This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
Much of the criminal justice systems operates on an assumption (or rather, an aspiration) that prosecutors and law enforcement should be trusted to carry out their duties honestly. While I don't believe this assumption is worth much, it's the reality we live in given the limited avenues for redress available. For one, prosecutors and judges have absolute immunity for misconduct, and law enforcement has qualified immunity for misconduct (
which, practically speaking is basically absolute immunity with a few extra stepsEdit: as @Gdanning mentions here, I significantly overstated the equivalence here). If you get fucked over by any of them, tough luck. Two, law enforcement has a close working relationship with prosecutors, and most judges are former prosecutors. Because of how the adversarial system is structured, there's a systemic bias against ruling in favor of defendants' (read: criminal's) rights. This is especially a problem when you consider that literally the only source of search and seizure precedent comes by definition from criminals asking a court to ignore damning evidence because it was illegally seized.I just described a system where the levers of power are held by a fairly cloistered group of people, and it all skews heavily on the side against the meek defendant. There are indeed some attempts to artificially inject fairness into the system. Because civil lawsuits are assumed (not always reasonably) to involve two opposing parties on roughly equivalent footing, the evidentiary standard there is preponderance, which is basically 50% plus one. But for criminal trials, where it's the full weight of the government bearing down on a single person, it's beyond a reasonable doubt, which is basically you better goddamn be real fucking sure. Another difference pertinent for this post is what would be referred to as Brady obligations, where prosecutors are obligated to turn over every evidence which might be helpful to the defendant (who, unlike a civil litigant, has no equivalent obligation to the other side).
For the most part, verifying that a prosecutor has met their Brady obligations is near-impossible. Prosecutors are considered part of law enforcement, and they naturally have access to an entire universe of information which the other side will never see (for example, details about ongoing investigations which would tip off the subjects if it was revealed prematurely) so whether or not they've turned over every Brady material is an exercise in trust. I have to trust that the prosecutors aren't lying, and that they reviewed all the evidence they have and made a fair assessment on whether or not it's exculpatory. This is why virtually every Brady scandal involves exculpatory evidence that came to light accidentally. A fuck-up, in other words.
And oh man was there ever a fuck-up.
This happened this week during the jury trial of Ethan Nordean, a Proud Boys leader charged with seditious conspiracy stemming from his actions in January 6th. I haven't followed his case at all, but his defense attorney just filed this banger of a notice regarding the testimony of FBI agent Nicole Miller. As a government witness, Miller has an obligation to turn over any written statements she made regarding the subject of her testimony (this is known as a Jencks obligation). FBI agents use an instant messaging system called Lync, and Miller handed over a spreadsheet with 25 rows of Lync messages. Miller testified that this was her entire Jencks obligations, and she denied withholding any messages about Nordean's conspiracy charges, denied withholding any messages about whether anyone listened in on attorney-client calls, and denied withholding any messages about whether any reports (dear heavens) were falsified. And so forth. Miller just said no, absolutely not, no way.
Normally this is where the story would end, except Nordean's attorney revealed that the spreadsheet Miller had sent contained about a thousand hidden Excel rows, many of which absolutely one hundred percent directly contradicted Miller's testimony. For example, there were messages about:
An agent asking Miller to edit a confidential informant report to remove mentioning the agent was present
An agent reviewing attorney-client communication about trial strategy
Agents openly expressing doubt about a Proud Boys leader's involvement in a conspiracy
And so on.
I'm certainly excited to see how Miller tries to get out of this vise. My assumption is that the prosecutor will dismiss charges against Nordean in a feeble attempt to make this go away (or a judge can do it for them, which is what happened with the Bundy ranchers).
It's certainly fucking funny that an FBI agent tried hiding Excel rows thinking they were deleted (this is known as the peek-a-boo fallacy). More seriously, FBI agents are acting this brazenly even though they're well aware how much public scrutiny is directed towards J6 cases. I think one can reasonably assume they'd have even fewer scruples in cases involving defendants no one gives a shit about.
Some jurisdictions (starting with North Carolina in 2004) have what's called an open-file discovery rule where everything in the case file (no matter how banal) is provided to the defendant by default. Tucker Carlson got access to and released footage of Jacob Chansley (aka QAnon shaman who was sentenced to 41 months in prison) calmly walking inside the capitol, which appears to contradict his charging documents. More relevantly, Chansley's attorney apparently never got that footage before. I assume the government will now argue that the footage they kept hidden wasn't that exculpatory but really, that should always be up to the defense attorney to decide.
Of course, even if open-file became the norm, law enforcement will get wise not to put incriminating statements on paper (hot tip: when doing FOIA requests, pay attention to any email or text that asks to speak on the phone about a sensitive subject). So beyond open-file discovery, I'd also keep riding my other cute little hobby horses and argue this is another reason to jettison qualified/absolute immunity. Anyone disagree?
Qualified immunity is absolute travesty, but I understand it protects from civil lawsuit in situations where it is not clearly established the government official was acting unlawfully. Here it is a clear case of perjury, which as far as I know is a criminal matter, and I think it is pretty clear to a law enforcement officer testifying in court that outright lying is not lawful? I don't think there's any principle that justify this, it's just how it happens that there's no consequences for government officials.
Cops are almost never criminally prosecuted for anything done in the course of their job (in part because prosecutors and cops work closely together), and perjury is virtually never prosecuted against anyone period. You're right that QI might not apply towards Miller's specific actions, because lying on the stand is clearly established as bad. However, I can't really articulate the specific harm that Miller's lying (what we know about) directly caused, so I'm not sure that Nordean can recover much. And because the discovery happened by accident, it doesn't really affect how other agents are deterred from pulling the same shit.
In terms of other consequences, I do expect Miller's career to be somewhat stunted. She can never again be called to testify in any case without the defense attorney being able to impeach her credibility by bringing up the Nordean trial saga.
But perjury is a criminal matter, is it not? So there shouldn't be the need to demonstrate anybody specifically harmed by it, at least in theory? In practice, of course, cops routinely get away with crimes much more heinous than perjury. I wonder though why there's no interest in prosecuting perjury at all and why we are still pretending testimony is worth anything if lying under oath has almost no consequences.
Many reasons. Perjury is extremely difficult to prove because of the knowledge element: someone has to make a statement that they knew was false at the time. How do we know that they didn't just misremember, or that they were mistaken, or that they were misled? Etc. Getting slam dunk evidence otherwise is very rare.
The other reason is that if the lying was self-evident, the negative consequences are already ensured. A lying defendant gets convicted. A lying victim gets their aggressor acquitted. A lying businessman loses the contract dispute lawsuit. A lying cop will likely never get to testify again, which means basically permanent desk duty or finding another job. And so on.
This approach seems different from how the law works in other areas. If you steal something and you are caught, the law doesn't say "it's enough that we took back what you have stolen and also everybody knows you're a thief". It you forge a check - the law doesn't say "enough that bank detected it and didn't pay out anything". Usually restitution and reversing the immediate consequences of a crime is only a small part of what happens, and there's a punitive aspect which is aimed to deter people from defecting. Usually the argument is because otherwise there's no deterrent for me to not commit the crime - i.e. if I lie on the stand, worst thing they catch me and I lose the case. But if I tell the truth, I'll lose the case anyway, so there's no downside for me not to lie - absent the punitive deterrent. Why doesn't it apply in the case of perjury?
But 95% of criminal convictions don't even see the trial - why nobody tries to at least get some guilty pleas on perjury?
As for knowledge - in the specific case Miller testified that the messages that she was part of don't exist. I think unless she proves she was struck by a bout of very convenient amnesia, it is pretty clear she knew the messages in fact existed. I mean, if somebody actually wanted to do it.
This is actually often the case. Shoplifting is a hassle to prosecute unless it involves high-value items or becomes enough of a nuisance for the store. My shoplifting clients (almost always drug addicts) have gotten caught perhaps a dozen times for each prosecution they face. I've personally seen security guards forcefully take back the items and then let the person go because it wasn't worth calling the cops over it. Same with many other low-level crimes like trespassing or whatnot. Unless the business or the local authority is willing to eat the costs of enforcement (and certain places are if they're rich enough) a lot of petty crime will go unpunished.
(Side note: a lot of places explicitly prohibit their security from placing hands on thieves for lawsuits reasons, but not from the thieves, but rather from their workers getting injured).
It's just unusually hard to prove. Specific intent crimes are hard, proving materiality is hard, and combine that with all the other rules of evidence hurdles and it's rarely worth it. If there's clear evidence of perjury, they likely also committed other more serious crimes, so why bother? One recent prominent exception involved the police officer who arrested Sandra Bland, probably because it was a high profile case and the only thing they could really nail him on. The link cites an article that found between 1966 to 1970 there were only 335 criminal perjury cases total.
Miller's case is a slam dunk example of perjury, she would have no defense. The only remaining question is whether the prosecutors will bother.
More options
Context Copy link
More options
Context Copy link
A lying "victim" using the legal system to harass their innocent alleged aggressor already at least partially achieved their goal however. Not securing a conviction is a negative consequence in the sense that the harassment wasn't as severe as it could have been, but just getting through the process without sanction is still a net positive for the harasser.
This is true, but it's a hard balance to strike. For example there's this case from 2009 in Washington state where a woman claimed to have been raped at knifepoint. The cops didn't believe her and threatened her with criminal charges for filing a false police report if she didn't retract her story. She retracted, and it wasn't until many years later that they caught the rapist in another state and found in his possession photos of the woman tied up in her apartment — exactly as she first reported it.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link