Monday, May 6, 2013

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.

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