Declan McCullagh and prosecutions

[Seth Finkelstein]

Tim May wrote:
> I probably should have said nothing to this journalist. If Declan is
> forced to testify,  beyond a very basic acknowledgement that he was
> the author of the articles in question, I sure plan to refuse to ever
> speak to any journalist again about anything which someone might
> twist in front of a jury. "Hey, Declan, nice weather we're having,
> eh?" I'll continue to be Declan's friend, presumably, but I just
> won't talk to him about anything that may get extracted from him in
> this or in any future star chamber prosecutions.

	I may regret this - but what's new here? Declan already
testified and provided quite a bit of evidence in the Carl Johnson trial:

http://www.freedomforum.org/templates/document.asp?documentID=7285

	You know this. That was two years ago. Why in the world does
this current testimony count, but not the last time Declan did that?

	I'm probably going to be deeply sorry for this, but the
following question has been bothering me for a while:

	Why in the world does anyone on this list trust Declan McCullagh?

	If you believe that the government is planning some sort of
repression, why ever say a single word to a person who will likely be
a key prosecution witness at your trial? At some level, I don't get it.

	Yes, Declan is sociable and gives a good dinner party and
chants the correct rants. Is that all that matters? Testifying for
the government in criminal prosecutions is considered just a minor
character flaw in such an ideologically lovable fellow-soul?

	I'm not a lawyer, but this is my view of the court issues
in this case: Declan's authorship of the articles is not in dispute.
The prosecution wishes to use them as evidence. In order for them to
do so, they have to put Declan on the stand, and he has to testify
not that he authored them, but under penalty of perjury, that they
are accurate. Now, the prosecution would like nothing better for
Declan to say "Yes, they're true so help me God, good-bye!".

	Star chamber??? The problem is the exact opposite. The
US legal system allows the accused to challenge evidence against him.
The defense attorney is going to want to impeach Declan's credibility
(this is not hard to do :-)). He'll likely get up and say something along
the lines of 'Mr. McCullagh, you're a sensationalist journo-monger,
aren't you? You provoked my client into outbursts of meaningless
rhetoric, which you then hyped-up to peddle your papers, didn't you?"
(not in quite those words, of course)

	This is a fact: Declan's motion is mainly about how he doesn't
want to be cross-examined by the DEFENSE. Not the prosecution, do you
get it, the DEFENSE:

   "The prosecutor has informed counsel for McCullagh that McCullagh will
    be asked only to verify the accuracy of statements by Bell that are
    included in the Articles. Bell's counsel, however, has made clear that
    cross-examination will not be limited to published information, and
    Bell might seek testimony regarding a variety of areas that Bell
    thinks will be helpful to his defense."
           ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
    ...
   "Requiring McCullagh to testify, even if it is very limited on
    direct examination, creates an impermissible burden by necessarily
    exposing McCullagh to the risk of an intrusive cross-examination
    that will interfere with McCullagh's current and future newsgathering."

	I'll say it again, because of where I'm writing: Declan's motion
makes very clear that his fear is the cross-examination, which stems
from the Sixth Amendement right of an accused to confront witnesses.
This couldn't be further from a police state or Star Chamber.

	A key request in Declan's motion is essentially that the
prosecution be given all the evidence it wants, but the defense be
hamstrung trying to impeach the credibility of that evidence. Yet
no-one who might, ah, be strongly affected by such a tactic in the
future, seems to be going through the roof about it. There's no
screaming he's in bed with the Fed, he's a stool-pigeon, he's a
collaborator, etc. etc. Granted, there's some unhappiness. But look,
he's moaning and groaning and minting reputation-capital about the
basic fact that he's being a witness for the prosecution in a criminal
trial! (again!)

	Once more, at some level, I don't get it:

1) Why now? Why didn't you stop talking after the Carl Johnson trial?
2) In general, why does anyone trust him given all I've outlined above?

	My prediction is that Declan will go testify, write some martyrish
articles about the inhumanity of it all, and then everything will reset
to be repeated in the next criminal trial where he's a prosecution witness.

	I should note, in case this message finds its way into some
evidence presentation, that whether Declan testifies or not right now
will make no difference in my estimation of him and as to whether I'd
advise anyone to "cooperate with his newsgathering efforts because he
is trustworthy and independent". My own views were formed long before
this particular case, and based on seeing how callously he treated the
legal risks of myself and other programmers (but that's another story).

__
Seth Finkelstein  Consulting Programmer  sethf at mit.edu  http://sethf.com