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naraburns  nihil supernum  1yr ago (text post)   34966 thread views

Culture War Roundup for the week of March 6, 2023

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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.

Unfortunately, an action being 'merely' criminal does not prevent QI from applying. See Jessop for some unusually severe examples, where the Ninth Circuit specifically held that :

The absence of “any cases of controlling authority” or a “consensus of cases of persuasive authority” on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident. Wilson v. Layne, 526 U.S. 603, 617 (1999). Although the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins would be improper, they did not have clear notice that it violated the Fourth Amendment.

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.

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?

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.

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.

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".

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).

But 95% of criminal convictions don't even see the trial - why nobody tries to at least get some guilty pleas on perjury?

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.

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.

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.

The other reason is that if the lying was self-evident, the negative consequences are already ensured. .... A lying victim gets their aggressor acquitted.

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.

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