Wednesday, May 15, 2019

And Justice For All?

Originally published January 21, 2013

Just to be perfectly clear, I’m not a lawyer. My approach is to examine what I personally consider to be misconduct based on a layman’s interpretation of the existing legal standards and nothing more. Only a legal expert (lawyer, judge, etc.) would be qualified to determine whether an illegal act or one which constitutes misconduct has actually occurred.

That said, there have been several high profile cases in the news recently which are closely connected to demands for transparency and freedom of access to information and where corruption of our judicial system appears to be in the works.
  1. Julian Assange of WikiLeaks, the site which leaks information provided by whistleblowers and/or hackers from around the world. Mr. Assange has not been charged with any crime;
  2. Bradley Manning, charged with providing secret information to WikiLeaks;
  3. Jeremy Hammond, charges related to the Stratfor hack; and
  4. Aaron Swartz, charges related to the MIT/JSTOR hack; Mr. Swartz allegedly committed suicide and the charges against him have since been withdrawn.
 The specific charges don’t really matter in this context. What matters is how each of these cases are being/were handled by the Prosecution and/or Judge involved.

Julian Assange
In between WikiLeaks first major public release of data and their second major public release of data, Mr. Assange was investigated for alleged and very minor sex “crimes”. Acts so minor that they would not be considered crimes in most other countries and which rest almost entirely on personal testimony rather than objective, verifiable evidence. Mr. Assange was interviewed while in Sweden regarding those claims, no charges were laid and Mr. Assange’s freedom to leave Sweden was not restricted.

I could get into the sheer stupidity of these particular laws which allowed this situation to occur but I’m going to leave that alone for now. Anyone who knows the specifics knows how completely idiotic this entire thing is from start to finish. All I can say is that I strongly suggest that any male visiting Sweden not make the mistake of having sex there. Seriously.

Around the time of the second major leak, while Mr. Assange was in London, UK, the Prosecutor claimed that a second interview was required. Mr. Assange agreed to the interview but wanted to remain in the UK and either conduct it through a video feed or have the Prosecutor come to the UK to conduct it.

Mr. Assange was well within his rights to make such a request and the acceptance or denial of the request was a matter of Prosecutorial discretion. That is the prosecutor could have acceded to the request but wasn’t required to by law.

The Prosecutor exercised their discretion by insisting that the interview had to be conducted in Sweden but provided no explanation as to why this was necessary.

Meanwhile, it was discovered through the Stratfor hack that a Grand Jury had met in the US and had secretly indicted Mr. Assange.

The only reasonable conclusion one can come to which might explain the Prosecutor’s refusal to accede to the reasonable accommodations requested by Julian Assange, is that Sweden has agreed to extradite him to the US to face the charges laid against him there.

Is this Prosecutorial misconduct? And on what grounds?
“Prosecutorial misconduct is conduct which violates court rules or ethical standards of law practice.” (See detailed definitions at the end of the post).
In my opinion, if Sweden is using Prosecutorial discretion as their means of trying to get Julian Assange back to Sweden on false grounds (the allegations made against him for which he hasn’t been charged) and in order to act against him by extraditing him to the US it certainly would “violate …  the ethical standards of law practice”.

In order to restore the confidence in and perception of justice of the Swedish legal system all the Swedish Prosecutor has to do is interview Assange by video from the Ecuadorian Embassy and then either charge him or close the investigation.

The misconduct here and potential for further misconduct is patently obvious if they continue to refuse this reasonable and simple solution.

Bradley Manning
(Note: At the time I wrote this, Chelsea Manning was using her birth name, Bradley and birth gender. It wasn't until much later that she requested her gender transition be recognized).

Bradley Manning, a member of the US military, was arrested and charged with allegedly leaking secret information to WikiLeaks.

He was held in what can only be described as tortuous conditions for nine months between, July 2010 and April 2011. He continues to be held without bail and awaiting trial. He was arrested in May, 2010 and his trial will begin in June, 2013 after pre-trial hearings in February, 2013 are complete. (Trial Date Correction. 2013.01.23)

In this case Prosecutorial discretion was invoked in determining the charges which, according to the defense amounted to an attempt to intimidate Mr. Manning into testifying against Julian Assange by overcharging him based on overstating the alleged harm that occurred.

According to the Prosecution it’s perfectly acceptable to exaggerate charges and keep someone in prison without bail for approximately 2 years and 7 months. It will be over 3 years by the time the case is finally heard. A final ruling on whether the case will be dismissed on the grounds that it violates Manning's right to a speedy trial will be made at the end of February. (Correction based on new information)

Are these the “ethical standards of law practice” that the US commonly adheres to or are they simply acceptable depending on who the defendant is?

Jeremy Hammond
Jeremy Hammond’s case is perhaps the clearest of all.

Mr. Hammond was charged for the Stratfor hack.

Ironically, the Trial Judge was the spouse of a Stratfor client who has apparently and to date refused to recuse herself from the case. She insists it be dealt with in court.

If this Trial Judge does not recuse herself, in my opinion, it will be a clear and obvious case of Judicial Misconduct for which she should be removed from the bench.
“The recusal of a judge may be requested:
Where he himself or his spouse has a personal interest in the dispute;”
(See detailed definitions at the end of the post).
 Aaron Swartz
Aaron Swartz is the saddest of all.

Mr. Swartz was charged with the JSTOR/MIT hack.

According to his family, Mr. Swartz was pursued by the Prosecution to such a degree that he committed suicide. Apparently this is the second Hacker this particular Prosecutor has driven to suicide.

The fact that two of this Prosecutor’s defendants met the same fate says a lot about how he handles his cases and defendants in general. And while it’s possible that this isn’t technically considered misconduct one has to wonder why it's not acceptable to do the following to witnesses and is considered misconduct:
“Threatening, badgering or tampering with witnesses;”
But it’s apparently okay to do that to the defendant? How is one an “ethical standard of law practice.” and the other not?

One of the most basic premises in law is supposed to be “presumed innocent until proven guilty” so how do we rationalize treating defendants like criminals before they’ve been convicted, or in the case of Julian Assange before he’s even been charged with anything?
“Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” --Canadian Charter of Rights and Freedoms

Definitions ------------------------------------------------------------------------
A legal presumption that benefits a defendant in a criminal case and which results in acquittal in the event that the prosecutor does not prove guilt beyond a reasonable doubt.

Canadian Charter of Rights and Freedoms
Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

That individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals.

Fundamental procedural legal safeguards of which every citizen has an absolute right when a state or court purports to take a decision that could affect any right of that citizen.

Discretionary powers exercised by the government's prosecution service such as whether to prosecute charge recommended by police, to stay an ongoing proceeding, plea bargaining, or the taking over of a private prosecution.

Prosecutorial misconduct is conduct which violates court rules or ethical standards of law practice. Examples, among others, may include:
Courtroom misconduct (making improper remarks or improperly introducing evidence designed to prejudice the jury: violating rules regarding selection of the jury; or making improper closing arguments);
Hiding, destroying or tampering with evidence, case files or court records;
Failing to disclose evidence that might tend to exonerate the defendant
Threatening, badgering or tampering with witnesses;
Presenting false or misleading evidence;
Selective or vindictive prosecution
Denial of a speedy trial rights
Use of unreliable and untruthful witnesses and snitches

Conduct on the part of a judge that is prohibited and which could lead to a form of discipline.
.... conduct prejudicial to the effective and expeditious administration of the business of the courts, or (an inability) to discharge all the duties of office by reason of mental or physical disability.
(A) judge's conduct must be free from impropriety and the appearance of impropriety and that both his official and personal behavior be in accordance with the highest standard society can expect. The standard of conduct is higher than expected of lay people and also higher than that expected of attorneys. The ultimate standard must be conduct which constantly reaffirms fitness for the high responsibilities of judicial office, and judges must so comport themselves as to dignify the administration of justice and deserve the confidence and respect of the public.


The use of a harsh and angry tone and demeanor,
Excessive arrogance,
Lack of impartiality,
Improper political or even charitable or fund-raising activities,
Sexually harassing conduct,
Off-the-record, private communication with a litigant about a pending case,
Criminal conduct,
Conflict of interest,
An ethnic or racial slur,
Physical or mental disability,
Bankruptcy or insolvency,
Misuse of prestige of office,
Allowing cameras in the courtroom,
Receiving a bribe or gift from a litigant,
Making it public comment on a pending case or which shows prejudgment
Failure to recuse oneself in an appropriate case, and
Administrative mismanagement such as a failure to render a judgment in a reasonable amount of time.

The recusal of a judge may be requested:
    Where he himself or his spouse has a personal interest in the dispute;
    Where he himself or his spouse is the creditor, debtor, presumed heir or donee of one of the parties;
    Where he himself or his spouse is related by blood or marriage with one of the parties or his or her spouse up to the fourth degree of kinship inclusive;
    Where there have been or have proceedings between himself or his spouse and with one of the parties or his or her spouse;
    Where he has, previously, had knowledge of the matter in the capacity of a judge or arbitrator or where the has counseled one of the parties;
    Where the judge or his spouse is entrusted of the administration of the property of one of the parties;
    Where there exists a link of subordination between the judge or his spouse and one of the parties or his or her spouse;
    Where there has been a notorious friendship or enmity between the judge and one of the parties....
"The party who wishes to recuse a judge shall have, on pain of inadmissibility, to do so as soon as he has knowledge of a ground of recusal.
"In no case may the request for recusal be made after the end of the oral arguments."

All of the above definitions are American. However, since American and Canadian law is somewhat based on British law I don’t expect the definitions to differ too greatly between countries nor have I bothered to check.

These definitions are intended to be nothing more than a general guide to this discussion.

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