Declan McCullagh and prosecutions

[Seth Finkelstein]

Declan McCullagh wrote:
> It's true that I was subpoened in the Carl Johnson case (along with
> John Gilmore and perhaps some other list-members) and ended up
> testifying very briefly. My lawyer at the time indicated that because
> Johnson was not a source -- just some random guy who sent me a few
> messages -- I had no journalistic privilege that I could raise.
> 
> But I do now, and I have raised it.

	My question does not involve journalistic privilege _per se_. 
It is addressed to the reputational implications of testifying as a
witness for the prosecution in criminal trials (past, present, and future).

	By the way, again note you have raised privilege as a matter
against the DEFENSE. You are not being asked by the prosecution to do
anything but validate your articles under oath, in court, so they can
use those articles as incriminating evidence.

> As for the motion, I didn't write it, and those aren't the *moral* or
> *principled* objections I would raise (and I have raised). ...

	I'm absolutely sure they aren't. And those "*moral* or
*principled* objections" and a plane ticket get you to Tacoma.
It's an excellent legal motion, in terms of serving the interests
of the client. But the interests of the client and the interests
of the person facing years in jail aren't the same at all. And that
is manifest in the portion where the Court is asked to give the
prosecution its evidence, but severely limit the defense's ability
to attack the evidence via cross-examination.

	Which brings me back to my I-don't-get-it of why all of this
somehow seems to *increases* the reputation-capital of the person
being a prosecution witness in a criminal trial, to a group where
many seem to think a police state is always around the corner (if not
here already).

Greg Newby wrote:
> The advantage of talking to Declan is that maybe, possibly,
> some "freedom of the press" issues will let him avoid spilling
> everything.  In that case, you'd need to trust him to keep
> your best interests.

	But this is a worked-example of where his press interests are
contrary to the defendant's interests. It's spelled out in great legal
detail in his motion, and I summarized it colloquially.

	Can I summarize your argument to me as the classic
If-[he]-didn't-do-it-somebody-else-would ? Generally, this doesn't
work very well for the person who did do it. That is, is the situation
that he doesn't "develops a reputation as a turncoat", no matter how
many criminal trials he appears as a prosecution witness, if he just
complains mightily about doing it? It's what he *says*, not what he
*does*, which is determinative?

	I should disclaim that I'm not stating what Declan should or
should not do, according to my views. Nor again is this an issue which
has formed my own opinion of him. But it is a great mystery to me how
he seems to always come out ahead for being a government prosecution
witness, in the regard of many people who are supposedly under government
prosecution risk, when all is said and done (especially done).

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