 years of Western civilization.*
I’d prefer to go with the accumulated practical wisdom gained over those centuries, and bequeathed to our legal experts for safekeeping, and for our free beneficial use, and for passing on to the next generation of Americans.
*To be honest, I’m not even sure I’d want you to decide it, though you probably have studied it a lot more than I have.
The courts have upheld the tactic of police lying to someone they are questioning.
For example, if two alleged perpetrators are being held and interrogated, in each room the suspect might be saying nothing but be told that the other one is talking freely and incriminating the present suspect. Hope is this will induce the suspect to confess.
Here’s a law review article on the point:
https://www.jstor.org/stable/1290529?seq=1#page_scan_tab_contents
Precedence, utility, and the fact that the Supreme Court hasn’t said ‘no’ do not add up to a just practice.
And speaking of justice, I sure as heck ain’t subscribing to read the rest of that article.
Thanks, Fritz.
I think the paper was behind a paywall.
Anyway, I was aware that recent courts in the US have upheld it, but these decisions must be founded on a stream of precedents going back to the US and English Constitutions and beyond, back to Roman law.
What is this history, I wonder?
With respect to the issue of lying to targets of investigation, going from memory and without looking back at any cases, I believe that when these tactics are upheld, it is because they did not bring the voluntary nature of the confession into question. In other words, it’s not so much that the court approves of investigators lying to defendants, it’s just that whatever lie they told did not overwhelm the defendant’s ability to choose to make, or not make, a confession. If they told the target, “Your children are going to die if you don’t confess,” that would be a lie that did subvert the voluntary nature of the confession. That’s an absurd example, of course, but it would have be along those lines. This assumes, of course, that the interrogation itself is legal.
The Constitution does guarantee that certain rights are respected, the right against coerced confessions among them, the right against unreasonable searches and seizures, the right to present evidence at trial, to confront and cross examine witnesses, etc…but that doesn’t mean it is guaranteeing a fair fight between law enforcement and the accused. The requirement that police get a search warrant, for example, is not there so that the accused has a fair chance to hide evidence or to get a head start on a getaway. This isn’t meant to be treated like a sport.
Under English law, what were the protections from police use of deception against a citizen being questioned, if any?
That’s a good question. I don’t really know the answer, but I doubt there were many protections from that, beyond the concern about coercion. Generally all of those English common law protections were carried through and strengthened in American law. I think it would be difficult to find stronger civil rights protections in old English law than in the American system that was derived from it.
I’ll have to go digging for it but I seem to remember one of the players in the recent Mueller hoax (sorry, so-called Mueller hoax…for our local buffoons) was hauled back before the judge for witness tampering (or something) because he refused to stop talking to a witness in the coming case against him. The problem was that the witness list was kept secret and he couldn’t know which one of his friends or past acquaintances was to be a witness against him.
You say this is a “high trust society.” I say not for long.
Barack Obama promised to “fundamentally transform” the United States. Little did we know he meant to transform it into a banana republic by corrupting our justice system (among other federal agencies).
Well, some of us figured it was a possibility, given his stealth leftism…
To be fair, we wouldn’t self-report our income if the banking industry weren’t forced to be in cahoots with the federal government, by law.
Or if we didn’t have payroll deduction as well. But the root cause is not an unwillingness to bear the burden of government, it is a similar breakage of trust where our government does not fairly allocate the costs and burdens and does not exert appropriate stewardship both as to the amount of funds to be demanded and the administration of those funds.
Basically, we’re all human and some folks with too much power tilted toward them will abuse it and that grows through time. We’re not worse or better than our ancestors, but we’re giving the central government, whether prosecutor, tax authority or regulator, too much power and that power is drifting away from institutions that are accountable to the folks and toward Washington. Washington is a city full of normal people who are not accountable to the rest of us. They are accountable to folks in Washington, mostly immediate bosses, and loosely and weakly to folks on the Hill and to firms and organizations large enough to wield such influence. It wasn’t set up that way and letting accountability drift far away from the people is the problem. Even state governments are mostly accountable to Washington because so much of their money and programs are controlled there or accountable to well organized interests in the states. Probably it really started with the income tax but it’s just the way political power works and we have all of human history to learn how it ends unless we fix the features that are undoing the protections the founding fathers built into the system. We’re big enough, diverse enough and spread out far enough so that we should be able to stumble toward some fixes, but it won’t fix itself. That’s not how it works.
Agreed. It’s not the distribution of wealth I worry about — it’s the distribution of power. This whole Donald Trump hysteria is because powerful people are “#resisting” the will of the people as expressed in 2016. They refuse to accept our choice. This way leads to tyranny.
Amen and Amen!
I agree completely. Unless the Republicans resist them, tyranny is what we will have. We aren’t putting up much resistance, but what’s worse, the trend within our party is in the wrong direction.
I think that all of the leading politicians today are taking advantage of the weakened character of the people of the Republic, which is a product of its phenomenal success. The Democrats are in the vanguard, beginning to carry out the next typical step (if Rome continues to be the example we are emulating): the fall of the Republic. That is what they are doing by trying to subvert the electoral process, by subversion against the Justice Dept. the security agencies, and the press.
The Republicans are in the rear, being dragged along, with some of them trying to preserve the process (e.g., AG Barr, Justice Kavanaugh) and some furiously threatening to abandon the cause and join the Democrats in the assault on our unique American republican institutions.
Just want to point out that “republicans” are the establishment who want to keep power. The people need to wrest power from them and front the democrats.
@skyler this is a bit cryptic for me. I assume by using lower case “r” republicans and “d” democrats you are referring political theories not parties. Is this correct?
Stupid iphone. Last phrase should have been “from the democrats.” I was referring to the political parties, of course.
Skyler, I and others of like mind are trying to wrest power from those who do not respect the Constitution and the spirit of the Declaration of Independence. The counter-revolutionaries to the American Revolution.
We really don’t give a damn what party a person is, who is trying to overthrow Constitutional government and and put us on a path to State slavery. Anyone American who does that is a traitor, in my mind–not legally of course, but morally.
I fail to see how forcing a plea on a ‘minor’ charge under threat of financial ruin, or worse under threat of ruining someone’s children is not considered a confession under duress. Governments at all levels should be made to pay all the costs of a defendant who is found not guilty, perhaps more innocent people would demand jury trials.
Yes. And there are problems both when they are innocent and when they are guilty. For example, some bad drug criminals who were permitted to plea to lesser offenses made themselves eligible for better treatment under First Step than they would otherwise deserve. The only defendant for which a plea bargain works in the public interest is if there is certain knowledge of an offense and an offender which is going to be excluded at trial and throw any conviction into doubt. Economy in the administration of justice is not (IMO) a justification for pleading down, and certainly not pressuring a person with threats of ruin to take a plea.
Indeed, if you listen to Dragnet radio episodes, you will hear police behaving in ways now prohibited by a long series of court decisions. That series did attempt to faithfully and favorably represent the LAPD.
I don’t doubt that something like this happens occasionally, and it is awful. I’ve worked for years as a public defender and I’m sure it has happened in a case or two that I have handled.
But I don’t think it is the same thing as a plea under duress. It’s one thing to be outright threatened or bullied into a plea by a prosecutor who knows you are not guilty, knows there’s no good evidence, etc… that’s illegal duress. It’s another thing entirely to decide to voluntarily plead guilty to a lesser charge because, although innocent, there is a huge amount of good evidence that you are guilty of the charged crime, and a significant risk a jury will find you guilty of it. That’s the far more common scenario.
But even though that’s the more common scenario of the two, it’s still not very common. Plea bargaining most often benefits the accused. The thing that really happens most often is that someone who is guilty of the more severe crime is able to plea it down to a lesser charge.
The truth is plea bargaining can be an ugly sausage-making thing, but it is necessary these days. Without it, you would have to either build a courthouse on every corner and quadruple the number of judges you have, and get ready to do jury duty once a month; or else let a lot of crimes go uncharged.
Or, and maybe this is radical thinking, stop writing speeding tickets.
I don’t do criminal law, I do civil law, mostly CPS cases representing children or parents in cases where parental rights are at risk, and I see this all the time.
A girl or a woman needs only make an accusation of sexual assault, and rarely needs any evidence besides her word to get termination of the father’s parental rights. It’s unamerican and frightening to witness.
Because the burden of proof is “clear and convincing evidence” rather then “beyond a reasonable doubt” it doesn’t take much at all to ruin an innocent man. I’ve heard an assistant district attorney explain to me that she “always believes a woman” who makes an allegation of sexual abuse or domestic violence.
Here’s a typical example from a case I’m experienced with: Dad is accused of molesting step daughters many years prior to the child making an outcry. Only two people in the universe know whether the accusations of sexual assault are true; the child and the former step-father. It’s entirely her word against his.
Criminal charges have been pending for a year and a half. The CPS assistant district attorney loves to remind the judge that charges are pending, but none have been filed and never will be until the CPS case is concluded.
I cannot allow my client to take the stand in his defense. Anything he would say would be used against him in a criminal proceeding. But refusing to answer will allow the judge or jury to conclude the worst. That is, if asked if he molested the girls, and he refuses to answer, the judge or jury can conclude that he is guilty. In a criminal court this isn’t allowed.
Therefore, he will have his parental rights terminated because they will not allow the criminal trial to go prior to the civil trial ending, and since he can’t defend himself he is doomed. His parental rights will be terminated for his daughter, based on some other kid making allegations. In fact, in a case I have now, he can’t talk to his child, but CPS has been allowed to indoctrinate his child with the alleged victim’s accusations, turning her against him.
I don’t know if the man is guilty or innocent, but it’s easy to imagine how a spiteful lie could be used to ruin a man’s life, and tear apart his relationship with his children even without filing criminal charges.
Supposing we did away with the whole extra parental rights section, what’s the problem with making that issue hinge on the outcome of the criminal trial instead of being a separate affair?
It seems the setup you’re dealing with now is perfect for declaring a man innocent but still never letting him see his kid again.
The reasoning is that children are young and have a right to “permanency.” That is, they need to end the case so the children can get on with their lives, one way or another. In Texas the parents typically have one year to demonstrate they are safe.
I immediately thought of the case against Ryan Ferguson, a college student who was locked up for ten years for his murder of a local news reporter.
Recently, after his release from prison, Ferguson was able to garner a ten million dollar settlement.
https://www.columbiamissourian.com/news/local/ryan-ferguson-awarded-million-in-damages-after-vacated-conviction/article_b694d516-65ca-11e7-aa57-3bb21d1f7d6a.html
The award came after six former Columbia police officers were found liable for fabricating evidence and violating Ferguson’s civil rights by coercing false witness testimony, falsifying evidence and neglecting to follow up on other potential leads while investigating the Heitholt murder.
In August 2015, Laughrey ruled in favor of Ferguson on most of his civil rights complaints, and in the past few days the officers signed a settlement agreement admitting to liability on the remaining counts.
SNIP
The six former police detectives are Bryan Liebhard, Jeff Nichols, Lloyd Simons, John Short, Jeff Westbrook and current Columbia Police public information officer Latisha Stroer. The lawsuit initially also named the City of Columbia, Boone County and Kevin Crane, who prosecuted the case, but they were dropped from the civil suit previously.
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One of the more atrocious aspects of the trials that allowed Ferguson to be found guilty was that there was mostly untested DNA found at the crime scene that did not belong to Ferguson, or the other man implicated in the murder.
This non-testing of relevant crime scene DNA seems to be a resounding and unfortunate theme of many prosecutions.
The defendant’s DNA is not found at the crime scene. Yet the police and district attorney ignore the unmatched DNA. They never bother to run the DNA through CODIS to see what scum bag it might belong to. However, a local warm body was seen somewhere near the crime scene: indict him, run him through the court system, and string them up! After all, what is important is quickly solving every murder case – not actually finding the perp who committed the crime.
A long while ago, probably circa 1999, I researched the innocent people who were in prison in Calif due to mandated minimum sentencing of drug laws.
Perhaps the very saddest account I read of how an innocent person was run into a 20 years prison sentence involved a young very pretty African American woman.
Her grandmother died and left her a nice sum of money. Being level headed, she went and bought a modest condo and then enrolled in a local college.
Unfortunately a local drug lord also lived inside her condo association. He would see her leaving her home and getting into her car. One day, he approached her for a date, and she refused.
Shortly after that, he was apprehended by DEA or police for the drugs he was running. He was then allowed to plea bargain in order to get a lesser sentence. He had a list of names, and he ratted out some of his business acquaintances.
Apparently he was still steamed about this young woman refusing him his advances, so he named her too.
Whether one of his closest business associates or the local police did the following, I have no idea. But someone gained entry to her condo, and packed her fridge full of drugs. Including cocaine.
Once apprehended, she had no one on any type of list to offer as help for her to get a plea bargain. She was railroaded thru our current justice system, and she was about 3 years into serving a mandated minimum of 20 years back in the late 1990’s.
Oh and BTW she was serving many years more than the drug lord!