Is the George Zimmerman case over yet?

The George Zimmerman-Trayvon Martin case is a tricky one for me. On the one hand, I obviously have a pro-defense bent. If George Zimmerman were my client, I would argue the heck out of self-defense. But my defense experience actually leads me to be more sympathetic to Martin. The pro-Zimmerman folks tend to describe Martin as a thug, a gang-banger, etc, even suggesting that the world is a better place without him. This is how people speak of my clients, so that makes me identify with Martin. Then there's my antipathy for guns and those who run around thinking they are making their neighborhoods safer by patrolling with concealed weapons. Thinking there might be such a guy running around my neighborhood makes me feel less safe. In the end, even if at the moment Zimmerman shot Martin it really was a matter of life or death, I personally come down on the side of it being Zimmerman's own fault. There wouldn't have been a shooting if Zimmerman hadn't brought the gun. There wouldn't have been a confrontation if Zimmerman hadn't followed a teenager who was minding his own business.

So it was with all of that in mind that I paid attention to this week's pre-trial hearings. Zimmerman's attorneys found evidence that Martin had been suspended from school, that he was involved in organized fights or texted his friends about those fights, that he smoked pot. It certainly seems reasonable at first blush that this evidence would be useful to the jury in determining whether Zimmerman acted in self-defense because it tells us something about the personality of Zimmerman's combatant. It corroborates Zimmerman's portrayal of Martin and thus lends credibility to Zimmerman's account.

The judge, though, ruled all that evidence was inadmissible (though the defense can ask again at trial as things unfold). The judge's reasoning is sound, based on the long-standing doctrine of self-defense. The question for self-defense as it has been stated for centuries is what would a reasonable person in the defendant's position believe? Would a reasonable person who knew what the defendant knew at that moment feel the need to resort to potentially deadly force? Therein lies the explanation for why the evidence about Martin's past was deemed by the trial judge to be irrelevant. None of that information about Martin was known to Zimmerman, so it sheds no light on what a reasonable person in Zimmerman's position would have believed.

I'm not sure any of this evidence would have been ruled admissible even if Zimmerman knew about it going into his encounter with Martin. Much of the evidence revolves around Martin being part of a circle of friends who apparently engaged in organized fights, whether they were some kind of Fight Club-style thing or stupid boys pretending they were boxers, I don't know. If Zimmerman knew Martin and his buddies fancied themselves boxers or liked to set up fights with other groups of guys, that still doesn't have anything to do with whether Martin or Zimmerman was the aggressor in this non-organized confrontation.

One of the pieces of evidence allegedly involves Martin watching as two friends beat up a homeless guy. Conceivably, I could see how that could be admissible in a world where a) Zimmerman knew about it and b) it started as the homeless guy making eyes at Martin and his friends or following them in a way they didn't like, a la what happened with Zimmerman.

As for the corroboration argument, that this evidence lends credibility to Zimmerman's story, it's been a long time since I've had a self-defense issue, so I haven't researched anything like that. But it's kind of sounding like character evidence. In my state, specific instances of conduct other than a conviction can't come in to show a person has a bad character trait. (I would have quoted it, but it's frankly a nearly indecipherable sentence.) So witnesses could testify that Martin had a reputation for fighting or for violence, but couldn't talk about specific instances. But the question still comes down to whether Martin having a reputation for fighting is relevant.

I understand why Zimmerman's lawyers want the evidence in. I would be making that argument for him if he were my client. I understand why the state opposed it and why the court ruled the way it did. Though the defense attorney in me really should be with the defense, in my heart of hearts, I'm with the prosecution on this one. I really don't think it matters how bad of a seed Trayvon Martin was, what kind of trouble he got into in school, whether he smoked pot, etc. He wouldn't be dead if George Zimmerman hadn't followed him with a gun. I just can't find a lot of sympathy for him, which makes me feel like a bad defender.


UPDATE: Ooh, so the video of Martin's friends beating up on a homeless guy? Wasn't that at all! It was video of two homeless guys fighting each other over a bike. Martin witnessed it and whipped out his cell phone. This seems to be the common modern experience: witness something, break out the phone's recorder. How many times have we heard of people doing this when an arrest is happening? I won't fault a teenager for not getting into the middle of a fight to break it up. Maybe the phone would have been better used to call the police before someone got seriously hurt. But maybe someone else was already doing that so Martin turned to the recorder. Either way, this pretty much settles it that evidence about this incident is totally irrelevant at Zimmerman's trial.

Eep, indeed

Ok, let's think of quick ways to get giant piles of cash. (That do not involve poles and wide expanses of uncovered skin...)

I did not win the powerball, so that's out for this week.

I could enter the Sonic Slam contest and win $25,000 when a Royal hits a grand slam in the bottom of the 6th inning... (No, I was not able to type that with a straight face because the odds of a Royal hitting a home run are worse than the odds of me winning the powerball.)

Hmm, there's walking out in front of a Rolls Royce or other luxury car.

I could sell all my books, DVDS, shoes, and dresses, but then what's the point of life.

I could sell a kidney.

I'm not really feeling any of these. That settles it. I need a book deal. Today. With a healthy advance. To pay for important "research," like a new car and a rebuilt retaining wall...

My first sort-of book review

A few weeks ago, I received an email asking me if I would like to have a book sent to me for free with the expectation that I would write about said book on my blog. I'm quite the reader (my house will eventually collapse under the weight of my books), so I'm not one to turn down a free book. Anyone who knows me ought to know my opinion can't be bought, certainly not for something as cheap as a hardback book. And, hey, most reviewers don't actually pay for the books they read. So, yes, the book was free, but my opinion is my own. And I can honestly say I probably would have eventually read this book, but I probably would have waited until it was out in paperback to buy it.

I know you're asking, "Geez, Sarah, what's the book already?!"

The book is "Mistrial: An Inside Look at How the Criminal Justice System Works... and Sometimes Doesn't" by Mark Geragos and Pat Harris. Mark Geragos is the well-known public face of the law firm that represented Scott Peterson, Winona Ryder, and Susan McDougal among others. Pat Harris is the lesser known partner in that firm. Each chapter takes a look at a player in the criminal justice system and tries to separate the popular myths from reality. The players are: defense attorneys, clients, prosecutors, judges, police officers, jurors, and the media.

Obviously, this is a book right up my alley. Once I got past my initial jealousy that they are authors of a published book and I am not, I got to reading. As you might guess from the title, the authors wanted to give readers who aren't players in the criminal justice system with a better feel for what actually goes on. They also wanted to point out flaws in the system and some ideas for correcting things. They aimed to do all of this in a conversational manner, rather than taking a more academic tone. So the book is filled with anecdotes and their experiences instead of lots of big picture data.

I'm not interested in talking about the writing, because it was perfectly serviceable writing. It isn't bad, nor is it stand-out spectacular. I will say I'm not sure how much I loved one little quirk of the writing. In each chapter, there would be small sections of italicized print that was one of the authors' personal comments. I wasn't sure why they used this technique. Was the other author not signing on to whatever was being written? Or were they just trying to make certain sections seem more personal? I wasn't sure how I was supposed to take these sections.

As for the content, to a large extent with me, it was an awful lot of preaching to the choir. (Sorry; it had to be said.) I agree with their complaints about prosecutors over-charging cases as I see it myself regularly. I agree that the tough on crime crowd has actually weakened the effectiveness of the criminal justice system. I agree that we incarcerate too many people and that sentences are getting too long for low-level crimes. And, yes, I fear that prosecutors are becoming less willing to negotiate, less willing to listen to the defense, and generally feel more entitled to a conviction just because they've filed a charge. Finally, random digs at Nancy Grace and her ilk are always appreciated by me. Nancy Grace is a bad woman and her show is a scourge on society. They also throw in digs on Ann Coulter, Wendy Murphy, and Keith Ablow, which I enjoyed.

The problem, though, is that I'm not the audience they needed to convince. They already had me on their side, as I have personal experience with all of the complaints they make in their book. The complaints are valid, but by being limited to their own anecdotal experience, they might seem self-serving to the lay reader. (Indeed, I found the phrase "self-serving" in a review I saw on goodreads.) I would love to think the book would reach some people and make them wonder if a new approach in the criminal justice system wouldn't be a good idea, but I fear the book will be too easy to write-off for people who are inclined to think defense attorneys are scum who represent scummier scum.

I do have a few little nits to pick, just because that's how I am. In the chapter on defense attorneys, they attempt to dispel the myth of the poor, sad underdog prosecutor. I say attempt because I don't know if people who aren't poor, sad underdog defense attorneys believed that section. (It's true. Prosecutors almost always have way more resources than the defense.) Anyway, on p.47, they write, "judges regularly lecture jurors that the accused is presumed innocent until the prosecution proves that he or she is guilty." [emphasis mine] My fellow Kansas defenders know what my beef with that sentence is. It's not until! It's UNLESS!!! Defense attorneys in this state spent a long, long time arguing for this change in our jury instructions and we ultimately prevailed. Until presumes that there is a point where the prosecution will prove the defendant's guilt. Unless does not. So defense attorneys in California, if your judge is instructing juries using the word "until," email me and I'll send you the issue, complete with the Kansas Supreme Court decision that said, "yes, the instruction should be unless, not until."

(If that seems nit-picky, keep in mind that lawyers regularly argue over word choice because we're trying to instruct juries as carefully and accurately as possible. Specific word choices matter a great deal. No one's conviction ever got overturned on the unless/until issue, but we did get the jury instruction changed so jury's hear a better instruction now.)

My second beef: The authors mention the case of Ronald Cotton, a man who was wrongly convicted of rape almost entirely on the very well-meaning but very wrong eyewitness testimony of the rape victim herself. When the real rapist was finally identified through DNA testing (a decade later), Mr. Cotton and the victim went on to become great friends who wrote a book together and work to teach people about the dangers of eyewitness testimony. Before he was exonerated, Mr. Cotton was actually convicted twice because his first conviction was overturned on appeal. And here comes my beef with Geragos and Harris. They actually refer to the flaws in his first trial as "legal technicalities." (p.212) GAH!!! I hear that obnoxious term, "technicality," from non-lawyers, but I really expect better from my fellow defenders. In Mr. Cotton's case, the first conviction was overturned because the prosecution had been allowed to introduce evidence of another rape (also not committed by Mr. Cotton). That evidence had no business being admitted at trial and was highly prejudicial. I might allow my beloved unless/until argument to be considered a "technicality," but the admission of totally irrelevant, highly prejudicial evidence at trial is not some silly technicality. It's a pretty substantive flaw in a trial.

Of course, they also wrote many, many, many sentences that I agreed with. Yes, we have all joked that the job would be great without clients (p.64). I do sleep very well at night (Chapter Two). They also made me realize how fortunate I am to practice in this state. Many of the closing arguments they complained about prosecutors routinely making at trial (pp.136-139) just aren't allowed in this state. These authors complained about these arguments for very good reason, which is why our courts don't allow many of them. It's got to be rough in states where anything seems to go in closing argument.

The final chapter of the book offers the authors' suggestions for ways to improve the criminal justice system. Some I would never have thought of as being major issues (like the idea to inform juries of the concept of jury nullification, which has never factored in to any case of mine). Some I'm not sold on (like professional jurors or more jury sequestration). Some I wholeheartedly agree with (improved eyewitness identification protections and revision of prosecutorial immunity.)

As it stands now, prosecutors are nearly entirely immune against civil judgments (or any consequences, really) for their misconduct that leads to wrongful convictions. Even willful, intentional misconduct is immune. Prosecutors fear that opening themselves up to civil lawsuits for missteps in investigations and prosecutions would have a chilling effect on them. I completely concur with authors' response, "We hope so!" (Ok, I added the exclamation point.) We should take steps to discourage prosecutors from withholding exculpatory evidence, from intentionally allowing racial bias to enter into jury selection, and from committing all sorts of other misdeeds.

One major suggestion that usually comes up that isn't in this book is the creation of independent crime labs, which would remove the science from the influence of police and prosecutors. I found it curious that the flaws inherent in having the crime labs be part of police departments never came up in the book. Are crime labs in California independent? Is there some other reason why this concern isn't on their radar?

This book works best when they're telling war stories, at least for me as I love a war story. The description  of the first time they met Michael Jackson was particularly intriguing. I enjoyed the insight into the Susan McDougal case, too. (Fun fact: At the time of the Whitewater Kenneth Starr nonsense, Harris was engaged to McDougal.) I would also dearly love to sit down with them over dinner and chat about Scott Peterson. Geragos promises that if anyone gives him 10 minutes to dispel the myths and Nancy Grace-fed rumors about that case and hear the real facts, he'll have that person seriously considering the possibility that Peterson is innocent. I've always had serious qualms about that case and share the authors' perturbation at the rise in charging people based not on evidence but on the fact that they didn't "act right" after the crime. Though if you think this book is about those big cases, you'll be disappointed. The big cases, and the lesser-known ones, aren't the subject of the book; they're just peppered throughout to illustrate the authors' points.

In the end, I think my fellow defenders will enjoy this book and relate to an awful lot of the specific points made and anecdotes told. Prosecutors will largely hate it and might well wonder why there aren't any acknowledgements of how defense attorneys contribute to flaws in the criminal justice system?! (It's because we are the least powerful players in the system and so the only real way we contribute to the problem is by being too overworked and burnt out to challenge some cases the way they should be challenged.)

As for lay readers, I hope they'll read this with an open mind and not see this as a self-serving rant by two particular defense attorneys but think about the flaws they're trying to point out. Will it help if I vouch for most of what they complain about?

If at first you don't succeed, try, try again. Well, at least try again once.

Gosh darn it, I keep finding interesting tidbits out from the Jodi Arias case. And since I have full use of both my eyes and ears, it's hard to avoid coverage. But the interesting tidbit is not about Arias herself, but rather about how Arizona operates its death penalty cases.

In a guilt phase of any trial, if the jury is unable to reach a unanimous verdict, the jury is hung and a mistrial is declared. Much as I dislike it, the prosecution is allowed to retry the case over and over until a jury reaches a unanimous verdict. Sometimes, they give up after 2 or 3 hung juries. Sometimes after 4 or 5, the defense can argue double jeopardy should kick in eventually and the case should be dismissed.  If I had my way, the prosecution would get one chance to convince 12 people of the defendant's case beyond a reasonable doubt. But that is a rant for a different day. Focus, Sarah.

In the sentencing phase of a death penalty trial, the jury (in all but one state, to the best of my knowledge, Florida being the outlier) must be unanimous to sentence the defendant to death. (Florida only requires 10 votes for death.) Anything less than that, and the defendant gets life. Defense attorneys the nation over are perfectly satisfied with 11-1 or 10-2 votes for death as that means their clients will get life. That's how it operates in Kansas and from my understanding the prevailing procedure: that a non-unanimous jury means a life sentence.

So I was curious when I saw that a deadlocked jury in the Arias case would mean the Court would impanel a new jury to hear the sentencing phase again. Huh? Turns out, by statute, Arizona allows the prosecution one second shot at getting a death sentence. If the first jury doesn't agree on a sentence unanimously, a new jury is selected and the sentencing phase is re-done.

Arizona's sentencing phase is actually done in two stages, the first being where the jury determines whether the prosecution has proven an aggravating factor beyond a reasonable doubt. Then after the jury comes back on that question, if they find the aggravator was proven, they move on to hearing the defense case in mitigation. I haven't researched exactly where the new jury picks up. My sense is that they just start the entire sentencing phase over from scratch, which from an evidentiary point of view they have to do anyway as the new jury is (theoretically) unaware of the real facts of the case and so needs to hear some limited presentation of the facts.

Then if the second jury is also unable to agree on death unanimously, that ends the death sentencing proceedings. The judge then decides the sentence, choosing between life without the possibility of parole or a life sentence with parole eligibility. It's that statutory provision for a second jury that makes Arizona quirky. It's possible that other states allow for this, too, so now I'll have to do some research.

I'd be curious to know how often prosecutors who are statutorily allowed to impanel a second jury actually choose to do so. It's a cumbersome and expensive process to select a jury for a capital case. I wouldn't be surprised to learn that Arizona prosecutors more often than not decline to prolong their cases by trying the penalty phase a second time. Or even that the family members of victims go to the prosecution and say, "Please just stop it. We're drained and can't take it again."

If any Arizona attorneys are reading this and have some idea on how often prosecutors drop the death penalty after the first jury hangs, please let me know. Or if you practice in another state that allows a second jury to be impaneled, I'd like to know that, too.

I really, really don't want to have to write about this case!

Come on, people. I don't want to blog about the Jodi Arias case. It is a stupid case that does not deserve to be famous. The issues in it are not worthy of national attention. Neither the victim nor the defendant are any more interesting than the victims and defendants in every other murder case currently pending throughout the nation. The only reason anyone should be talking about this case is as a starting-point for why we have developed this media monster that creates celebrities out of whatever random criminal defendant it latches onto.

But, goshdarnit, then today I read that Jodi Arias' childhood friend, who had planned to testify during the mitigation portion of the death penalty trial, was now declining to testify because she had received death threats and was feeling conflicted about the case. Wait. Back up. Death threats? She received death threats?!

First, let's just get this one thing out of the way: whoever made those death threats has definitely committed a felony and probably two (depending on how Arizona categorizes these crimes*). Criminal threat, obviously. And then there's intimidating a witness. Both of these things are obviously big no-nos. (At least I hope it's obvious...) Threatening people is not cool. Intimidating witnesses into not testifying is not cool. Interfering with a defendant's right to present mitigation at a death penalty trial is not cool.

Whatever really happened, it wouldn't have happened without Nancy Grace and her HLN cronies (yes, and other media outlets, but Nancy Grace is the worst) turning this case into a media circus. They've spent months vilifying this woman who otherwise wouldn't be known outside of her own and her victim's families. In that case, her childhood friend would probably have put aside her conflicting feelings (which are normal enough) and testified as she had planned. And as lots of other friends and family members of convicted murderers do at death penalty trials all across the country. No one is proud of their murdering friends; but they do recognize there is good in those people, too. I can't help but suspect that the sheer international notoriety of Jodi Arias largely contributed to the conflict leading the witness to bow out. (As a character witness, not a material witness, she can't be compelled to testify. It's also probably really bad strategy to try to get a witness who doesn't want to testify at a penalty phase to testify. Won't go well for your client.)

As for the death threat, it should go without saying that's not a terribly normal occurrence in death penalty trials. Maybe it's not fair, but I can't help but picture one of Nancy Grace's frothing at the mouth viewers, quite possibly ready to inject the 3-drug cocktail him or herself. I don't know how we get to a death threat being made against this woman without it being related to the insane, over-the-top, hateful coverage Jodi Arias has received on cable television and gossip sites.

Now I personally would find it hilarious if this incident and the over-the-top media coverage leads to an appellate reversal. The district court declined to grant a mistrial after the witness told of receiving death threats. If Arias goes on to receive a sentence of death, that could get very interesting. Any error or problem that contributes to a death sentence should be subjected to a higher level of scrutiny on appeal than that same error would receive in a trial that resulted in a life sentence. An appellate attorney could make a lot of hay about a case where participants were receiving death threats. I know my state court would be troubled. (I also know, though, that most of the Texas Court of Criminal Appeals, where defense attorneys sleeping during trial aren't a problem, wouldn't be.)

This will only be an issue if Arias is sentenced to death. Here's hoping that the jury spares us the years of Nancy Grace's ranting about an appeal by just sentencing her to life. And, hey, I won't have to write about this case again, either.





*Dorky lawyer alert. Depending on how various state statutes are written, the actual best charges may be misdemeanors in some places.

Those darn cocker spaniel eyes

The good news is that the thing that had me so stressed out yesterday isn't going to cost me any money, so I'm not going to have to come up with $1500 to pay for doggy surgery or a pile of doggy meds. And my sweet, sweet pup is perfectly healthy.

But the bad news...

She is not yet 7 and apparently her eyesight has been deteriorating for some time now. The vet estimates at worst she will be fully blind in 6 months, or it may take 2 years. She's obviously doing a bang-up job (get it? bang-up? Because the clue I had something was wrong was that she kept walking into things) adapting already, though, as it took me this long to notice something was really wrong. So there's no reason to think she won't keep adapting.

Her mommy may be the real problem. I'll have to be a lot more careful about not leaving my shoes and books and knitting projects lying around.

But, damn, I'm gonna miss that look.

Pardon me while I indulge in a little self-pity

So this is just how my life is. Nothing ever just goes smoothly. I can never get ahead. And just when I think I might be getting there, something else comes up. Before I've even had time to dream of a plane ticket to New York or a car that doesn't threaten to overheat every day, some crisis comes up that will eat up every spare dime (or at least all the emotional energy I have to spare or both). And there's never anyone else to share the burden.

It doesn't help that I'm the world's biggest pessimist and always assume the absolute worst (for which I blame my father).

It's exhausting.

And it requires way more wine than I can afford.

The high cost of prison phone calls

One thing that people who don't regularly communicate with people in prison may not think about is how prisoners make phone calls to their loved ones. And who pays for them.

Sadly, over the last decade or so, inmate phone calls home have become quite the racket. Departments of Correction sign contracts with private companies. In most states, the DOC gets a portion of whatever revenue is made on each phone call. Inmates, then, are paying ridiculous sums per minute, as much as we used to pay for international phone calls to really obscure countries. My college roommate served in the Peace Corps in Africa in the '90s. In the two years she was there, I made special arrangements to call her only a handful of times, treating each of them like a luxury because as a college graduate with a full-time job, one half-hour phone call would equal about 4 Friday night dinners out. So imagine how much harder it is on an inmate who makes $.12 an hour and just wants to talk to his mom or grandma once in a while.

It's just another way in which our correctional policies are hopelessly short-sighted. The DOCs love the current set-up because they get to earn money. And the private contractors obviously love it. But when we turn calls home into a luxury for inmates, we're only further decreasing the likelihood of inmates losing connections to their communities, their families, their friends. We're only further increasing their sense of isolation. Those inmates who are more isolated, less connected to their communities seem like the inmates most likely to reoffend upon release, don't they? The reality is that most prison inmates will be released some day, so it's in our best interests as a society to keep that in mind.

Plus, there's the fact that it's just not very nice to jack up prices on inmate phone calls. I don't think it's making prison a 5-star resort to grant them access to phone calls that don't cost an arm and a leg. I know it's not popular to suggest that we might be a little kind, show a little human decency, even compassion, to prison inmates. But, truly, it wouldn't kill us.

I was glad to see, then, that the FCC might actually be looking into this. I don't know if anything will actually change on that global a level, but it would be nice.

Hey Jodi Arias lawyers: you're doing it wrong

I don't want to say anything about the Jodi Arias mess. I don't want to get into the self-defense claim or the "should she get death" discussion (you know I think no one should) or even the celebrification of criminal defendants (I think you all know what I think of the Nancy Graces who created this monster).

Really, the only thing I want to say is this: no murder trial should take 5 months. I've had murder trials that involved multiple defendants, upwards of 40 charges, multiple victims, multiple incidents joined for trial. And not one of them has taken anywhere close to even half that time. For a one victim, garden variety murder case to take more than 2 weeks (separate from jury selection) is excessive in most cases. If the lawyers are taking longer than that, I can guarantee you they are putting on more witnesses than they should, taking too long with the witnesses, conducting cross-examinations when there is no need to, and doing a dozen other little things that are nothing but a waste of time.

I don't care what the attorneys think justifies such a lengthy trial. They are wrong. Universally, without exception wrong.

How can jurors possibly be expected to give up that much of their lives so attorneys can grand-stand, so every minute detail can be picked apart until nothing makes any sense? How can they be expected to pay attention and remember things? In his book "Mistrial" (full review coming soon), Mark Geragos talks about the Scott Peterson trial, also a 5 month trial. After the guilty verdict and death sentence, he talked to the jurors and asked them what they thought about what he considered the single most important piece of evidence that showed Laci was still alive at a time that made the state's case against Scott fall apart. None of the jurors had any idea what he was talking about. Because in 5 months of nonsense, they'd lost sight of the key details that might have made a difference. No attorney helps his/her case by taking so damn long to put it on and overwhelming the jury with minutiae. You aren't making your case if you're making the jury hate you for wasting months of their lives, either.

If I were ever at jury selection and the court and parties indicated they expected the trial to take anywhere near that long, I would be a menace. I would let them know I thought that was a sign that neither set of attorneys had any advocacy skills and that the judge had no control over the courtroom. In a trial that long, I would let it be known that I would keep track of which side took longer and vote against whichever party took longer, evidence be damned.

By all means, prosecutors should be allowed to make their cases. And of course I want all defendants everywhere to get to present their defenses. But if doing that takes five months, you're doing it wrong.

The judge in the Casey Anthony case should keep his mouth shut. It's bad enough when the judges in these unjustifiedly high-profile cases pursue their 15 minutes of fame. It's even more unseemly when a judge does it. If you really want to get on The Today Show someday, maybe being a judge isn't the right career path for you.

Lying is a crime?

Yeah, I'll say it. Lying to federal investigators should not be a crime. I'm pretty sure Martha Stewart would agree with me. Remember that the feds didn't get her on insider-trading charges. Instead, they got her on charges of making false statements to investigators, applying this statute:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device[ , ] a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry

shall be fined under this title, imprisoned not more than 5 years or, … 18 U.S.C. 1001(a)


This statute has, sadly, even been interpreted to cover the exculpatory no. As in a person who is accused of a crime says, "No, I didn't do it." See Brogan v. United States, 522 U.S. 398 (1998). Which means that pretty much any schmuck anywhere who is accused of a crime can have this federal charge tacked on if he tells any federal authority ever, "I didn't do it." So while the Fifth Amendment protects your right not to incriminate yourself, it doesn't protect your right to proclaim your innocence if you are, in fact, guilty. So says the US Supreme Court in interpreting this federal statute. You are still legally allowed to plead not guilty in a court of law without risking a charge under this statute. But don't tell the FBI guy you aren't guilty...

Which brings us to the poor, schmuck 19 year-old college buddy of the Boston bombing suspect who is now under house arrest and facing up to 8 years in prison. Not for conspiring to do the bombing itself. Not even for tampering with evidence after the bombing. Nope, just for lying. Just for being confused and scared  and muddled during intense interrogation. As one would expect a 19 year-old might be upon being questioned by federal authorities after learning that your acquaintance is the prime suspect in a terror attack. (With the term "intense interrogation," I don't mean beating or torture or anything like that, but just that investigators with lots of experience really, urgently wanting information from this guy.)

I don't trust this charge against the one kid, the US citizen. The other two, the Kazakhs, are charged with tampering with evidence. This third kid is saying he was just there with them, didn't know what was going on. The fact that he isn't charged with tampering with evidence makes me believe the feds don't really think he knew what was going on. But they'll get him on lying. Who knows, maybe they're just hoping to make sure he'll testify against the other two if those two did discard a backpack with evidence in it.

But the point about the lying charge is that it shouldn't exist. It's a bogus charge. People make misstatements. People get muddled, maybe don't remember exactly what time something happened, who exactly said what, whether you went to spot a first or spot b. Honestly, try to relate right now everything you did 3 days ago. Then try to tell it a second time without changing anything, without saying, "Oh, no, wait, it wasn't like that, it was like this." You can't do it. Especially not when talking to people who are trained to get people flustered, to take advantage of vulnerability.

The reality is that not all incorrect statements are "lies." People can get confused, just remember things wrong, or be unsure. All without any malice or intent to mislead. Most of us (really, probably all of us) do it on a daily basis. With no idea that we're "lying" because that isn't our purpose. Or we could have all sorts of totally benign, not relevant-in-our-minds reason for not coming entirely clean, like maybe I don't want to admit to the cops investigating my burglary that, yeah, I really did leave that pile of clothes in the bedroom instead of letting them think the burglar did it.

So take a freaked-out 19 year-old whose one friend may be a murdering terrorist and whose other two friends may have tampered with evidence and put him in a room with federal investigators and I guarantee you he'll slip up somewhere. And keep in mind that the investigators are allowed to lie to him, in all sorts of extravagant ways. They can tell him they have witnesses and evidence they don't. They can confuse and befuddle him, tell him his memory is wrong, his answers are wrong, etc. And if in all of that, he says two things that are contradictory, changes his story, or gets a time or date wrong, boom, he can be charged with a federal crime.

I hate it. I think it's wrong. If someone is seriously, intentionally giving wildly false statements to throw off an investigation, that person can be charged with obstruction. But making it a federal offense to make false statements to federal authorities is just way too broad. And in case of this particular 19 year-old, it's probably being used to catch up in a terrorism investigation net a kid who doesn't deserve to have his life ruined for having bad taste in friends.