Wednesday, July 20, 2011

Lies, Perjury, Irresponsibility, Gamesmanship

James B. Stewart suspects that America is suffering from an epidemic of perjury.  It says so in his new book, Tangled Webs: How False Statements Are Undermining America: From Martha Stewart to Bernie Madoff.  Here’s an excerpt (taken from here):

We know how many murders are committed each year — 1,318,398 in 2009. We know the precise numbers for reported instances of rape, robbery, aggravated assault, burglary, larceny, and vehicle theft. No one keeps statistics for perjury and false statements — lies told under oath or to investigative and other agencies of the U.S. government — even though they are felonies punishable by up to five years in prison. There is simply too much of it, and too little is prosecuted to generate any meaningful statistics.

Although lying seems to be an inherent part of human nature, the narrow but serious class of lies that undermines the judicial process on which government depends has been a crime as old as civilization itself. Originally prosecuted in England by ecclesiastical courts, by the sixteenth century perjury was firmly embedded as a crime in the English common law.

Mounting evidence suggests that the broad public commitment to telling the truth under oath has been breaking down, eroding over recent decades, a trend that has been accelerating in recent years. Because there are no statistics, it’s impossible to know for certain how much lying afflicts the judicial process, and whether it’s worse now than in previous decades. Street criminals have always lied when confronted by law enforcement. But prosecutors have told me repeatedly that a surge of concerted, deliberate lying by a different class of criminal — sophisticated, educated, affluent, and represented in many cases by the best lawyers — threatens to swamp the legal system and undermine the prosecution of white-collar crime.

Stewart’s take on the phenomenon might be a bit simplistic.  Here’s an excerpt from one book review of Tangled Webs:

“We know how many murders are committed each year — 1,318,398 in 2009,” he writes in the first sentence of “Tangled Webs.”

At this point, if I were caught up in Stewart’s prosecutorial spirit, I might object that the first sentence of his book is a lie. In fact, according to the F.B.I.’s statistics, an estimated 1,318,398 violent crimes, not murders, were committed in the United States in 2009. And a vast majority of these violent crimes didn’t involve murder; they involved robbery and aggravated assault. But of course, it would be hyperbolic and unfair of me to accuse Stewart of lying without knowing more about the motive behind his false statement. Perhaps it was an inadvertent error, in which case calling it a lie seems much too strong. On the other hand, perhaps it was a deliberate misrepresentation devised to create a more dramatic opening — perhaps, in other words, he felt that comparing lying to robbery would be less vivid than comparing lying to murder. Deliberate misrepresentation seems highly unlikely for a Pulitzer Prize-­winning journalist of his caliber, but without knowing more about his motives, I can’t make a fair-minded judgment about how seriously to treat his false statement.

Unlike Stewart, the Anglo-American legal system has long been sensitive to these fine distinctions. It has treated some lies more seriously than others, depending on the intent of the speaker and the effect on other people.

Although Stewart, now a business columnist for The New York Times, claims that lying has been on the rise, a more plausible thesis is that prosecutions for false statements have been rising — not because of growing contempt for the truth but because defendants are increasingly prosecuted for doing nothing more than denying their guilt to investigators.

Complicating matters is the widely disseminated meme of “three felonies a day”—the idea that American federal law is so onerous that a typical American citizen commits three felonies per day as he or she goes about his or her business. 

Another complication: Prosecutors themselves—those who report their outrage about perjury to Mr. Stewart—are not above taking the occasional liberty with the truth.  One doesn’t need to look hard: Here’s an example from—delving deep into the archives here—this week:

Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

Mr. Bradley’s findings were not presented to the jury and the record was never corrected, he said. Prosecutors are required to reveal all information that is exculpatory to the defense.

Now is a good chance to call attention to a personal approach to information responsibility.  I do not know whether Casey Anthony committed the crimes with which she was charged and of which she was recently acquitted.  It is my stated policy—motivated by information responsibility—to not have an an opinion about criminal charges unless I am a juror responsible for contemplating those charges.

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